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2,400 | https://www.mspb.gov/decisions/nonprecedential/Aragon_Araceli_DE-315H-19-0049-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARACELI ARAGON,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DE-315H-19-0049-I-1
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shelly Carver , Ogden, Utah, for the appellant.
Ian J. Watson , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant reargues the merits of the agency’s decision to
terminate her and provides a copy of a favorable decision for state unemployment
insurance benefits but does not challenge the administrative judge’s findings
concerning the dispositive jurisdictional issue . Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 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:
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 | Aragon_Araceli_DE-315H-19-0049-I-1__Final_Order.pdf | 2024-02-07 | ARACELI ARAGON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DE-315H-19-0049-I-1, February 7, 2024 | DE-315H-19-0049-I-1 | NP |
2,401 | https://www.mspb.gov/decisions/nonprecedential/Alam_Sheharyar_DC-0752-18-0333-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHEHARYAR ALAM,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-18-0333-I-1
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sheharyar Alam , Elkridge, Maryland, pro se.
Kylie Tejera , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for failure to prosecute. On petition for review,
the appellant asserts that he did not have time to file a response and that he did
not receive notice of his filing obligations due to his email spam filter. Petition
for Review File, Tab 1 at 4-6. Generally, we grant petitions such as this one only
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
in the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant’s assertions do not persuade us that the administrative judge
abused her discretion in dismissing this appeal. While his appeal was pending,
the appellant failed to comply with an acknowledgment order and two show cause
orders. Initial Appeal File (IAF), Tab 2 at 2-7, Tab 5 at 1-5, Tab 7 at 1-2. The
appellant also failed to respond to the agency’s motion to dismiss. IAF, Tab 6
at 4-13. Thus, the record shows that the appellant did not exercise due diligence
in prosecuting his appeal. See Williams v. U.S. Postal Service , 116 M.S.P.R. 377,
¶¶ 7-9 (2011); 5 C.F.R. § 1201.43(b).
As a registered e-filer, the appellant consented to accept all documents
issued by the Board in electronic form. IAF, Tab 1 at 3. As such, the appellant is
required by regulation to ensure that e -mail from @mspb.gov is not blocked by
filters and to monitor his case at the Repository at e-Appeal Online to ensure he
receives all case -related documents. 5 C.F.R. § 1201.14(j)(2)-(3). Therefore, we
find that the administrative judge properly exercised her discretion to impose the
sanction of dismissal with prejudice.
Accordingly, we affirm the initial decision. 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Alam_Sheharyar_DC-0752-18-0333-I-1__Final_Order.pdf | 2024-02-07 | SHEHARYAR ALAM v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-18-0333-I-1, February 7, 2024 | DC-0752-18-0333-I-1 | NP |
2,402 | https://www.mspb.gov/decisions/nonprecedential/Atkinson_Angela_A_AT-0432-20-0510-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA A. ATKINSON,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.DOCKET NUMBER
AT-0432-20-0510-I-1
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
G
eorgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Daniel Shaver , Orlando, Florida, for the agency.
Samantha R. Cochran , Esquire, Kennedy Space Center, Florida, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her chapter 43 performance-based removal. On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
appellant challenges, among other things, the validity of her performance
standards. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the appellant’s discrimination
and retaliation claims, we AFFIRM the initial decision.
BACKGROUND
The appellant, who is deaf, was formerly a travel office Financial
Management Specialist. Initial Appeal File (IAF), Tab 1 at 8, Tab 45, Hearing
Recording 2 (HR 2) (testimony of the appellant). The appellant’s primary duty
was to monitor the Travel Request Mailbox (TRM), an electronic mailbox
designated to receive, among other things, requests for travel authorizations or
reimbursement. IAF, Tab 44, Hearing Recording 1 (HR 1) (testimony of the
Travel Office Lead). The appellant’s responsibilities were documented in the
Travel Request Mailbox Instructions (TRMI), a detailed set of instructions for
monitoring the TRM, and included classifying emails in the TRM inbox,
forwarding emails to designated personnel, and documenting the status of
travel-related requests. Id.; IAF, Tab 24 at 23-38. Under critical element 2 of her
3
performance standards, Process Civil Service Travel, the appellant was required
to, among other things, produce accurate work with “no significant errors.” IAF,
Tab 21 at 34-36. The agency accommodated the appellant’s deafness through
various means, including providing her the assistance of American Sign Language
(ASL) interpreters. HR 1 (testimony of the equal employment opportunity (EEO)
Specialist).
As the individuals who oversaw the appellant’s performance, the
appellant’s supervisor and the Travel Office Lead notified the appellant of her
mistakes and provided her with training and instruction. Id. (testimony of the
Travel Office Lead, testimony of the appellant’s supervisor); IAF, Tab 24
at 97-98, Tab 42 at 26-45, Tab 49 at 10-84, Tab 50. In October 2016, the
supervisor informed the appellant that she was not meeting expectations in
critical element 2 due to the significant number of errors she was making in
monitoring the TRM. HR 1 (testimony of the appellant’s supervisor). In May
2017, after deeming the appellant’s performance unacceptable for element 2 in
her first performance appraisal, the supervisor placed the appellant on a 60-day
performance improvement plan (PIP). IAF, Tab 21 at 31-55. The PIP informed
the appellant that she was required to demonstrate acceptable performance in
critical element 2 by the end of the PIP period by, among other things, “correctly
address[ing] all emails in the [TRM] according to the TRMI.” Id. at 53-55. The
agency provided the appellant with a video ASL translation of the TRMI before
the PIP and full-time assistance of interpreters prior to and throughout the PIP.
Id. at 53; IAF, Tab 24 at 91-94. The appellant’s supervisor and the Travel Office
Lead met with the appellant regularly during the PIP to discuss her performance,
including her continuing errors. IAF, Tab 22 at 11-34, 38-60, 64-82, 89-103,
Tab 23 at 19-58, 65-102.
After the PIP expired, the agency removed the appellant under 5 U.S.C.
chapter 43 for unacceptable performance in critical element 2 of her position.
IAF, Tab 1 at 8; Tab 23 at 4-16. The supervisor noted in the proposal notice that,
4
among other failures, the appellant did not correctly address all emails in the
TRM because her over 180 errors during the PIP period were “excessive.” IAF,
Tab 23 at 10-14. The appellant timely appealed her removal to the Board and
alleged disparate treatment disability discrimination, failure to accommodate, and
EEO retaliation. IAF, Tab 36 at 1-2, Tab 43 at 3-5.
After holding a hearing, the administrative judge issued an initial decision
affirming the removal and denying the appellant’s affirmative defenses. IAF,
Tab 51, Initial Decision (ID). The administrative judge found that the agency
established the elements of its performance-based action in accordance with the
standards set forth in Santos v. National Aeronautics and Space Administration ,
990 F.3d 1355 (Fed. Cir. 2021) and Semenov v. Department of Veterans Affairs ,
2023 MSPB 16. ID at 8-17. The administrative judge found that the appellant
failed to prove her failure to accommodate affirmative defense, finding that the
appellant was a qualified individual with a disability, but she was not denied a
reasonable accommodation. ID at 18-22. The administrative judge also found
that the appellant failed to prove disparate treatment disability discrimination
because she provided no evidence that her disability was a motivating factor in
her removal. ID at 22-23. Finally, the administrative judge found that the
appellant failed to show that her protected EEO activity, which occurred while
she was employed at another agency, was a motivating factor in her removal. ID
at 23-25.
The appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s performance standards were valid.
In affirming the appellant’s performance-based removal, the administrative
judge correctly cited and applied the Board’s precedent setting forth the relevant
legal standard for such actions under chapter 43, and she found that the agency
5
proved all elements of its case by substantial evidence. ID at 8-17. The appellant
has not challenged those findings, except as to the validity of her performance
standards, and we find no reason to disturb them.
On review, the appellant repeats arguments which she raised below
regarding the validity of her performance standards. PFR File, Tab 1 at 7-11;
IAF, Tab 45, HR 2 (the appellant’s closing argument). Because the
administrative judge did not address these arguments, we do so here.
To prevail in an appeal of a performance-based removal under chapter 43,
the agency must prove by substantial evidence that, among other things, the
employee’s performance standards are valid. Semenov, 2023 MSPB 16, ¶ 14;
Lee v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010). In
challenging the validity of her performance standards, the appellant first claims
that her standards were vague because the requirement that her work contain “no
significant errors” was overly subjective, as what constituted a “significant” error
was never defined. PFR File, Tab 1 at 7; IAF, Tab 21 at 36. The Board has held
that the fact that a performance standard may call for a certain amount of
subjective judgment on the part of the employee’s supervisor does not
automatically invalidate it. Henderson v. National Aeronautics and Space
Administration, 116 M.S.P.R. 96, ¶ 23 (2012). The Travel Office Lead and the
appellant’s supervisor testified that they understood “significant errors” to be
those which impacted the processing of travel-related requests and gave multiple
examples of such errors by the appellant. HR 1 (testimony of the Travel Office
Lead, testimony of the appellant’s supervisor). In light of this common-sense
interpretation and the extensive feedback the appellant received regarding her
errors both before and during the PIP period, we find that the use of the word
“significant” did not render the standard vague or overly subjective. See
Salmon v. Social Security Administration , 663 F.3d 1378, 1381 -82 (Fed. Cir.
2011) (finding performance standards were not impermissibly subjective because,
inter alia, the employee’s supervisor “gave direct, precise feedback on the
6
deficiencies in [the employee’s] work and clear instruction on how to remedy
them”).
Next, the appellant claims that, by requiring her to “correctly address all
emails in the [TRM] according to the TRMI,” the PIP rendered the “no significant
errors” standard an absolute standard . PFR File, Tab 1 at 7-9; IAF, Tab 21 at 54.
The appellant is correct to assert that the standard in the PIP was facially
absolute. See Guillebeau v. Department of the Navy , 362 F.3d 1329, 1334 (Fed.
Cir. 2004) (finding that standards requiring that “all web pages” meet certain
requirements provided for no exceptions and were thus absolute). The record
shows, however, that it was never applied as an absolute standard. In Guillebeau,
362 F.3d at 1337, the U.S. Court of Appeals for the Federal Circuit found
permissible an agency’s removal of an employee under a performance standard
which, though absolute, was applied reasonably. Here, the appellant’s supervisor
testified that it would have been unrealistic to expect the appellant not to make
any errors. HR 1 (testimony of the appellant’s supervisor). She added that she
deemed the appellant unsuccessful based on the significance of her errors in
impact and amount, as well as their repetitive nature, which evidenced a failure to
learn the TRM process. Id. Similarly, the Travel Office Lead testified that he did
not expect the appellant to be perfect but that the frequency of her errors was
excessive. Id. (testimony of the Travel Office Lead). Because the record shows
that the agency did not apply an absolute standard to deem the appellant’s
performance unsuccessful but did so based on her many significant errors under
the reasonable “no significant errors” standard , we find that the agency did not
hold the appellant to an invalid absolute standard. See Salmon, 663 F.3d at 1382
(stating that the analysis of the validity of performance standards is not confined
to the written standard).
The appellant also submits new arguments on review regarding the validity
of her performance standards, which she did not raise below. The Board
generally will not consider an argument raised for the first time in a petition for
7
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). Because the appellant has not shown that
these new arguments are based on new and material evidence not previously
available despite due diligence, we need not consider them. In any event, the
appellant’s new arguments lack merit. Her claim that the proposal notice cited
certain performance indicators that were not in the PIP and thus “readjusted” her
standards is inaccurate, as those indicators were contained in her original
performance standards. PFR File, Tab 1 at 11; IAF, Tab 21 at 34-35, Tab 23
at 11. The appellant also claims that the agency intentionally misled her by
requiring certain deliverables described in the PIP but in a different paragraph
than that which listed her ongoing duties under the PIP. PFR File, Tab 1 at 11;
IAF, Tab 21 at 54-55. However, she was clearly instructed in the PIP to provide
the deliverables she references, including the weekly workload reports and a
certificate for a training course. IAF, Tab 21 at 54. That these instructions for
one-time or intermittent obligations were listed in a paragraph other than that
which listed her ongoing duties did not detract from their clarity. Accordingly,
these new claims afford no basis to disturb the administrative judge’s conclusion
that the performance standards were valid.
The appellant has not proven her affirmative defenses of disparate treatment
disability discrimination and EEO retaliation.
After the initial decision was issued, the Board clarified the proper analytic
framework for adjudicating disparate treatment disability discrimination claims.
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 35-42. Under
Pridgen the appellant bears the initial burden of proving by preponderant
evidence that her disability was a motivating factor in the agency’s removal
action. Pridgen, 2022 MSPB 31, ¶ 40. The administrative judge here found that
the appellant failed to show that her disability was a motivating factor in her
removal. ID at 22-23. Because we agree with the administrative judge that the
8
appellant failed to meet her initial burden, the administrative judge’s reliance on
a now-obsolete legal standard does not affect the result in this case.
After the initial decision was issued, we also clarified the proper analytic
framework for adjudicating claims of EEO retaliation. Claims of retaliation for
engaging in activity protected by Title VII or the Age Discrimination in
Employment Act are analyzed under the motivating factor standard. Pridgen,
2022 MSPB 31, ¶¶ 20-22. However, an appellant claiming retaliation for
engaging in activity protected by the Rehabilitation Act must show that retaliation
was a “but-for” cause of the agency’s action. Desjardin v. U.S. Postal Service ,
2023 MSPB 31, ¶ 44-47. The “but-for” standard is more stringent than the
motivating factor standard. Desjardin, 2023 MSPB 6, ¶ 31; Pridgen, 2022 MSPB
31, ¶ 47.
It appears that the appellant’s prior EEO activity was her participation as a
witness in an EEO case filed by another employee at a different agency. IAF,
Tab 57 at 3. Whether we considered the appellant’s claim under the lesser
motivating factor standard or the more stringent “but-for” standard, we agree with
the administrative judge’s finding that the appellant failed to show that her
participation in the EEO process at another agency was a motivating factor in the
agency’s decision to remove her.2
The appellant has not proven her affirmative defense of reasonable
accommodation disability discrimination.
An agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless that agency can show that accommodation would cause an undue
hardship on its business operations. Miller v. Department of the Army ,
2 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s disparate treatment disability discrimination or
EEO retaliation claims, it is unnecessary for us to address whether the appellant’s
disability or EEO activity was a “but-for” cause of the removal action. See Pridgen,
2022 MSPB 31, ¶¶ 20-25, 30.
9
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). In order to establish
disability discrimination based on a failure to accommodate, and employee must
show that: (1) she is an individual with a disability, as defined by 29 C.F.R.
§ 1630.2(g); (2) she is a qualified individual with a disability, as defined by
29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation. Miller, 121 M.S.P.R. 189, ¶ 13. It is undisputed that the
appellant is a qualified individual with a disability.
The appellant contends on review that the administrative judge erred by
finding that the agency provided her with a sign language interpreter on demand
and ultimately provided her with a full-time interpreter when she requested one,
beginning in May 2017 and continuing throughout the PIP.3 PFR File, Tab 1
at 11-12, 14; ID at 19-21. The administrative judge based her finding on her
assessment of the witnesses’ credibility, to which we must defer absent
“sufficiently sound” reasons for not doing so. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not proffered
sufficiently sound reasons here, and, thus, she has not shown that the agency
failed to provide adequate interpreter assistance as a reasonable accommodation.
We have considered the appellant’s remaining arguments raised in her
petition for review, and we discern no basis to disturb the findings in the initial
decision. We therefore deny the petition for review and affirm the initial decision
as modified herein.
3 Similarly, the appellant’s argument that the agency delayed in providing her with a
video ASL translation of the TRMI does not show that it denied her a reasonable
accommodation because the translation video was provided to her prior to the start of
the PIP. PFR File, Tab 1 at 12-13; IAF, Tab 21 at 53; HR 1 (testimony of the Travel
Office Lead).
10
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
12
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
13
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Atkinson_Angela_A_AT-0432-20-0510-I-1_Final_Order.pdf | 2024-02-07 | ANGELA A. ATKINSON v. NATIONAL AERONAUTICS AND SPACE ADMIN, MSPB Docket No. AT-0432-20-0510-I-1, February 7, 2024 | AT-0432-20-0510-I-1 | NP |
2,403 | https://www.mspb.gov/decisions/nonprecedential/Darelius_Scott_E_PH-0842-18-0103-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT E. DARELIUS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0842-18-0103-I-1
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Scott E. Darelius , Pawtucket, Rhode Island, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying his application for a deferred annuity under the Federal
Employees’ Retirement System. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant reasserts his arguments that he was
“terrorized” by the Postmaster during his employment with the U.S. Postal
Service, he was wrongfully terminated, and he previously brought the matter to a
judge. Petition for Review (PFR) File, Tab 1 at 1-2; Initial Appeal File (IAF),
Tab 1 at 3, Tab 11 at 1.2 We find that the administrative judge adequately
addressed these arguments in the initial decision. Specifically, the administrative
judge considered the appellant’s assertion that a prior judge changed his
separation date from 1993 to 1991, but she noted that the appellant admitted that
his date of separation was June 5, 1991. IAF, Tab 16, Initial Decision (ID) at 4.
The appellant does not dispute, and we discern no reason to disturb, the
administrative judge’s finding that the date of separation was the date of his
2 The appellant has included evidence that already is a part of the record before the
administrative judge. PFR File, Tab 1 at 3; IAF, Tab 1 at 7. After filing the petition for
review, the appellant also filed a pleading that stated, “I would like to take my case to
federal court.” PFR File, Tab 6. The Office of the Clerk of the Board ordered the
appellant to confirm whether he was requesting to withdraw his petition for review
under the Board’s June 28, 2022 withdrawal policy. PFR File, Tab 7. The appellant
then filed a pleading that stated, “I would like to continue my petition with [sic] review
before the Board.” PFR File, Tab 8. Accordingly, the Board is issuing this Final Order
on the appellant’s petition for review.2
removal from the U.S. Postal Service on June 5, 1991. ID at 4. Moreover, we
agree with the administrative judge’s finding that the appellant’s allegations of
being terrorized at the U.S. Postal Service and concerning the reason for his
separation are not relevant to this appeal of OPM’s reconsideration decision. ID
at 5.
To the extent the appellant wishes to pursue a wrongful termination claim
against his former employing agency, he may file a separate appeal with the
Board’s regional office in accordance with the Board’s regulations set forth at
5 C.F.R. § 1201.22. However, considering that approximately 28 years have
passed since his separation in 1991, and his assertions suggesting that he had
previously challenged the matter before a judge, we do not express an opinion on
the timeliness of or the Board’s jurisdiction over that separate appeal. ID at 4;
see 5 C.F.R. § 1201.56(b)(2)(i)(A)-(B) (providing that an appellant bears the
burden of proof regarding jurisdiction and the timeliness of an 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.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 | Darelius_Scott_E_PH-0842-18-0103-I-1 Final Order.pdf | 2024-02-07 | SCOTT E. DARELIUS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0842-18-0103-I-1, February 7, 2024 | PH-0842-18-0103-I-1 | NP |
2,404 | https://www.mspb.gov/decisions/nonprecedential/Biggs_Robert_A_AT-3443-18-0340-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT A. BIGGS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3443-18-0340-I-1
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert A. Biggs , Tampa, Florida, pro se.
Barbara S. Patch , St. Petersburg, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. The
appellant argues that the Board has jurisdiction over his appeal because he has
filed complaints with both the agency’s Office of Accountability and
Whistleblower Protection (OAWP) and the agency’s Office of General Counsel
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(OGC). Initial Appeal File (IAF), Tab 6 at 4; Petition for Review (PFR) File,
Tab 1 at 4-7. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the 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 initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
As noted by the administrative judge, to establish Board jurisdiction over
an IRA appeal, the appellant must show, among other things, that he has
exhausted his administrative remedies before the Office of Special Counsel
(OSC). IAF, Tab 5 at 2. As noted in the initial decision, there is nothing in the
record to suggest that the appellant filed a complaint with OSC. IAF, Tab 7,
Initial Decision at 3. The appellant’s contentions that he filed complaints with
OAWP are irrelevant for jurisdictional purposes. The Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017, Pub. L.
No. 115-41, 131 Stat. 682, which established OAWP, does not relieve the
appellant of his statutory obligation to exhaust his administrative remedies with
OSC prior to filing an appeal with the Board. 5 U.S.C. §§ 1214(a)(3), 1221(a).
On review, the appellant provides documents from the agency’s OGC
related to an administrative tort claim; he has entitled these documents “proof of
OGC contact first before MSPB.” PFR File, Tab 1 at 1, 4-7. He has not shown2
these documents were unavailable prior to close of the record. See Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). In any
event, the appellant confuses “OGC” with “OSC,” and thus, these documents are
immaterial for purposes of establishing Board jurisdiction over this appeal. We
find no reason to disturb the administrative judge’s determination that the
appellant has failed to prove exhaustion of his administrative remedies before
OSC, which is a statutory prerequisite for Board jurisdiction in IRA appeals.
5 U.S.C. §§ 1214(a)(3), 1221(a).
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.
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
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Biggs_Robert_A_AT-3443-18-0340-I-1 Final Order.pdf | 2024-02-07 | ROBERT A. BIGGS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-18-0340-I-1, February 7, 2024 | AT-3443-18-0340-I-1 | NP |
2,405 | https://www.mspb.gov/decisions/nonprecedential/Bickham_Yolanda_E_SF-315I-19-0018-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YOLANDA E. BICKHAM,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-315I-19-0018-I-1
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Yolanda E. Bickham , Elk Grove, California, pro se.
Adrienne Cady , Sacramento, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction without
holding her requested hearing. On petition for review, the appellant argues that
she was subjected to racial discrimination. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.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 The appellant argues that she was discriminated against because of her race and sex
and asks the Board to investigate her claim. Petition for Review File, Tab 1. Absent an
otherwise appealable action, the Board cannot consider a prohibited personnel practice
claim of discrimination in violation of Title VII. See Davis v. Department of Defense ,
105 M.S.P.R. 604, ¶ 16 (2007). Nor does the Board have the authority to investigate
such claims as the appellant requests.
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 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.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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Bickham_Yolanda_E_SF-315I-19-0018-I-1__Final_Order.pdf | 2024-02-07 | YOLANDA E. BICKHAM v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-315I-19-0018-I-1, February 7, 2024 | SF-315I-19-0018-I-1 | NP |
2,406 | https://www.mspb.gov/decisions/nonprecedential/Chopra_Mohit_P_PH-1221-16-0107-W-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MOHIT PAWAN CHOPRA, M.D.,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-16-0107-W-2
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sheilah F. McCarthy , Esquire, Wayland, Massachusetts, for the appellant.
M. Creston Rice , Esquire, Bedford, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which denied corrective action in his individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as MODIFIED to VACATE
the administrative judge’s alternative finding, we AFFIRM the initial decision.
BACKGROUND
The appellant, a psychiatrist, served in a series of consecutive
temporary appointments beginning in July 2008, with his last scheduled to expire
on July 5, 2014. Chopra v. Department of Veterans Affairs , MSPB Docket
No. PH-1221-16-0107-W-1, Initial Appeal File (IAF), Tab 4 at 57-59. Effective
January 3, 2013, the agency terminated his appointment after he made statements
expressing his desire to physically harm Dr. G, a psychiatrist with management
responsibility over the Community Living Center, one of the agency facilities
where the appellant worked. IAF, Tab 4 at 60-78, 113. The appellant thereafter
filed a complaint with the Office of Special Counsel (OSC) in which he
contended that the termination constituted reprisal for whistleblowing and, when
OSC notified him that it was closing its investigation, he filed this appeal. IAF,
Tab 1 at 11-22, 36-37.
On appeal, the appellant alleged that he disclosed that patients were being
mistreated in the Community Living Center to Dr. G, and later to Dr. B, the Chief
of Psychiatry (Chief). After a hearing, the administrative judge issued an initial
decision finding that the appellant exhausted his administrative remedies before
3
OSC and showed by preponderant evidence that he made a protected disclosure.
Chopra v. Department of Veterans Affairs , MSPB Docket No. PH-1221-16-0107-
W-2, Appeal File (W-2 AF), Tab 25, Initial Decision (ID) at 7-9. He also found,
however, that the appellant failed to prove that either the Chief or the deciding
official—the Medical Center Director—were aware of the appellant’s disclosures.
ID at 10-12. He concluded that the appellant failed to prove that his protected
activity was a contributing factor in his removal. ID at 12. He denied the
appellant’s request for corrective action. ID at 1, 15.
The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 2. The agency responds to the petition for review and the
appellant replies to the agency’s response. PFR File, Tabs 4-5.
ANALYSIS
To prevail in an IRA appeal, an appellant must prove by preponderant
evidence that his disclosure was a contributing factor in a personnel action.
Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 21 (2016). The term
“contributing factor” means any disclosure that affects an agency’s decision to
threaten, propose, take, or not take a personnel action regarding the individual
making the disclosure. Id. The most common way of proving contributing factor
is the “knowledge/timing test.” Id. Under that test, an appellant can prove that
his disclosure was a contributing factor in a personnel action through evidence
that the deciding official taking the action knew of the disclosure 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 an appellant has satisfied the knowledge/timing test, he has demonstrated
that a protected disclosure was a contributing factor in a personnel action. Id.
There is no dispute that the appellant has satisfied the timing prong of the
knowledge/timing test. As to the knowledge prong, the administrative judge
found, and the appellant does not contest, that t he Medical Center Director, the
4
deciding official in the appellant’s termination, had no actual knowledge of the
appellant’s protected activity. ID at 11-12. Even if the Director had no
knowledge of the appellant’s protected activity, however, the appellant could
establish constructive knowledge by demonstrating that someone with actual
knowledge influenced the deciding official. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 11 (2012). Here, the appellant’s first theory of constructive
knowledge centers on the Chief, who recommended to the Director that the
appellant be terminated. IAF, Tab 21, Hearing Transcript (HT) at 201 (testimony
of the Chief).2 The Chief testified that he was unaware of the appellant’s
protected activity until after the appellant was terminated. HT at 224 (testimony
of the Chief). In contrast, the appellant testified that he made his disclosures to
the Chief in an in-person one-on-one meeting several months prior to the
termination. HT at 37-46 (testimony of the appellant). The administrative judge
found the Chief more credible than the appellant and concluded that the Chief had
no knowledge of the appellant’s protected activity. ID at 9.
The appellant’s second theory of constructive knowledge is based on the
allegation that Dr. G, who clearly was aware of the appellant’s whistleblowing,
influenced the Director’s decision via the recommendation of the Chief of
Employee and Labor Relations (ELR Chief). PFR File, Tab 2 at 30. Dr. G
testified that he had no discussions with the Director about the appellant’s case,
HT at 181 (testimony of Dr. G), and neither party asked during the Director’s
testimony whether the Director had any discussions with Dr. G about the
appellant. The ELR Chief testified that, during the general timeframe that he was
drafting a disciplinary recommendation relating to the appellant, he had a meeting
with Dr. G. HT at 298 (testimony of the ELR Chief). Dr. G did not recall this
meeting but admitted that it might have happened when he was shown
documentation that the meeting occurred. HT at 177, 181 (testimony of Dr. G).
2 The hearing compact disc is located in the case file at IAF, Tab 21. The hearing
transcript is located in its own separate folder without a particular “Tab” designation.
5
The ELR Chief testified that the purpose of the meeting was to discuss the
impact, if any, of the appellant’s alleged misconduct on Dr. G.3 HT at 298
(testimony of the ELR Chief). He further testified that he did not ask Dr. G what
consequences should derive from the appellant’s alleged misconduct and did not
know Dr. G’s opinion of the matter. Id.
The appellant contends on review that an email from the ELR Chief to the
Director and others shows that Dr. G had input into the ELR Chief’s
recommendation, which, in turn, influenced the Director’s decision. PFR File,
Tab 2 at 30. However, the email in question is entirely consistent with the ELR
Chief’s testimony in that it shows that Dr. G was asked about the impact on him
of the appellant’s alleged misconduct but does not show that Dr. G’s opinion
about any disciplinary action was solicited or volunteered. IAF, Tab 8 at 95-96.
The administrative judge found that the ELR Chief’s testimony was credible, and
he concluded that the appellant failed to show that the ELR Chief had any undue
influence on the Director’s decision. ID at 11-12.
The appellant contends that the administrative judge’s credibility findings
fail to meet the standard set forth in Hillen.4 PFR File, Tab 2 at 14-23. Although
the administrative judge’s credibility findings are somewhat lacking in detail, the
administrative judge’s credibility findings were firmly rooted in the witnesses’
demeanor. The Board defers to an administrative judge’s credibility
3 The appellant allegedly made threatening statements directed towards Dr. G, and
Dr. G’s reaction to those alleged statements would be relevant both to the particular
charge against the appellant and the penalty imposed.
4 To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version he believes, and explain in detail why he found the chosen version more
credible, considering factors such as the following: (1) the witness’s opportunity and
capacity to observe the event or act in question; (2) the witness’s character; (3) any
prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army , 35 M.S.P.R. 453,
458 (1987).
6
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has identified several minor
inconsistencies between the Chief’s hearing testimony and his prior statements
concerning a report from the Employee Assistance Program (EAP), such as
whether the report was in writing or oral, and what date he received the report.
PFR File, Tab 2 at 17-18. He also argues that a retaliatory motive can be imputed
to the Chief because the Special Counsel found the matters revealed in the
appellant’s disclosure to be egregious and the Chief was ultimately responsible
for the shortcomings the appellant identified. PFR File, Tab 2 at 18-19. The
appellant’s argument about the Chief’s motive is speculative, and minor
differences between his testimony and his prior statements about the EAP report
do not call his credibility as a whole into question. See Craft v. Department of
Veterans Affairs , 78 M.S.P.R. 374, 380 (1998) (holding that, even if a witness is
not credible on one point, it does not necessarily mean that the remainder of his
testimony lacks credibility). The Board may overturn demeanor-based credibility
determinations only when it has “sufficiently sound” reasons for doing so.
Haebe, 288 F.3d at 1301. The Board will not overturn an administrative judge’s
demeanor-based credibility findings merely because it disagrees with those
findings. Leatherbury v. Department of the Army , 524 F.3d 1293, 1304 (Fed. Cir.
2008). The minor inconsistencies identified by the appellant do not rise to the
level of “sufficiently sound” reasons for overturning the administrative judge’s
credibility findings.
The appellant also contends on review that the administrative judge erred
by denying his motion to compel discovery of electronically stored information
that might have provided proof that the meeting took place. PFR File, Tab 2
at 23-26. The administrative judge denied the motion on the basis of the agency’s
representation that the documents did not exist and the appellant’s failure to
present any evidence to the contrary. W-2 AF, Tab 8. The appellant on review
7
has not provided any reason to believe that the documents exist. We find,
therefore, that the appellant has failed to show that the administrative judge
abused his discretion.
The appellant contends that the administrative judge erred by excluding the
EAP Counselor as a witness to impeach the Chief’s testimony. PFR File, Tab 2
at 27. We agree with the administrative judge that the witness was irrelevant.
The appellant could have impeached the Chief’s expected testimony at the
hearing but instead chose not to broach the topic of the disputed meeting at all.
Again, the appellant has not shown that the administrative judge abused his
discretion.
The appellant also alleges that the administrative judge erred by excluding
post-termination evidence of the Chief’s purported retaliatory motive in the form
of his reaction, if any, to a news article published some 18 months after the
appellant’s termination. Id. at 27-29. We agree with the administrative judge
that this evidence is irrelevant. The article does not appear to be in the record, so
we do not know whether it identifies the appellant. If not, the best the appellant
could hope for is an admission that the Chief harbored a motive against
an anonymous whistleblower, and this would not help his case. Moreover, it
would not rebut the evidence showing that he did not know at the time of the
appellant’s removal that the appellant had made protected disclosures. We find
that the administrative judge correctly found that the appellant failed to show that
the relevant managers had either actual or constructive knowledge of his
protected disclosures and that he failed to meet the knowledge/timing test.
The knowledge/timing test is not the only way an appellant can establish
that his protected disclosures were a contributing factor in the agency’s decision
to take a personnel action against him. If an administrative judge determines that
an appellant has failed to satisfy the knowledge/timing test, he must 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
8
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 whistleblowing disclosure, either
alone or in combination with other factors, can satisfy the contributing factor
standard. Id.
Here, based on the reasoning set forth in the initial decision, with which we
agree, we find that the agency’s evidence in support of its action was strong.
ID at 13-14. The record shows that, during two meetings on December 10, 2012,
the appellant stated that he had fantasies about hurting Dr. G and that he wanted
to “crack his skull open.” IAF, Tab 4 at 13-14. The appellant made these
statements twice, they were witnessed by four separate people, and he admitted at
the hearing that he made them. Id. at 68-71, 73; HT at 57, 109-10 (testimony of
the appellant), 192 (testimony of the Chief), 236, 253 (testimony of Dr. K). The
agency contacted agency police and the agency’s Suicide Prevention Office, and
referred the appellant to the Employee Assistance Program. IAF, Tab 4 at 68, 70,
74, 109. It also placed the appellant on administrative leave, required him to
check in with agency police before entering agency premises, and terminated his
employment less than a month after he made his statements. Id. at 70, 73-74,
111.
The appellant also has not shown any motive on the part of the deciding
official.5 As noted above, the administrative judge found, based on his
assessment of the witnesses’ credibility, that the appellant failed to show that
anyone with knowledge of the appellant’s protected disclosure influenced the
deciding official. ID at 11-12. The Board has held that an administrative judge’s
credibility findings are virtually unreviewable on review. Baker v. Social
Security Administration , 2022 MSPB 27, ¶ 30; Thomas v. U.S. Postal Service ,
116 M.S.P.R. 453, ¶ 5 (2011). In addition, the deciding official testified that,
after the appellant’s termination, he heard that the appellant had contacted OSC,
5 There was no proposing official.
9
but he knew little about it. HT at 313 (testimony of the deciding official). He
understood that the OSC contact related to staffing levels in the nursing home
psychiatry department but that “every Service [in] this hospital thinks that it’s
understaffed, every single one of them.” Id. The appellant did not elicit any
testimony from the deciding official concerning his disclosure, as opposed to his
contact with OSC, and there is no evidence of record concerning the deciding
official’s attitude toward it. The disclosure was not personally directed at the
deciding official, and his testimony concerning complaints about understaffing
did not reflect a retaliatory attitude generally.
In sum, we find that the appellant has not shown by preponderant evidence
that other evidence supports a finding in this case that his disclosures were a
contributing factor in his suspension. Based on the foregoing, we affirm the
initial decision as modified herein.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
6 The administrative judge found, in the alternative, that the agency proved by clear and
convincing evidence that it would have terminated the appellant absent any protected
activity. ID at 12-15. Following passage of the Whistleblower Protection Enhancement
Act of 2012, Pub. L. No. 112-199, § 114(b), 126 Stat. 1465, 1472, the Board may not
proceed to the clear and convincing evidence test unless it has first made a finding that
the appellant established his prima facie case. Thus, we vacate that portion of the
initial decision. See Scoggins, 123 M.S.P.R. 592, ¶ 28.
Finally, we have reviewed the relevant legislation enacted during the pendency of this
appeal and have concluded that it does not affect the outcome of the appeal.
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.
10
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
11
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
12
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
13
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510.
14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Chopra_Mohit_P_PH-1221-16-0107-W-2 Final Order.pdf | 2024-02-07 | null | PH-1221-16-0107-W-2 | NP |
2,407 | https://www.mspb.gov/decisions/nonprecedential/Smith_Darrell_W_SF-0432-18-0044-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARRELL SMITH,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-0432-18-0044-I-1
DATE: February 7, 2024
THIS ORDER IS NONPRECEDENTIAL1
Nicole M. Ferree , Esquire, Las Vegas, Nevada, for the appellant.
Kathleen Harne and Ted Booth , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action demoting him for unacceptable performance under
5 U.S.C. chapter 43. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the appeal to the
regional office for further adjudication consistent with Santos v. National
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021), and the
guidance below.
BACKGROUND
The agency placed the appellant, a Correctional Counselor at its Federal
Correctional Institution in Dublin, California, on a performance improvement
plan (PIP) based on his unacceptable performance in two of the critical elements
in his performance plan: (1) Plans, Monitors, and Evaluates; and
(2) Communicates. Initial Appeal File (IAF), Tab 15 at 284-90. The PIP set
forth examples of his unacceptable performance under each element and
enumerated what he needed to do to bring his performance up to at least the
minimally successful level. Id. At the end of the 90-day PIP, the appellant’s
supervisor determined that his performance remained at the unacceptable level on
the same two critical elements. IAF, Tab 15 at 281-82. Consequently, she issued
a notice of proposed removal, dated August 23, 2017, based on unacceptable
performance. Id. at 271-74.
The agency twice extended the deadline for the appellant to respond. Id.
at 119-20. He presented a written response on September 22, 2017, and an oral
response 6 days later. IAF, Tab 15 at 104-05, Tab 16 at 5-315. After considering
the appellant’s responses, the deciding official issued an October 20, 2017
decision letter finding the appellant’s performance unacceptable on the two
critical elements at issue. IAF, Tab 15 at 76-79. However, he mitigated the
proposed removal, instead demoting the appellant to a GS-07 Correctional Officer
position, effective October 29, 2017. Id. at 77.
The appellant filed a timely appeal of his demotion, arguing that the agency
retaliated against him for whistleblowing and for his prior equal employment
opportunity (EEO) activity, discriminated against him on the basis of his
disability, and committed harmful error in issuing the PIP. IAF, Tab 1 at 6.
After holding a hearing, the administrative judge affirmed the agency’s action.
3
IAF, Tab 30, Initial Decision (ID) at 1, 42. She also found that the appellant
failed to establish any of his affirmative defenses. ID at 35-41.
The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency filed a response in opposition to the
appellant’s petition for review. PFR File, Tab 3.
ANALYSIS
At the time the initial decision was issued, the Board’s case law stated that,
to prevail in a performance-based action under chapter 43, the agency must
establish the following by substantial evidence:2 (1) the Office of Personnel
Management approved its performance appraisal system and any significant
changes thereto; (2) the agency communicated to the appellant the performance
standards and critical elements of his position; (3) the appellant’s performance
standards were valid under 5 U.S.C. § 4302(c)(1); (4) the agency warned the
appellant of the inadequacies of his performance during the appraisal period and
gave him a reasonable opportunity to demonstrate acceptable performance; and
(5) the appellant’s performance remained unacceptable in one or more of the
critical elements for which he was provided an opportunity to demonstrate
acceptable performance. Lee v. Environmental Protection Agency , 115 M.S.P.R.
533, ¶ 5 (2010). The administrative judge determined that the agency established
all five of the elements set forth above, demonstrating the appellant’s
unacceptable performance in two of the critical elements of his position. ID
at 9-27. The appellant does not challenge the administrative judge’s findings on
the first three elements of the agency’s burden,3 nor does he challenge her finding
2 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).
3 The appellant argued below that his performance standards were not valid because
they did not articulate what he must do to achieve minimally successful performance.
IAF, Tab 28 at 4. To the extent that the appellant’s performance standards did not
explicitly contain a minimally successful standard, an agency may cure the defect by
fleshing out the standards through additional oral or written communication. Towne v.
4
that the agency warned him of his inadequacies during the appraisal period.
Based on the record before us, we see no reason to revisit the administrative
judge’s findings on these issues.
The agency gave the appellant a reasonable opportunity to improve.
In his petition for review, the appellant reiterates his argument that, due to
his taking a significant amount of sick leave, he was only present for 36 out of the
63 workdays in his 90-day PIP, and that the administrative judge therefore erred
by finding that the agency afforded him a reasonable opportunity to improve.
PFR File, Tab 1 at 7. The employee’s right to a reasonable opportunity to
improve is a substantive right and a necessary prerequisite to all chapter 43
actions. Lee, 115 M.S.P.R. 533, ¶ 32. In determining whether an agency has
afforded 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 which is sufficient to provide the employee with an opportunity to
demonstrate acceptable performance. Id.
Here, the record shows that the appellant worked 36 days of his 90-day
PIP, an amount of time that can satisfy the agency’s obligation under chapter 43
to provide a reasonable opportunity to demonstrate acceptable performance. See,
e.g., Melnick v. Department of Housing and Urban Development , 42 M.S.P.R. 93,
97, 101 (1989) (finding that a 30-day PIP satisfied the agency’s obligation to
provide a secretarial employee with a reasonable opportunity to demonstrate
acceptable performance on ad hoc and timekeeping tasks), aff’d, 899 F.2d 1228
Department of the Air Force , 120 M.S.P.R. 239, ¶ 23 (2013). The administrative judge
here found that the agency did so in the PIP document. ID at 11-12; see IAF, Tab 15
at 287-88. She determined that the appellant’s performance standards were
“sufficiently clear to ensure that the appellant could understand them,” and were
reasonable, realistic, and attainable. ID at 12. She further found insufficient evidence
to support the appellant’s claim that the agency held him to a higher level of
performance than it did from his peers who were not on a PIP. Id. The appellant does
not challenge any of these findings on review.
5
(Fed. Cir. 1990) (Table). Moreover, the appellant’s supervisor was able to
perform many of the tasks that the appellant failed to perform in relatively short
amounts of time. For example, the administrative judge credited the supervisor’s
testimony that it took her about 3 hours to complete all of the audit checks she
had assigned to the appellant and that he failed to complete. ID at 18 & n.4.
Similarly, the administrative judge found that the appellant was well aware, on
the morning of the deadline set forth in the PIP, that he needed to complete a
training course, and he could have done so by the end of the day, but it
nevertheless took him 10 more days to complete this straightforward assignment
and he offered no reason for the delay. ID at 26. Thus, we agree with the
administrative judge’s finding that it was not unreasonable to expect the appellant
to have completed these tasks during the 36 days the appellant worked under the
PIP. The administrative judge correctly found that the agency afforded the
appellant a reasonable opportunity to demonstrate acceptable performance.
The agency established by substantial evidence that the appellant’s performance
was unacceptable in two critical elements.
The critical element of Plans, Monitors, Evaluates.
Following her analysis of the documentary record and the testimony before
her concerning the specific tasks set forth in the appellant’s PIP, the
administrative judge determined that the appellant had failed to meet the
minimally successful performance level concerning his performance of two of the
three tasks assigned in the PIP under the critical element, Plans, Monitors, and
Evaluates, i.e., completing the central file audit checklists and running the daily
inmate discipline sentry logs. ID at 15-23; IAF, Tab 15 at 287-88. To complete
the audit checklists, the appellant was required to complete checklists for the
160 cases in his caseload. IAF, Tab 15 at 285, 287. The task, originally assigned
on December 19, 2016, had an initial due date of April 3, 2017, which was
extended to May 11, 2017, during the PIP. Id. at 285, 287. The administrative
judge found that the bi-annual task was properly assigned to the appellant prior to
6
his placement on the PIP and further found it undisputed that he did not complete
a single checklist during the PIP period. ID at 17. She also found that the
appellant had adequate time during the PIP to complete the task, considering the
appellant’s testimony that it took him about 10 minutes per file to complete a
checklist, and his supervisor’s testimony that it took her 3 hours to complete all
the checklists she had assigned to the appellant. ID at 18 & n.4, IAF, Tab 27,
Hearing Compact Disc (HCD) (testimony of the appellant and the appellant’s
supervisor). The administrative judge concluded from the appellant’s testimony
that the checklists were not a priority for him and she found his claim that his
supervisor had impeded his efforts to complete the task was not credible, citing
the appellant’s failure to raise the issue in contemporaneous emails, despite
repeatedly doing so in other instances in which he accused his supervisor of
inappropriately blaming him for performance deficiencies. ID at 19-20.
The appellant was also required to complete Inmate Discipline Daily Logs
each day to track Unit Disciplinary Committee hearings on his caseload. IAF,
Tab 15 at 271, 287. The administrative judge noted that this assignment was not
a daily responsibility for the appellant before the PIP, citing his supervisor’s
testimony that she had required him to perform this task on a daily basis under the
PIP to ensure that he had knowledge of the disciplinary incidents in the unit for
which he was responsible, in an effort to facilitate his ability to timely meet his
obligations. ID at 21; HCD (testimony of the supervisor). The appellant did not
complete this task on six occasions, May 7-9, 15, 22, and July 17, 2017. IAF,
Tab 15 at 271. The administrative judge concluded that the appellant’s testimony
concerning his excuse for why he failed to perform this task between May 8
and 24, 2017, was not credible. ID at 21; HCD (testimony of the appellant). On
that point, the administrative judge credited the supervisor’s testimony that the
appellant first asked for help on this task on May 24 over the appellant’s
testimony that he asked for help on May 8, but did not receive it until May 24,
2017, finding the appellant’s testimony that his supervisor did not know the
7
answer on May 8 was inconsistent with the record concerning the supervisor’s
familiarity with and knowledge of the system used for producing the reports. ID
at 21-23; HCD (testimony of the appellant and the supervisor). On that basis, she
found that the agency established that the appellant failed to meet the minimally
successful level on this task during the PIP. ID at 23. The administrative judge
found that the appellant was not responsible for a third failure noted on the
performance log and cited in his proposed removal, an outstanding incident
report. ID at 23; IAF, Tab 15 at 271, 281. Nevertheless, as set forth above, based
on her findings concerning the two other tasks assigned in the PIP and associated
with this critical element that she determined the appellant failed to perform, the
administrative judge found that the agency demonstrated by substantial evidence
that the appellant’s performance on the critical element of Plans, Monitors, and
Evaluates remained below minimally successful during the PIP period. Id. We
agree.
The critical element of Communicates .
Concerning this critical element, the PIP required the appellant, with few
exceptions, to be in the unit for 9 hours out of his 10-hour shift performing duties
such as processing inmate requests and inspecting cells, and to register for and
successfully complete several courses on the agency’s Skillsoft training system.
IAF, Tab 15 at 287-88. The supervisor’s performance log indicates that, although
the appellant had exhibited improvement in this area, he had still failed to
complete the first of the assigned Skillsoft courses by the due date. Id. at 282.
She also observed that, despite the additional open house hours, and based on
numerous complaints, the appellant still needed to improve his accessibility to
inmates. Id. The administrative judge did not credit the appellant’s claim that he
was confused about which course to take, finding that he was aware that he had
missed the deadline to take the course and that he had been told how to access the
correct one listed in the PIP. ID at 26. Because he completed this course,
Avoiding Time Stealers, 10 days after the May 30, 2017 deadline set forth in the
8
PIP, the administrative judge found that the appellant failed to meet one of the
requirements necessary for him to reach the minimally successful level in the
Communicates critical element. ID at 26.
The appellant’s failure on some of the tasks on the PIP was failure on the
two critical elements at issue as a whole.
The appellant argues on review that, because the agency only established
three out of the five allegations of unacceptable performance that it alleged in the
proposed adverse action, its evidence does not establish his unacceptable
performance by substantial evidence on either of the critical elements it alleged
therein. PFR File, Tab 1 at 6. He also contends that the agency failed to
demonstrate how the tasks set forth in the PIP were of such importance that his
failure to compete those tasks warrants a finding that he failed a particular critical
element or that his overall performance was unacceptable. Id.
When, as here, an appellant’s performance was unacceptable on one or
more, but not all, components of a critical element, the agency must show by
substantial evidence that the appellant’s performance warranted an unacceptable
rating on the element as a whole. Lee, 115 M.S.P.R. 533, ¶ 36. Such evidence
may include evidence that the appellant knew or should have known the
significance of the sub-elements at issue and evidence showing the importance of
the sub-elements in relation to the duties and responsibilities with which the
critical element as a whole is concerned. Id.
Contrary to the appellant’s contentions on review, PFR File, Tab 1 at 6, the
sum and substance of the administrative judge’s analysis shows that he knew or
should have known the significance of each of the tasks set forth in his PIP, and
we agree with her ultimate conclusion that his deficiencies were significant
enough to justify his demotion, ID at 42. The tasks set forth in the PIP directly
relate to the associated critical elements. For example, the Inmate Discipline
Daily Logs and Central File Audit Checklists required by the appellant’s PIP are
tools that address the need “to ensure safe, secure, and efficient operations,” as
9
stated under the critical element of Plans, Monitors, and Evaluates. IAF, Tab 15
at 287, 299. Under the critical element of Communicates, the required tasks
involved the appellant’s presence in the unit seeing to the needs of the inmates
and taking several courses involving communication and time management. Id.
at 287-88, 302-03. Moreover, the appellant’s PIP made clear that unacceptable
performance on any task associated with those critical elements would indicate
unacceptable performance on the element as a whole and could subject him to
removal. Id. at 289. Although the appellant is correct that the administrative
judge found that the agency failed to prove two of the performance deficiencies it
alleged, we agree with the administrative judge’s analysis that the agency
established the appellant’s unacceptable performance in at least one of his critical
elements by substantial evidence, which is sufficient to meet its burden of proof.
ID at 42; see Lee, 115 M.S.P.R. 533, ¶¶ 5, 37.
Remand is required in light of Santos .
During the pendency of the petition for review in this case, the U.S. Court
of Appeals for the Federal Circuit held in Santos, 990 F.3d at 1360-61, 1363, that,
in addition to the five elements of the agency’s case set forth above, the agency
must also “justify the institution of the PIP” by proving by “substantial evidence
that the employee’s performance was unacceptable . . . before 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.
10
On remand, the administrative judge should make new findings as to the
appellant’s disparate treatment disability discrimination and EEO retaliation
claims.
The administrative judge found that the appellant failed to prove disability
discrimination based on a failure to reasonably accommodate his disability
because he did not articulate an accommodation that would have permitted him to
perform his duties at the fully successful level. ID at 32-33. The appellant does
not challenge this finding on review, and we see no reason to disturb it.
As to the appellant’s remaining claims, the Board recently clarified that
claims of disability discrimination and EEO retaliation based on activity
protected under Title VII and the Age Discrimination in Employment Act are
subject to a motivating factor standard. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 21, 30. To establish a violation of the anti -retaliation
provision of the Rehabilitation Act, however, an appellant must establish that the
protected activity was a “but-for” cause of the employer’s action. Id., ¶¶ 44-47;
Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 32. On remand, the
administrative judge shall reconsider the appellant’s disparate treatment disability
discrimination and EEO retaliation claims under the recently clarified legal
standards along with any additional evidence adduced.
The appellant failed to show that the agency committed harmful error.
The appellant argued below that the agency failed to give him enough time
to respond to the notice of proposed removal. IAF, Tab 28 at 5. The
administrative judge found that the agency did not commit harmful error because
the record showed that the agency gave the appellant adequate time to respond,
i.e., 15 days following his receipt of the proposal, and that the deciding official
subsequently granted the appellant a 7 -day extension of that deadline. ID at 35;
IAF, Tab 15 at 118. She found that the appellant responded within the extended
timeframe, and the deciding official considered his response, as well as
documents the appellant submitted after the extended timeframe. ID at 35-37;
11
IAF, Tab 15 at 76, Tab 16, Tab 26. The administrative judge also rejected the
appellant’s argument that the agency was required to allow him official time to
craft a response to the notice of proposed removal because he was not working
during the response period, but instead was receiving pay from the Department of
Labor for a workplace injury. ID at 36. While the appellant alleged that he
lacked access to his email and documents during the response period, the
administrative judge determined that he could have accessed those documents
through the agency’s human resources office. ID at 36-37. The appellant has not
challenged these findings, and we discern no basis to disturb them.
The administrative judge must reconsider on remand whether the agency
established by clear and convincing evidence that it would have demoted the
appellant in the absence of his protected disclosure .
In an adverse action appeal in which the appellant has raised a claim of
whistleblower reprisal, once the agency proves its adverse action case, the
appellant must show by preponderant evidence that he made a disclosure
protected under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing
factor in the agency’s personnel action.4 Shibuya v. Department of Agriculture ,
119 M.S.P.R. 537, ¶ 19 (2013). If the appellant establishes a prima facie case of
reprisal for whistleblowing, the burden of persuasion shifts to the agency to show
by clear and convincing evidence that it would have taken the same personnel
action absent any protected activity. Id., ¶ 32.
The administrative judge found that the appellant established a prima facie
case of reprisal for whistleblowing and we see no reason to disturb that finding.
She further found that the agency proved by clear and convincing evidence that it
would have taken the same action in the absence of the appellant’s
whistleblowing. However, it is possible that additional evidence taken on remand
4 Approximately 2 months before the initial decision was issued in this appeal, the
National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115 -91,
131 Stat. 1283, was signed into law on December 12, 2017. Section 1097 of the NDAA
amended various provisions of Title 5 of the U.S. Code. However, those amendments
do not implicate the issues here.
12
could impact this finding. Therefore, the administrative judge shall reconsider on
remand whether the agency proved by clear and convincing evidence that it would
have taken the same action in the absence of whistleblowing.
Weingarten-type rights do not apply to meetings concerning performance .
The appellant contends for the first time in his petition for review that he
has new and material evidence that the agency violated his right to union
representation during PIP meetings and the meeting at which he received the
agency’s demotion decision. PFR File, Tab 1 at 11-15; ID at 38-39. The
appellant presents documents pertaining to unfair labor practices charges that
predate the initial decision and his own prehearing submissions. PFR File, Tab 1
at 7-8, 11-15; ID; IAF, Tab 19. He also submits a letter from the Federal Labor
Relations Authority that is not material to the outcome of this case. PFR File,
Tab 1 at 7-8, 10. Because the appellant has not shown that either these
documents or their contents were unavailable to him before the record closed
despite his due diligence, and because he has not shown that they are material to
the outcome of his case, we do not consider them. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 213-14 (1980); 5 C.F.R. § 1201.115.
We have considered the appellant’s remaining arguments on review but
find they provide no basis for reversing the initial decision.
13
ORDER
For the reasons discussed above, we remand this appeal to the Western
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the judge shall accept argument and evidence and make findings as to
whether the agency showed that the appellant’s performance was unacceptable
prior to the PIP. The administrative judge shall also reconsider the appellant’s
affirmative defenses of disparate treatment disability discrimination, EEO
retaliation, and whistleblower reprisal and make new findings on those issues.
The administrative judge may incorporate her prior findings, as appropriate.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Smith_Darrell_W_SF-0432-18-0044-I-1 Remand Order.pdf | 2024-02-07 | DARRELL SMITH v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-0432-18-0044-I-1, February 7, 2024 | SF-0432-18-0044-I-1 | NP |
2,408 | https://www.mspb.gov/decisions/nonprecedential/Rasberry_Lekiewa_DC-0752-18-0681-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEKIEWA RASBERRY,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-18-0681-I-1
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lekiewa Rasberry , Chicago, Illinois, pro se.
Susan Andorfer , Washington, D.C., for the agency.
Hollis E. Marken , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency action removing her for medical inability to perform the
duties of her position. On petition for review, the appellant argues that the
agency’s search for vacant, funded positions for which she qualified was
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
inadequate and contends that it should have offered her a hardship transfer. She
also challenges the administrative judge’s adjudication of her affirmative
defenses of discrimination and reprisal for engaging in protected equal
employment opportunity (EEO) activity. 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 consider the appellant’s EEO retaliation claim in light of our
recently issued decision in Pridgen v. Office of Management and Budget ,
2022 MSPB 31, and to analyze the appellant’s claim that the agency erred in
failing to offer her a hardship transfer, we AFFIRM the initial decision.
Some of the protected activity underlying the appellant’s EEO retaliation
claim involved a formal discrimination complaint in which she raised, among
other claims, disability discrimination. Initial Appeal File (IAF), Tab 34 at 9.
While the administrative judge considered the appellant’s retaliation claim under
a “motivating factor” standard, the Board has recently held that, in addressing
retaliation claims under the Rehabilitation Act, the Board will instead apply a
more stringent “but-for” standard of causation. Pridgen, 2022 MSPB 31,
¶¶ 46-47. Nevertheless, we find that analyzing the appellant’s claim of retaliation
for filing a disability discrimination complaint under Pridgen does not require a2
different result. Having failed to meet the less stringent “motivating factor”
analysis, the appellant cannot meet the more stringent “but-for” analysis. Thus,
we affirm the administrative judge’s finding, as modified, to find that the
appellant did not prove that her protected Americans with Disabilities Act
Amendments Act of 2008 activity was the “but-for” cause of her demotion. Id.
The appellant argues on review that the agency should have given her a
hardship transfer under a new provision of the Master Labor Agreement (MLA).2
Petition for Review (PFR) File, Tab 1 at 5-7. She testified that a 2017 update to
the MLA allowed for a hardship transfer for which she believed that she
qualified. October 19, 2018 Hearing Transcript (HT) at 147 (testimony of the
appellant). She further testified that because it was new, she was unsure of the
requirements for obtaining a hardship transfer and that she instead chose to ask
for a reasonable accommodation. HT at 154-55. Under questioning by the
appellant, her supervisor testified that she was unaware of hardship transfers
under the MLA and that no one suggested that approach to her. HT at 102-04
(testimony of the appellant’s supervisor). The appellant’s second-level
supervisor, ID at 2, testified that she had heard that there was such a thing as a
hardship transfer, but she did not know what it was or the process required for it,
HT at 132 (testimony of the appellant’s second-level supervisor). The Board will
enforce binding provisions of a collective bargaining agreement in the same
manner as it enforces agency regulations and will determine whether harmful
error occurred. Hall v. Department of the Navy , 73 M.S.P.R. 251, 255 (1997).
The administrative judge gave the appellant notice of her burden and an
opportunity to establish that the agency committed an error in the application of
its procedures that is likely to have caused it to reach a conclusion different than
2 Neither party filed a copy of the MLA to which the appellant refers, but the agency
asserted that she is covered by the collective bargaining agreement between the Centers
for Medicare and Medicaid Services and the American Federation of Government
Employees, Local 1923, AFL-CIO, and we presume this is the agreement at issue. IAF,
Tab 12 at 14. 3
the one it would have reached in the absence of the error. IAF, Tab 15 at 14; see
5 C.F.R. § 1201.4(r) (defining harmful error). However, she did not address the
appellant’s argument regarding the MLA in the initial decision. Although the
appellant questioned two witnesses about the availability of a hardship transfer,
she did not submit a copy of the MLA, or establish any relevant details
concerning the standards for granting a hardship transfer under the MLA. She
reraises the issue on review but still fails to provide a copy of the MLA or
provide any details concerning a hardship transfer under the MLA. PFR File,
Tab 1 at 5-6. Thus, even if the administrative judge erred in not addressing the
issue, because the appellant failed to establish the parameters of a hardship
transfer under the MLA, she could not establish that the agency erred in not
offering one to her or that it would have come to a different conclusion had it
done so. The administrative judge's procedural error is of no legal consequence
unless it is shown to have adversely affected a party’s substantive rights .
Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981).
Accordingly, we affirm the initial decision and deny the petition for
review.
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 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.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Rasberry_Lekiewa_DC-0752-18-0681-I-1__Final_Order.pdf | 2024-02-07 | LEKIEWA RASBERRY v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0752-18-0681-I-1, February 7, 2024 | DC-0752-18-0681-I-1 | NP |
2,409 | https://www.mspb.gov/decisions/nonprecedential/McLaughlin_Cheryl_L_SF-0752-19-0301-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHERYL L. MCLAUGHLIN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-19-0301-I-1
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cheryl L. McLaughlin , Bremerton, Washington, pro se.
Alan Mygatt-Tauber , Esquire, Mary M. McKnight , Esquire, and Eric
Pedersen , Silverdale, Washington, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as untimely filed by more than 18 months. On petition for
review, the appellant argues the merits of her underlying 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for
granting the petition for review. Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board 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 practice 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 | McLaughlin_Cheryl_L_SF-0752-19-0301-I-1 Final Order.pdf | 2024-02-07 | CHERYL L. MCLAUGHLIN v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-19-0301-I-1, February 7, 2024 | SF-0752-19-0301-I-1 | NP |
2,410 | https://www.mspb.gov/decisions/nonprecedential/Linzy_Constance_M_DC-0432-17-0798-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONSTANCE M. LINZY,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DC-0432-17-0798-I-1
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles T. Tucker, Jr. , Esquire, Hyattsville, Maryland, for the appellant.
Elan Adounvo and Nicole Y. Drew , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s 5 U.S.C. chapter 43 performance-based removal action.
On petition for review, the appellant argues that the administrative judge
erroneously relied on hearsay evidence, unfairly disallowed certain witness
testimony, discredited some of her factual arguments, and exhibited bias.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED
regarding the appellant’s affirmative defense of retaliation for protected equal
employment opportunity (EEO) activity, we AFFIRM the initial decision.
The Board has consistently followed the well-settled principle that hearsay
evidence is admissible in administrative proceedings. Jackson v. Department of
the Army, 10 M.S.P.R. 90, 93 (1982) (citing Borninkhof v. Department of Justice ,
5 M.S.P.R. 77 (1981)). In appeals before the Board, the trier of fact is
responsible for weighing the probative value of hearsay evidence under the
circumstances of each case. Borninkhof, 5 M.S.P.R. at 84. The trier of fact also
has broad discretion to regulate the course of the hearing and to exclude evidence
and witnesses that have not been shown to be relevant, material, and
nonrepetitious. Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011);
5 C.F.R. § 1201.41(b)(8), (10).
We find that the administrative judge did not abuse his discretion in
disallowing some of the appellant’s proffered witnesses on account of relevance.
Initial Appeal File (IAF), Tab 31 at 3-4; see 5 C.F.R. § 1201.41(b)(8), (10).
We also find that the administrative judge properly weighed the witness
3
testimony and considered the totality of the evidence in the record, including the
appellant’s factual arguments. IAF, Tab 34, Initial Decision (ID) at 6-14.
We therefore find no reason to disrupt his findings. See Kramer v. Veterans
Administration, 23 M.S.P.R. 271, 274 (1984) (finding that mere conclusory
allegations of factual error are not sufficient to trigger a complete review of the
record), aff’d, 776 F.2d 1061 (Fed. Cir. 1985) (Table).
We also find the appellant’s allegations of bias to be without merit. The
Board has consistently held that, in making a claim of bias against an
administrative judge, the appellant must overcome the presumption of honesty
and integrity that accompanies all administrative adjudicators. Washington v.
Department of the Interior , 81 M.S.P.R. 101, 103-04 (1999) (citing In re King,
1 M.S.P.R. 146, 151 (1979)). This presumption can be overcome only by a
substantial showing of personal bias. Williams v. U.S. Postal Service ,
87 M.S.P.R. 313, ¶ 12 (2000). An administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudication only if the
administrative judge’s comments or actions indicate a deep-seated favoritism or
antagonism that would render fair judgment impossible. Simpkins v. Office of
Personnel Management , 113 M.S.P.R. 411, ¶ 5 (2010). The record is devoid of
any such evidence of bias.
While the petition for review in this case was pending, the U.S. Court of
Appeals for the Federal Circuit issued Santos v. National Aeronautics and Space
Administration, 990 F.3d 1355, 1363 (Fed. Cir. 2021), in which it held that part
of an agency’s burden in a chapter 43 appeal is to prove by substantial evidence
that the appellant’s performance was unsatisfactory in the period leading up to
her opportunity to demonstrate acceptable performance. In other words, the
agency is required to justify its decision to invoke chapter 43 performance
improvement procedures in the first instance. Id. at 1362. The Federal Circuit
overruled Board precedent to the contrary. See id. at 1360. Santos applies to all
cases pending before the Board, regardless of when the events at issue took place.
4
Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. We have considered
the effect of Santos on the instant appeal, and we find that it does not require a
different result or any further proceedings. The administrative judge in this case
actually adjudicated the issue and correctly found that the agency provided
substantial evidence to show that the appellant’s performance had been
unsatisfactory for several months prior to the opportunity to improve plan. ID
at 5, 16-17.
Regarding the appellant’s claim of retaliation for EEO activity, the
administrative judge adjudicated that as an alleged violation of 42 U.S.C.
§ 2000e-16 and found that the appellant failed to prove that retaliation was a
motivating factor in her removal. ID at 21-23. However, the protected activity at
issue—requesting a reasonable accommodation—is protected under the
Rehabilitation Act, and not under Title VII. Therefore, the administrative judge
should have applied a “but-for” causation standard rather than a motivating factor
standard.2 Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 43-47. Nevertheless, we see no basis to disturb the administrative judge’s
findings of fact, and because the appellant did not prove that retaliation was a
motivating factor in her removal, she necessarily did not prove that it was a
“but-for” cause. Therefore, we affirm the administrative judge’s finding, as
modified, to find that the appellant did not prove that her protected EEO activity
was a “but-for” cause of her removal.
2 At the time that the administrative judge issued his initial decision, the Board’s case
law stated that claims of retaliation under the Rehabilitation Act were subject to the
same motivating factor causation standard as claims of retaliation under Title VII.
Southerland v. Department of Defense , 119 M.S.P.R. 566, ¶ 20 (2013), overruled by
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 47.
5
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Linzy_Constance_M_DC-0432-17-0798-I-1 Final Order.pdf | 2024-02-07 | CONSTANCE M. LINZY v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DC-0432-17-0798-I-1, February 7, 2024 | DC-0432-17-0798-I-1 | NP |
2,411 | https://www.mspb.gov/decisions/nonprecedential/Guisinger_Celina_R_DE-1221-16-0255-W-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CELINA R. GUISINGER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-1221-16-0255-W-2
DATE: February 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Celina R. Guisinger , Lansing, Kansas, pro se.
Kristine H. Bell , Esquire, Fort Leavenworth, Kansas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
appeal.2 On petition for review, the appellant argues, among other things, that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the United States Code. Our disposition of this matter would be the same under both
administrative judge erred by finding that the agency proved by clear and
convincing evidence that it would have terminated her during her probationary
period even absent her protected activity. Petition for Review (PFR) File,
Tab 12. 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.3
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
During the second day of the hearing, the appellant’s representative
requested that the administrative judge recuse himself after the administrative
judge expressed frustration with him listening to his client while the
administrative judge was talking to him.4 Hearing Transcript (May 4, 2017)
at 149:16-150:8. The administrative judge denied the request. Id. at 150:9-19.
pre- and post-NDAA law.
3 Despite receiving two extensions of time to file a reply to the agency’s response to the
petition for review, the appellant never filed any reply. PFR File, Tabs 15-18. The
appellant requested a third extension to file a reply, PFR File, Tab 19, which the Office
of the Clerk of the Board denied, PFR File, Tab 20.
4 The appellant’s representative orally requested that the administrative judge recuse
himself, but never filed any written motion for the administrative judge to disqualify
himself, as required by our regulations. See 5 C.F.R. §§ 1201.42(b), 1201.55(a).
Nevertheless, we need not dismiss this issue on procedural grounds considering our
finding that the appellant failed to establish adjudicatory bias on the merits.2
On review, the appellant obliquely references the administrative judge’s decision
to deny the recusal request. PFR File, Tab 12 at 8. Even assuming that the
appellant argues on review that the administrative judge was biased against her
and erred by denying the recusal request, we find no basis to disturb the initial
decision.
In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540,
555 (1994)). Although the administrative judge may have become frustrated with
the appellant’s representative, under the circumstances here, the appellant has not
overcome the presumption of administrative honesty and integrity or established
that the administrative judge showed any deep -seated antagonism toward her. See
Liteky, 510 U.S. at 555; Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 15
(2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012); O’Neill v. Office of Personnel
Management, 102 M.S.P.R. 298, ¶¶ 8-9 (2006) (finding that the administrative
judge’s expression of “annoyance” toward the appellant throughout the entire
proceeding was insufficient to grant the petition for review based on alleged
bias).
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
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. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
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. 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 | Guisinger_Celina_R_DE-1221-16-0255-W-2 Final Order.pdf | 2024-02-07 | CELINA R. GUISINGER v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-1221-16-0255-W-2, February 7, 2024 | DE-1221-16-0255-W-2 | NP |
2,412 | https://www.mspb.gov/decisions/nonprecedential/Bradley_Cleophas_CH-1221-15-0517-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLEOPHAS BRADLEY, JR.,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-1221-15-0517-B-1
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Justin Randolph , Esquire, and Philip S. Holloway , Esquire, Chicago,
Illinois, for the appellant.
Robert Gerleman , Grand Prairie, Texas, for the agency.
Nicholas R. Hankey , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review and the agency has filed a
cross petition for review of the initial decision, which denied the appellant’s
request for corrective action in an individual right of action (IRA) appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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). After fully
considering the filings in this appeal, we conclude that neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review. Except as expressly MODIFIED by this Final Order
concerning the appellant’s protected disclosures and to vacate the administrative
judge’s findings that the agency proved by clear and convincing evidence that it
would not have selected the appellant for the Regional Director position absent
his protected disclosures, we AFFIRM the initial decision.
BACKGROUND
During the relevant time period, the appellant was employed by the agency
as the Deputy Regional Director for Region 5 of the Federal Protective Service
(FPS) in Chicago, Illinois. Bradley v. Department of Homeland Security , MSPB
Docket No. CH-1221-15-0517-W-1, Initial Appeal File (IAF), Tab 1 at 1, 25. He
filed an IRA appeal alleging that, in reprisal for his protected disclosures, the
agency declined to select him for a promotion to Regional Director of Region 5 in
or around March and December 2014 in connection with two separate vacancy
announcements. IAF, Tab 1. The appellant’s disclosures relate to the discovery
of a backlog in suitability determinations by FPS for Protective Security Officers2
(PSOs) working for contractor companies. Id. at 25-26. They also relate to an
incident in Detroit, Michigan, in which a contract PSO, who did not have an
up-to-date suitability determination, brought a suspicious bag containing an
improvised explosive device (IED) into a Federal building. Id. at 25. This
incident garnered national media attention and Congressional interest. Id.
This appeal was initially dismissed for lack of jurisdiction. IAF, Tab 19.
However, on petition for review, the Board remanded the appeal, finding that the
appellant nonfrivolously alleged that he made protected disclosures that were a
contributing factor in his nonselections. Bradley v. Department of Homeland
Security, 123 M.S.P.R. 547 (2016); Bradley v. Department of Homeland Security ,
MSPB Docket No. CH-1221-15-0517-B -1, Remand File (RF), Tab 1. The Board
found that the appellant nonfrivolously alleged that he made the following
protected disclosures between March and August 2011:
(1)On March 22, 2011, the appellant forwarded to his supervisor a list of
PSOs who did not have current suitability determinations and noted
that 10 of the 47 PSOs involved in the Detroit IED incident had not
received suitability determinations. The appellant’s supervisor
forwarded the email to the FPS Director and Deputy Director;
(2)On March 30, 2011, the appellant’s supervisor reported to the FPS
Deputy Director that he and the appellant had determined that
224 PSOs in Region 5 did not have current suitability determinations
and 172 of those 224 were improperly working on contracts in the
region;
(3)On May 10 and 18, 2011, the appellant’s supervisor reported to the
Assistant Director for Operations assigned to Region 5 (among others)
that he and the appellant had determined that 224 PSOs in Region 5
did not have current suitability determinations and 172 of those 224
were working on contracts in the region;
(4)On May 18, 2011, the appellant told the FPS Director that the Detroit
IED incident could not have occurred without some degree of
negligence by FPS employees in Region 5 and that an internal
investigation was being conducted;
(5)On July 13, 2011, the appellant commented to the Assistant General
Counsel that the FPS Director had just “lied to Congress about the
Detroit IED issue”; and3
(6)On August 30, 2011, the appellant and his supervisor sent a
memorandum to the FPS Director describing the details and
chronology of the Detroit IED incident and the backlog of suitability
determinations.
RF, Tab 1 at 5-6.
On remand, after holding a 4-day hearing, the administrative judge issued a
remand initial decision, denying the appellant’s request for corrective action. RF,
Tab 41, Remand Initial Decision (RID). The administrative judge found that,
although the appellant proved that disclosures (1) and (4) were protected, RID
at 24-27, he failed to prove that they were a contributing factor in the agency’s
decisions not to select him as Regional Director, RID at 30-35. In particular, the
administrative judge found that the 3-year gap in time between the appellant’s
2011 disclosures and the 2014 nonselections was too remote to infer retaliation on
the agency’s part under the knowledge/timing test. RID at 31-32. She further
found that the appellant failed to prove contributing factor, considering the
strength of the agency’s reasons for its actions, whether the whistleblowing was
directed at the deciding officials, and whether the deciding officials had a motive
to retaliate. RID at 33-35. Alternatively, the administrative judge found that the
agency proved by clear and convincing evidence that it would not have selected
the appellant absent his protected disclosures. RID at 35-38.
The appellant has filed a petition for review, arguing that the administrative
judge erred in finding that disclosures (2), (3), (5), and (6) were not protected and
that he failed to prove that his disclosures were a contributing factor in his
nonselections. Petition for Review (PFR) File, Tab 1. The appellant also
challenges the administrative judge’s alternate finding that the agency proved by
clear and convincing evidence that it would not have selected him as Region 5
Regional Director absent his protected disclosures. Id. The agency has filed a
response to the petition for review and a cross petition for review, arguing that
the administrative judge erred in concluding that disclosures (1) and (4) were4
protected.2 PFR File, Tabs 3-4. The appellant has filed a reply to the agency’s
response to his petition for review and a response to the agency’s cross petition
for review. PFR File, Tabs 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the appellant failed to prove that
disclosures (2), (3), and (5) were protected disclosures.
To prove that a disclosure is protected, the appellant must prove by
preponderant evidence3 that a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by him could reasonably
conclude that: the alleged conduct occurred; and the alleged conduct evidences
one of the categories of wrongdoing identified in 5 U.S.C. § 2302(b)(8)(A).
Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 28 (2014).4 The
test for protected status is not the truth of the matter disclosed but whether it was
reasonably believed. Id.
¶1Regarding disclosures (2) and (3), the administrative judge found that the
appellant did not prove by preponderant evidence that he made these alleged
disclosures or that agency officials perceived him to be a whistleblower based on
such alleged disclosures. RID at 23-24. The administrative judge determined that
the appellant’s supervisor made the disclosures, and the appellant was not present.
RID at 24. On review, the appellant reiterates that disclosures (2) and (3) served
as continuing reminders of disclosure (1) and that the appellant’s supervisor was
simply passing on the same information from the appellant during his
conversations with the FPS Deputy Director and the Assistant Director for Field
2 In light of our disposition of this appeal, we need not address the agency’s arguments
on cross petition for review.
3 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4 We have reviewed the relevant legislation amending the whistleblower protection
statutory scheme enacted during the pendency of this appeal and have concluded that it
does not affect the outcome of the appeal.5
Operations (ADFO). PFR File, Tab 1 at 12. The administrative judge, however,
found that the hearing testimony reflected that neither the FPS Deputy Director
nor the ADFO attributed either conversation or its substance to the appellant.
RID at 24. She further noted that, because the appellant withdrew his supervisor
as a witness, his supervisor did not testify as to the substance of his conversations
with the FPS Deputy Director and the ADFO. Id.
The appellant’s conclusory arguments on review fail to address these
findings, and we discern no error in the administrative judge’s finding that the
appellant failed to prove that disclosures (2) and (3) were protected disclosures.
The administrative judge based her conclusion that the appellant failed to prove
that the FPS Deputy Director and the ADFO perceived him to be a whistleblower
at least in part on her assessment of their credibility and demeanor as witnesses,
and the appellant has not proffered a sufficiently sound reason to set aside such
findings. RID at 24; see Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002) (stating that the Board is required to give deference to an
administrative judge’s credibility determinations when, as here, they are based,
explicitly or implicitly, on witness demeanor and the Board may not overturn
such findings without sufficiently sound reasons for doing so); see also Rumsey v.
Department of Justice , 120 M.S.P.R. 259, ¶ 7 (2013) (stating that in “perceived
as” cases, the focus is not on the appellant’s perceptions or the disclosures
themselves but on the agency’s perceptions, i.e., whether the agency officials
involved in the personnel actions at issue believed that the appellant made
disclosures).
Disclosure (5) concerned the appellant’s comment to the Assistant General
Counsel that the FPS Director had “lied to Congress about the Detroit IED issue.”
IAF, Tab 1 at 29. According to the appellant, he believed that the FPS Director
had lied to Congress by indicating that only PSOs not FPS personnel were
responsible for the Detroit IED incident. Id. In particular, the appellant testified
that the FPS Director’s testimony was untruthful by omission because “he didn’t6
mention at all anything about FPS having any culpability or any responsibility.”
RF, Tab 36, Hearing Transcript at 37. The administrative judge found that a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable to the appellant would not have concluded that the FPS Director lied
to Congress. RID at 29. She found that the FPS Director did not testify before
Congress that FPS bore no responsibility for the incident and his congressional
testimony was replete with instances in which he acknowledged and discussed
FPS issues and the need for improvement. Id.
On review, the appellant asserts that an August 30, 2011 memorandum
from the appellant’s supervisor to the FPS Director, which outlines the
background and timeline of events regarding the Detroit IED incident, supports
the reasonableness of his belief that the FPS Director’s testimony was false. PFR
File, Tab 1 at 13. However, he fails to explain how the memorandum establishes
any error in the administrative judge’s findings or supports the reasonableness of
his belief at the time he made the alleged disclosure on July 13, 2011. Moreover,
the memorandum appears to support the FPS Director’s testimony before the
Board that he did not inform Congress that FPS employees were under
investigation because the investigation had not been completed at the time of his
testimony before Congress. RF, Tab 16 at 9; RID at 11. Thus, we find the
appellant has not provided a basis to disturb the administrative judge’s finding
that he failed to prove that disclosure (5) was protected.
The administrative judge erred in finding that the appellant failed to prove that
disclosure (6) evidenced protected disclosures.
Disclosure (6) is an August 30, 2011 memorandum from the appellant’s
supervisor to the FPS Director. RF, Tab 16 at 4. The appellant’s name was
included on the “ATTN” line. Id. The administrative judge found that the
appellant was not the author of the memorandum because it was clearly identified
as being from the appellant’s supervisor and the appellant’s signature next to his
name on the “ATTN” line reflected only that he had received the memorandum.7
RID at 27. She further found that the entire memorandum was written as if it
were from the appellant’s supervisor, largely using “I” instead of “We.” Id. She
also credited testimony of the FPS Director and Deputy Director that they
perceived the memorandum to be from the appellant’s supervisor. RID at 28.
Thus, she found that any disclosures in the memorandum could not be attributed
to the appellant. RID at 28.
On review, the appellant argues that the administrative judge erred in
finding that disclosure (6) was not protected because it is inextricably intertwined
with his protected disclosures to the extent the memorandum served to summarize
all the events surrounding the Detroit IED incident. PFR File, Tab 1 at 13. We
agree with the appellant that his supervisor’s August 2011 memorandum to the
FPS Director referenced the appellant’s various actions in response to the Detroit
IED incident. To the extent the memorandum included a copy of the appellant’s
March 22, 2011 email in which the appellant noted that 10 of the 47 PSOs
involved in the Detroit IED incident had not received suitability determinations,
RF, Tab 16 at 50-51, this formed the basis of disclosure (1), which the
administrative judge properly found the appellant proved constituted a protected
disclosure, RID at 24-25. Thus, the same protected disclosure had previously
been communicated to the FPS Director and Deputy Director on March 23, 2011,
when the appellant’s supervisor forwarded it to them and was merely forwarded
again on August 30, 2011, as an attachment to the appellant’s supervisor’s
memorandum to the Director. Similarly, the August 2011 memorandum also
referenced the appellant’s disclosure (4), which pertained to the appellant’s
conversation with the FPS Director on May 18, 2011, during which the appellant
disclosed that the March 18, 2011 incident could not have occurred without some
fault on the part of FPS. RF, Tab 16 at 9. The administrative judge properly
determined that the appellant proved that disclosure (4) was a protected
disclosure. Thus, the administrative judge properly considered the substance of8
protected disclosures (1) and (4), which were simply reiterated via the August 30,
2011 memorandum.
To the extent the appellant alleges that he disclosed that 224 PSOs in
Region 5 did not have current suitability determinations and 172 of those 224
were improperly working on contracts in the region, we find that, unlike his
alleged disclosures (2) and (3), the August 30, 2011 memorandum sufficiently
attributed such a disclosure to the appellant. RF, Tab 16 at 6-7. Moreover, for
the reasons explained by the administrative judge regarding the appellant’s
disclosure (1) that also related to PSOs not having up-to-date suitability
determinations and given the circumstances under which the PSO who placed the
IED in the Detroit facility was one of the 172 who had not received an
appropriate suitability determination and who should not have been working on
the contract, we find that such a disclosure evidences a reasonable belief of a
substantial and specific danger to public health and safety. RID at 25-27.
The administrative judge properly found that the appellant failed to show that his
protected disclosures were a contributing factor in his nonselection for the
Region 5 Regional Director position.
On review, the appellant does not dispute the administrative judge’s finding
that he failed to prove contributing factor via the knowledge/timing test, and we
discern no error in the administrative judge’s analysis. In particular, the
administrative judge found that the appellant’s March and December 2014
nonselections occurred approximately 3 years after the appellant’s March and
May 2011 disclosures, which was too remote to satisfy the knowledge/timing test.
RID at 31. Even considering the appellant’s disclosures in the August 30, 2011
memorandum, the relevant personnel actions were still too remote to satisfy the
knowledge/timing test. See, e.g., Salinas v. Department of the Army , 94 M.S.P.R.
54, ¶ 10 (2003) (finding an approximate 2-year gap between disclosures and
alleged retaliatory personnel actions too remote to satisfy the knowledge/timing
test). On review, the appellant contends that the administrative judge erred in9
limiting her analysis solely to the knowledge/timing test. PFR File, Tab 1 at 14.
Contrary to the appellant’s assertion, however, the administrative judge
specifically considered additional factors such as the strength of the agency’s
evidence, whether the whistleblowing was personally directed at the deciding
official, and whether the deciding official had a motive to retaliate. RID
at 32-35. On review, the appellant also argues that the FPS Director’s reasons for
not selecting him, such as his failure to show a proper vision and that he had not
had an opportunity to work under a good mentor, were weak.5 PFR File, Tab 1 at
15-16.
The administrative judge found that the agency’s evidence in support of its
decision not to select the appellant for the positions was strong because the
agency utilized a selection panel for both vacancies, neither panel recommended
the appellant as one of the top-five candidates for either vacancy, and although
the FPS Director and Deputy Director could have vetoed the selection by the
panel, all of the evidence presented at the hearing indicated that such a scenario
was extremely rare. RID at 33. Regarding the selection process, the
administrative judge found that a selection panel reviewed and rated resumes and
interviewed candidates and did not recommend the appellant for the position.
RID at 12-13. Nonetheless, the FPS Director and Deputy Director declined to
offer the position to the other candidates and thereafter elected to interview the
appellant and one other internal candidate, even though they were not
recommended by the selection panel. RID at 14. The FPS Director declined to
offer either of them the position, and the position was readvertised. Id. A second
selection panel reviewed resumes and conducted interviews, but they did not rank
the appellant among the most qualified and did not recommend him for the
position. RID at 15. The selection panel members for both vacancy
5 He also argues that his whistleblowing was directed at the deciding official because he
disclosed that the FPS Director was lying to Congress. PFR File, Tab 1 at 16.
However, as set forth above, we discern no error in the administrative judge’s finding
that the appellant failed to prove that this was a protected disclosure.10
announcements all testified that they were not aware of the appellant’s protected
disclosures, with the exception of one panel member, who did not testify at the
hearing. RID at 12-15. The administrative judge credited their testimony and
concluded that the selection panel’s decision not to recommend the appellant for
either vacancy provided strong evidence in support of the agency’s reason for not
selecting him. RID at 13, 15-16, 33.
The administrative judge further found that neither the selection panel
members nor the FPS Director or Deputy Director evidenced a desire to retaliate
against the appellant, noting that the appellant did not uncover or expose the
backlog in suitability determinations and the record reflected that management
was receptive to the information contained in the appellant’s disclosures,
routinely thanked him for his efforts following the Detroit IED incident, and took
numerous steps to investigate the issues raised by the appellant and make changes
for the better. Id. at 18-19, 33-34 . Additionally, she considered that the
appellant’s disclosures could have reflected poorly on the agency as a whole but
credited testimony of the FPS Director and Deputy Director that they wanted to
be kept abreast of the Detroit IED incident and the suitability backlog and
welcomed information on these topics. RID at 18-19, 34. The administrative
judge further found that the appellant’s whistleblowing was not directed at the
members of the selection panels, the FPS Director, or the Deputy Director but
rather, at the Region 5 employees who were under investigation as a result of the
Detroit IED incident. RID at 34. Finally, she found that, although the appellant
was not selected for the Regional Director position, he was offered a GS-15
Senior Advisor position in the spring of 2014, at the same time he claimed the
agency was retaliating against him. RID at 34-35. Thus, the administrative judge
concluded that the appellant’s self-serving testimony that management was out to
get him was inconsistent with the documentary evidence and the testimony of
every other witness, except one, whose testimony she found not credible. RID
at 20-21, 35. 11
As the initial decision reflects that the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions, we discern no reason to reweigh the evidence or substitute the
Board’s own judgment on credibility issues. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997) (stating that the Board will give due deference to
the credibility findings of the administrative judge and will not grant a petition
for review based on a party’s mere disagreement with those findings);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same). We therefore defer to these reasoned and explained credibility
findings, which we find apply equally, even considering the appellant’s protected
disclosure (6). See Haebe, 288 F.3d at 1302.6 Consequently, the administrative
judge properly determined that the appellant failed to prove that his protected
disclosures were a contributing factor in the agency’s decision not to select him.
Notwithstanding her determination that the appellant failed to prove that
his protected disclosures were a contributing factor in the agency’s decision not
to select him, the administrative judge alternatively found that the agency showed
by clear and convincing evidence that it would not have selected the appellant
absent his protected disclosures. RID at 35-38. Given her correct finding that the
appellant failed to prove his prima facie case, it was inappropriate for the
administrative judge to determine whether the agency proved by clear and
6 The appellant argues that the Board should not defer to the administrative judge’s
credibility determinations because she failed to resolve conflicting testimony regarding
when the FPS Director and Deputy Director became aware of his protected disclosures.
PFR File, Tab 1 at 14, 19-21. In particular, he contends that their testimony, in which
they denied having any knowledge of his whistleblowing complaint prior to the
nonselections at issue in this appeal, was inconsistent with his testimony that the
Deputy Director participated in a mediation concerning his whistleblowing complaint
less than 6 months prior to the first nonselection and the Director discussed his
whistleblowing complaint with him approximately 4 months prior the first nonselection.
Id. at 20. We find that these arguments do not constitute a sufficiently sound reason to
overturn the administrative judge’s credibility findings to the extent the administrative
judge found that the Director and Deputy Director were aware of the appellant’s
disclosures at the time they made their decisions not to select him. RID at 31.12
convincing evidence that it would not have selected the appellant absent his
protected disclosures. See Clarke v. Department of Veterans Affairs ,
121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the
clear and convincing evidence test unless it has first determined that the appellant
established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).
Accordingly, we vacate the administrative judge’s findings that the agency
proved by clear and convincing evidence that it would not have selected the
appellant absent his whistleblowing.
Based on the foregoing, we affirm the initial decision, denying 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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain14
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 15
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Bradley_Cleophas_CH-1221-15-0517-B-1__Final_Order.pdf | 2024-02-06 | null | CH-1221-15-0517-B-1 | NP |
2,413 | https://www.mspb.gov/decisions/nonprecedential/Christian_Albert_W_PH-0752-21-0068-I-2 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALBERT WAYNE CHRISTIAN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
PH-0752-21-0068-I-2
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
ark Keenheel , Esquire, Philadelphia, Pennsylvania, for the appellant.
Danae K. Remmert , Esquire, and John F. Schorn , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which affirmed his removal for failure to follow procedures and failure to follow
instructions. On petition for review, the appellant argues that the administrative
judge erred in finding that his “alleged errors” at work concerned conduct instead
of performance, which would have therefore required him to be placed into a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
performance improvement plan. Petition for Review File, Tab 1 at 1-3.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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 | Christian_Albert_W_PH-0752-21-0068-I-2 Final Order.pdf | 2024-02-06 | ALBERT WAYNE CHRISTIAN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-0752-21-0068-I-2, February 6, 2024 | PH-0752-21-0068-I-2 | NP |
2,414 | https://www.mspb.gov/decisions/nonprecedential/Clyde-Craft_Ursula_Y_AT-0752-18-0772-I-1 Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
URSULA YVETTE CLYDE-CRAFT,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-18-0772-I-1
DATE: February 6, 2024
THIS ORDER IS NONPRECEDENTIAL1
Fateen Anthony Bullock , Esquire, Atlanta, Georgia, for the appellant.
Deetric M. Hicks , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this appeal for lack of jurisdiction as an involuntary retirement appeal.
For the following reasons, we GRANT the petition for review, VACATE the
initial decision, FIND that the Board has always had jurisdiction over this appeal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
as an actual removal appeal, and REMAND for further adjudication consistent
with this order.
BACKGROUND
In July 2018, the agency proposed to remove the appellant from her
Supervisory Budget Analyst position under 38 U.S.C. § 714 for failure to perform
the critical elements of her performance plan. Initial Appeal File (IAF), Tab 11
at 4-9. On September 10, 2018, the agency issued a decision finding that the
charge was supported by substantial evidence and setting the effective date of the
removal as September 14, 2018. IAF, Tab 8 at 15-17. The appellant retired on
September 13, 2018, before the effective date of the removal. Id. at 14. On
September 24, 2018, the appellant filed a Board appeal, challenging the agency’s
removal decision and asserting that the removal was based on retaliation for prior
equal employment opportunity (EEO) activity. IAF, Tab 1. She requested as
relief, among other things, rescission of the proposed removal and removal
decision, reinstatement, back pay and benefits, attorney fees, and damages. Id.
at 12-13.
The appeal was adjudicated as an actual removal appeal without any
apparent objection until 2 days before the scheduled hearing when the agency
notified the appellant that it was rescinding the September 10, 2018 removal
decision and moved to dismiss the appeal. IAF, Tab 8 at 7-8, Tabs 17, 19, 20
at 6. The agency argued, essentially, that the removal had not been effectuated
and it had completely rescinded the removal by ensuring that there were no
documents in the appellant’s Official Personnel File (OPF) that related to the
proposed removal or the decision letter. IAF, Tab 26. The agency maintained
that her OPF now reflects only a separation by voluntary retirement. Id. at 5, 8-9.
The agency moved for dismissal of the appeal. Id. at 5.
Based largely on the absence of paperwork referencing the removal action
in the appellant’s OPF, the administrative judge found that the agency proved that2
the appellant’s removal appeal was moot and the Board lacks jurisdiction to
adjudicate the appeal as a removal appeal. IAF, Tab 27. However, the
administrative judge noted that the appellant might be able to establish that her
retirement was involuntary and tantamount to a constructive removal over which
the Board might have jurisdiction under 5 U.S.C. chapter 75. Id. at 2. Instead of
dismissing the appeal, the administrative judge redocketed it as one involving a
claim of involuntary retirement. Id.
After a hearing, the administrative judge issued an initial decision
dismissing the involuntary retirement appeal for lack of jurisdiction because the
appellant failed to prove, by preponderant evidence, that her decision to retire
constituted a constructive removal that is appealable to the Board. IAF, Tab 48,
Initial Decision (ID) at 1, 12-13. Because of his jurisdictional finding, the
administrative judge did not decide whether the appellant had proven her
affirmative defense of retaliation for EEO activity. ID at 2. The appellant has
filed a petition for review, and the agency has filed a response. Petition for
Review (PFR) File, Tabs 1, 3.
ANALYSIS
We vacate the initial decision because the Board retains jurisdiction to adjudicate
the removal appeal and the appellant’s concomitant claim of retaliation for EEO
activity.
The Board’s jurisdiction is determined by the nature of an agency’s action
against a particular appellant at the time an appeal is filed with the Board. E.g.,
Vidal v. Department of Justice , 113 M.S.P.R. 254, ¶ 4 (2010); accord Wells v.
Merit Systems Protection Board , 730 F. App’x 909, 911 (Fed. Cir. 2018);
Mosteller v. Merit Systems Protection Board , 673 F. App’x 998, 999 (Fed. Cir.
2017); Holleman v. Merit Systems Protection Board , 629 F. App’x 942, 946 (Fed.
Cir. 2015).2 At the time this appeal was filed, the Board had jurisdiction over it
2 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. E.g., Morris v.
Department of the Navy , 123 M.S.P.R. 662, ¶ 13 n.9 (2016).3
as an actual removal appeal. IAF, Tab 8 at 7-8, Tabs 17, 19; see 38 U.S.C.
§ 714(c)(4)(A); 5 U.S.C. § 7701(a)-(b). On September 10, 2018, the agency
issued its removal decision, which stated that the removal was effective on
September 14, 2018. IAF, Tab 8 at 15-17. The appellant’s retirement, effective
September 13, 2018, did not affect her appeal right in these circumstances. Under
5 U.S.C. § 7701(j), neither an individual’s status under any Federal retirement
system nor any election under such system may be taken into account in a case
involving a removal from the service. When, as here, an agency issues its
removal decision before an appellant retires, the appellant may appeal the
removal to the Board. See Mays v. Department of Transportation , 27 F.3d 1577,
1578-81 (Fed. Cir. 1994); Paula v. Social Security Administration , 119 M.S.P.R.
138, ¶ 12 (2013). Thus, we conclude that this matter was being properly
adjudicated as an actual removal appeal when, 2 days before the hearing, the
agency notified the appellant that it was rescinding its removal decision and
moved to dismiss the appeal. IAF, Tab 19 at 5, Tab 20. For the following
reasons, we find that the agency’s post-appeal, unilateral attempt at rescission did
not moot the appeal and the Board retained jurisdiction to adjudicate the removal
appeal.
An agency’s unilateral modification of its personnel action after an appeal
has been filed cannot divest the Board of jurisdiction, unless the appellant
consents to such divestiture or the agency completely rescinds the action being
appealed. E.g., Rodriguez v. Department of Homeland Security , 112 M.S.P.R.
446, ¶ 12 (2009). For an appeal to be deemed moot, the agency’s recission must
be complete, i.e., the appellant must be returned to the status quo ante and not left
in a worse position as a result of the cancellation than she would have been in if
the matter had been adjudicated and she had prevailed. Id.
We must therefore evaluate the possible relief that the appellant could have
received before the Board had she prevailed in her removal appeal. In Paula,4
119 M.S.P.R. 138, ¶ 14,3 the Board held that an appellant who retires in the face
of a final removal decision, and whose removal subsequently is invalidated, is
entitled to the same relief as if he did not retire. Mr. Paula retired on the same
date that his removal was to take effect; the Board reversed the removal on due
process grounds, and it ordered the agency to cancel the removal, restore Mr.
Paula, and pay him the correct amount of back pay, interest on back pay, and
other benefits pursuant to the Back Pay Act. Id., ¶¶ 3-4. The agency canceled the
appellant’s removal, but it did not reinstate him or pay him back pay or benefits.
Id., ¶ 5. The appellant filed a petition for enforcement, and the administrative
judge issued a Recommendation finding the agency in noncompliance with the
Board’s final order. Id., ¶¶ 6, 8. The Board agreed with the administrative
judge’s finding of agency noncompliance, and it ordered relief to include
cancellation of the removal action, restoration of Mr. Paula, and back pay,
interest on back pay, and other benefits under the Back Pay Act. Id., ¶¶ 17-21.
Like Paula, if the appellant’s removal had been reversed, she could have
been awarded the same relief—cancellation of the removal action, restoration to
her position, and back pay and other benefits. See id. Thus, in order for the
removal appeal to be moot, she must have received such relief. There is no
dispute that her OPF contains no references to the removal or proposed removal,
so in that sense, the removal was “cancelled.” However, there is no evidence that
the agency restored her to her position or paid her any back pay or benefits.
Although, in certain circumstances, an appellant’s intervening, voluntary
decision to retire might negate her entitlement to reinstatement, back pay, and/or
benefits, the record does not support such a finding here. The appellant has
consistently maintained that she changed her retirement date in response to the
agency’s removal action. E.g., IAF, Tab 28 at 36-37, 61, Tab 37 at 31, 34-35, 57.
For instance, in affidavits, she averred that, prior to her receipt of the notice of
3 Although Paula arose in the context of a compliance proceeding, we use the principles
articulated therein to guide our analysis in determining the relief to which the appellant
could be entitled if she were successful in her removal appeal.5
proposed removal, she intended to retire on or about December 31, 2027. IAF,
Tab 29 at 20-21, Tab 37 at 31. After receipt of the notice of proposed removal,
she appears to have made inquiries and taken steps towards retiring at an earlier
date, in October or November 2018. IAF, Tab 8 at 19, Tab 26 at 8, Tab 28 at 36,
52. There is further evidence that, after receipt of the agency’s removal decision
on September 10, 2018, she changed her retirement date to September 13, 2018.
IAF, Tab 28 at 37.4 Indeed, in support of its motion to dismiss, the agency
submitted an affidavit from a Supervisor Human Resources Consultant, who
testified that, on August 8, 2018, the appellant requested a retirement estimate
and initially selected a retirement date of October 31, 2018, but after receiving
“notification of possible removal,”5 the appellant “decided to move the retirement
date to September 13, 2018.” IAF, Tab 26 at 8. On this record, we find that the
agency failed to establish that the appellant would not have been entitled to
reinstatement, back pay, and/or benefits had she prevailed in her removal appeal.
Moreover, the appellant alleged that the removal action was taken in
retaliation for her EEO activity, and she requested “all lawful damages” based on
the agency’s alleged prohibited personnel practice. IAF, Tab 1 at 8, 10-12.
Because the appellant might have been entitled to relief, such as damages, beyond
the removal of paperwork from her OPF, her removal appeal could not be
dismissed as moot on the existing record without adjudication of her retaliation
defense. See, e.g., Lamberson v. Department of Veterans Affairs , 80 M.S.P.R.
648, ¶¶ 12-14, 36 (1999) (finding that, because the Board initially had
jurisdiction over the appeal of the removal action, the agency’s post -appeal
4 An employee has the right to set the effective date of her resignation and 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 (2008); 5 C.F.R. § 715.202. Avoidance of adverse action
proceedings is not a valid reason. 5 C.F.R. § 715.202(b).
5 The agency issued its notice of proposed removal in July 2018, prior to the referenced
August 8, 2018 request, so, we understand the affiant to be referring here to the
subsequent removal decision notice dated September 10, 2018.6
rescission of that action did not render the appeal moot and the Board retained
jurisdiction to adjudicate Ms. Lamberson’s claims of discrimination and
retaliation);6 see also Hess v. U.S. Postal Service , 124 M.S.P.R. 40, ¶ 8 (2016)
(stating that, if an appellant raises a claim for compensatory damages that the
Board has jurisdiction to adjudicate, the agency’s complete rescission of the
action appealed does not afford her all of the relief available before the Board and
the appeal is not moot). Because the agency has not established that the appellant
has been given all of the relief to which she could be entitled if she prevailed in
her removal appeal, the appeal is not moot, and the Board retains jurisdiction to
adjudicate both the removal appeal and her claim of retaliation for EEO activity.
The administrative judge supported his mootness finding with reference to
Jenkins v. Merit Systems Protection Board , 911 F.3d 1370 (Fed. Cir. 2019),
which in turn relied in large part on Cooper v. Department of the Navy , 108 F.3d
324 (Fed. Cir. 1997). IAF, Tab 27 at 2. We find that neither of these precedents
compels a different result. In Jenkins, the court considered a situation in which
the agency rescinded its removal action on the same day that the appellant retired.
Jenkins, 911 F.3d at 1372. The appellant subsequently filed a constructive
removal appeal with the Board. Id. The Board concluded, and the court agreed,
that the appellant failed to establish that he had been subjected to an action that
was appealable to the Board. Id. at 1373, 1376-77. The facts of Jenkins are
unlike the facts of this case in that all of the actions to rescind the removal
occurred before the appellant filed a Board appeal and the Board never had
jurisdiction over an appealable action. Id. at 1372-73. In contrast, here, the
appellant had a pending removal appeal, which was properly being adjudicated as
such when, about 5 months into the adjudication, the agency for the first time
6 Ms. Lamberson was awarded disability retirement after she filed her Board appeal, the
agency moved to dismiss the appeal as moot because it had retroactively separated her
on disability retirement, canceled the removal, and deleted all references to the removal
from her OPF. Lamberson, 80 M.S.P.R. 648, ¶ 3. The disability retirement
determination rendered her ineligible for back pay. See infra ¶ 13.7
took steps to attempt to rescind its action. Thus, neither the Board nor the court
in Jenkins needed to address the issue presented here of whether the agency’s
post-appeal, unilateral action mooted an appeal over which the Board had
jurisdiction because the appellant had received all of the relief to which he would
have been entitled had he prevailed in a removal appeal.
In Jenkins, the court noted that its decision was “governed by” Cooper. Id.
at 1375. Cooper involved an agency’s post-appeal rescission of a removal action
after the appellant’s application for disability retirement was approved retroactive
to a date prior to his removal. Cooper, 108 F.3d at 325-26. The court found that
the agency canceled the removal, removed all references to that action from
Mr. Cooper’s OPF, and “eliminated all the consequences of that action,” which
rendered the appeal moot. Id. at 326. Although the agency rescinded
Mr. Cooper’s removal after he filed a Board appeal, Mr. Cooper was awarded
retroactive disability retirement and was thus ineligible for any back pay. See
5 C.F.R. § 550.805(c)(1) (stating that an agency may exclude from a back pay
calculation “[a]ny period during which an employee was not ready, willing, and
able to perform his or her duties because of an incapacitating illness or injury”).
Moreover, in Jenkins and Cooper, there were no discrimination or retaliation
claims or a concomitant request for damages before the court. See, e.g., Jenkins,
911 F.3d at 1372 n.2 (noting that Mr. Jenkins “abandoned his formerly asserted
discrimination claims”); Cooper, 108 F.3d at 327 (stating that Mr. Cooper’s
claims of discrimination and/or reprisal and request for damages in his district
court matter were “based on agency conduct extending beyond [his] removal” and
“would be outside the jurisdiction of the [Board] even if the Board had
jurisdiction over Cooper’s appeal from his removal”).
Thus, we find that the circumstances of this matter are distinguishable from
Jenkins and Cooper, and the court’s rationale for finding that those appeals were
moot is inapplicable here. Once the appellant filed a Board appeal challenging a
matter over which the Board has jurisdiction, such as the agency’s removal8
action, such jurisdiction cannot be extinguished based on mootness unless the
appellant has received all the possible relief that she could have obtained had she
prevailed before the Board, i.e., unless it is impossible for the Board to grant any
further effectual relief. See, e.g., Wheeler v. Department of Defense ,
113 M.S.P.R. 376, ¶ 12 (2010). The administrative judge erred in finding that the
removal appeal was moot based on the existing record when there were
outstanding issues regarding the appellant’s entitlement to restoration, back pay
and benefits, and further relief in connection with her retaliation defense.
We remand the removal appeal for further adjudication and provide the following
guidance to the administrative judge and the parties.
Having found that the Board retains jurisdiction to adjudicate the removal
appeal and the related retaliation defense, it is appropriate to remand the appeal
for further adjudication. See, e.g., Fernandez v. Department of Justice ,
105 M.S.P.R. 443, ¶ 5 (2007) (stating that, if an appeal is not truly moot despite
cancellation of the action under appeal, the proper remedy is for the Board to
retain jurisdiction and to adjudicate the appeal on the merits). We provide the
following guidance to assist the administrative judge and parties on remand.
Since the initial decision was issued, the Board issued a decision in
Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶¶ 11-20, which
clarified that the standard at 5 U.S.C. chapter 75 is applicable to
performance-based actions taken under 38 U.S.C. § 714. Thus, the agency must
show by substantial evidence that its performance standard was reasonable,
provided for accurate measurement of the appellant’s performance, and that the
appellant’s performance was unacceptable according to that measurement. Id.,
¶ 20 (citing Graham v. Department of the Air Force , 46 M.S.P.R. 227, 235
(1990)). The administrative judge should reopen the record to allow the parties to9
take evidence and argument, including a supplemental hearing, if necessary, on
this issue.7
Additionally, the record reflects that the deciding official in his decision
letter concluded that the charge of failure to perform the critical elements of the
performance plan was “supported by substantial evidence.” IAF, Tab 8 at 15. In
Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (Fed. Cir.
2021), our reviewing court found that the agency erred by applying a substantial
evidence burden of proof to its internal review of an action taken pursuant to
38 U.S.C. § 714; rather, the court held that substantial evidence is the standard of
review to be applied by the Board in such actions. The court’s decision in
Rodriguez applies to all pending cases, regardless of when the events at issue
took place. Semenov, 2023 MSPB 16, ¶ 22. The administrative judge and the
parties did not have the benefit of Rodriguez and therefore were unable to address
its effect on this appeal. See id. Accordingly, we remand the appeal for the
administrative judge to afford the parties an opportunity to present evidence and
argument, including a supplemental hearing, on the issue of whether the agency’s
use of the substantial evidence standard in the removal decision constituted
harmful procedural error under 5 U.S.C. § 7701(c)(2)(A). See Semenov,
2023 MSPB 16, ¶¶ 21-25. The administrative judge should then address this
affirmative defense in the remand initial decision.8 See id., ¶ 25.
Finally, in Connor v. Department of Veterans Affairs , 8 F.4th 1319,
1325-36 (Fed. Cir. 2021), the court held that the Board must consider and apply
the penalty factors under Douglas v. Veterans Administration , 5 M.S.P.R. 280,
305-06 (1981), when reviewing penalties in actions taken pursuant to 38 U.S.C.
7 Because we are remanding the appeal, we do not reach the appellant’s arguments on
review regarding the agency’s burden to prove the charge.
8 Regardless of whether the appellant proves harmful error in the agency’s use of the
substantial evidence burden of proof in this removal decision, if any evidence or
argument on remand affects the administrative judge’s analysis of the appellant’s
affirmative defenses or the penalty, the administrative judge should address such
evidence and argument in the remand initial decision. Id., ¶ 26.10
§ 714. Semenov, 2023 MSPB 16, ¶ 49. It is not clear from the proposal letter and
the decision letter that the proposing official or deciding official considered all of
the relevant penalty factors. IAF, Tab 8 at 15-17, Tab 11 at 4-9. Moreover,
because the administrative judge did not have the benefit of the court’s decision
in Connor or other cases that discuss the Board’s obligation to review the penalty
in an action taken under 38 U.S.C. § 714, he did not identify the penalty as an
issue to be adjudicated when the appeal involved a removal action. See, e.g.,
IAF, Tab 19 at 2 (stating in the order and summary of prehearing conference that
an administrative judge may not mitigate the agency’s chosen penalty pursuant to
38 U.S.C. § 714(d)(2)(B)). On remand, the administrative judge should permit
the parties to submit additional evidence and argument, including a supplemental
hearing, if necessary, on the penalty issue. See Semenov, 2023 MSPB 16, ¶ 50.
In reviewing the penalty, the administrative judge should determine whether the
agency proved by substantial evidence that it properly applied the relevant
Douglas factors and whether the agency’s penalty was reasonable and, if not,
remand the appellant’s removal to the agency for a new removal decision. Id.
(citing, among other cases, Connor, 8 F.4th at 1326-27).11
ORDER
For the reasons described above, we vacate the initial decision, find that the
Board has jurisdiction over the removal appeal and the related claim of retaliation
for EEO activity, and remand the appeal to the regional office for further
adjudication consistent with this order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Clyde-Craft_Ursula_Y_AT-0752-18-0772-I-1 Remand Order.pdf | 2024-02-06 | null | AT-0752-18-0772-I-1 | NP |
2,415 | https://www.mspb.gov/decisions/nonprecedential/Patel_Smita_A_CH-0353-18-0057-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SMITA A. PATEL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0353-18-0057-I-1
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
mita A. Patel , Hoffman Estates, Illinois, pro se.
Deborah L. Lisy , Esquire, and Adam G. Eisenstein , Esquire, Chicago,
Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. On petition for review,
the appellant argues that the administrative judge improperly denied her a
hearing. She also challenges the administrative judge’s findings concerning the
agency’s assertion that it could not find work she could perform within her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
medical restrictions.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.3 Title 5 of the Code of
2 In the initial decision, the administrative judge cited Latham v. U.S. Postal Service ,
117 M.S.P.R. 400 (2012), in describing the appellant’s burden of proof under 5 C.F.R.
§ 353.301(d). Initial Appeal File, Tab 12, Initial Decision at 4. However, the Board
issued a regulation, effective March 30, 2015, that adopted a nonfrivolous standard for
establishing jurisdiction over restoration appeals. Kingsley v. U.S. Postal Service ,
123 M.S.P.R. 365, ¶ 10 (2016); 5 C.F.R. § 1201.57(a)(4), (b). Because the
administrative judge correctly found that the appellant failed to make nonfrivolous
allegations sufficient to establish jurisdiction over this appeal and earn a hearing on her
restoration claim, any error in setting forth the correct burden was of no consequence,
and we find no merit to the appellant’s claim that she was entitled to a hearing.
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). Additionally, the Board
subsequently has overruled Latham and its progeny, finding that an agency’s failure to
comply with self-imposed obligations, such as those set forth in the agency’s Employee
and Labor Relations Manual, cannot itself constitute a violation of 5 C.F.R.
§ 353.301(d) such that a resulting denial of restoration would be rendered arbitrary and
capricious for purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304(c).
Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20. Nevertheless, because the
appellant in this appeal did not challenge the agency’s denial of her restoration on the
basis of any such agency -specific rules, the Board’s decision in Cronin does not change
the result here.
3 With her petition for review, the appellant provides documentation concerning work
schedules for alleged comparators and agency regulations regarding restoration.
Petition for Review File, Tab 1 at 9-16. Under 5 C.F.R. § 1201.115, 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. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).
The appellant’s failure to address whether the documents were available before the
close of the record, despite her due diligence, precludes the Board’s consideration of
these documents on review. Id. 2
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 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 | Patel_Smita_A_CH-0353-18-0057-I-1_Final_Order.pdf | 2024-02-06 | SMITA A. PATEL v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0353-18-0057-I-1, February 6, 2024 | CH-0353-18-0057-I-1 | NP |
2,416 | https://www.mspb.gov/decisions/nonprecedential/Paschal_Alesya_M_AT-0752-18-0083-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALESYA M. PASCHAL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-18-0083-I-1
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
lesya M. Paschal , Madison, Alabama, pro se.
Kathryn R. Shelton , Redstone Arsenal, Alabama, for the agency.
Daniel Dougherty , Colorado Springs, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for failure to state a claim. 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 dismiss the appeal for lack of jurisdiction instead of for failure to
state a claim, we AFFIRM the initial decision.
BACKGROUND
On July 10, 2016, the agency imposed the appellant’s indefinite suspension
pending final adjudication of the interim suspension of her access to classified
information.2 Initial Appeal File (IAF), Tab 1 at 7. On July 11, 2017, the
Department of Defense Consolidated Adjudications Facility favorably adjudicated
her eligibility for a Top Secret Security Clearance and her access to classified
information was restored. IAF, Tab 4 at 24, 29. Accordingly, the agency
returned her to duty, effective July 11, 2017. Id. at 26.
The appellant filed the instant appeal challenging the agency’s failure to
provide her with back pay for the period of the indefinite suspension. IAF, Tab 1.
She asserted discrimination based on sex and disability and retaliation for equal
employment opportunity and whistleblowing activity. Id. at 5. Without holding
2 The appellant filed a Board appeal challenging the indefinite suspension. Paschal v.
Department of the Army , MSPB Docket No. AT-0752-16-0740-I-1. The administrative
judge issued an initial decision that sustained the indefinite suspension and, after
considering the appellant’s petition for review, the Board affirmed the initial decision.
Paschal v. Department of the Army , MSPB Docket No. AT-0752-16-0740-I-1, Final
Order (Feb. 5. 2024); Paschal v. Department of the Army , MSPB Docket No. AT-0752-
16-0740-I-1, Initial Decision (Dec. 5, 2016).2
the appellant’s requested hearing, the administrative judge found that the Board
had jurisdiction over the appeal but dismissed it for failure to state a claim upon
which relief could be granted. IAF, Tab 14, Initial Decision (ID) at 2-4.
Specifically, he found jurisdiction because there are situations when the
occurrence of a condition subsequent, such as the resolution of the criminal
charges upon which an indefinite suspension was based, could give rise to an
appealable adverse action, and because the appellant asserted that she suffered an
appealable reduction in pay under 5 U.S.C. § 7512 when the agency did not give
her back pay. ID at 2-3. He found, however, that the restoration of the
appellant’s clearance was not a condition subsequent that entitled her to back pay
and thus it was appropriate to dismiss the appeal for failure to state a claim upon
which relief could be granted. ID at 3. Further, the administrative judge stated
that, because he dismissed the appeal for failure to state a claim upon which relief
could be granted, the appellant’s claims regarding discrimination did not affect
the outcome of the case. Id.
The appellant has filed a petition for review, the agency has responded in
opposition, and the appellant has replied. Petition for Review (PFR) File,
Tabs 1, 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant reasserts her claim that she is entitled to back pay
during the period of the indefinite suspension and her claims of disparate
treatment based on sex and retaliation for whistleblowing activities.3 PFR File,
Tab 1 at 4-7. She also asserts that the appellant in Rogers v. Department of
Defense, MSPB Docket No. AT-3443-13-3415-I-1, Final Order (Apr. 25, 2014),
3 To the extent that the appellant is attempting to challenge her indefinite suspension by
stating that it was initiated on the basis of mere allegations from the agency, we find
that she is barred from doing so under the doctrine of res judicata because we already
issued a valid, final judgment on the merits of this action. PFR File, Tab 1 at 6; see
Hicks v. U.S. Postal Service , 114 M.S.P.R. 232, ¶ 11 (2010).3
was paid during his indefinite suspension.4 Id. at 7. As described below, we find
that the appellant has failed to nonfrivolously allege that the Board has
jurisdiction over her claim for back pay.5 Thus, it was not proper for the
administrative judge to dismiss the appeal for failure to state a claim upon which
relief can be granted. See Alford v. Department of Defense , 113 M.S.P.R. 263,
¶ 11 (2010) (describing that an appeal that is already within the Board’s
jurisdiction can be dismissed for failure to state a claim upon which relief can be
granted), aff’d, 407 F. App’x 458 (Fed. Cir. 2011).
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). A request for back pay is not
listed among those matters and it does not create an independent basis for Board
jurisdiction. 5 C.F.R. § 1201.3; see Bosley v. Merit Systems Protection Board ,
162 F.3d 665, 667-68 (Fed. Cir. 1998) (stating that, if the Board does not
otherwise have jurisdiction over an appeal, the Back Pay Act does not confer
jurisdiction). Accordingly, we find that the Board lacks jurisdiction over her
claim for back pay absent an otherwise appealable action. Further, the Board
4 In Rogers, the appellant filed an appeal challenging his placement in a paid
administrative leave status, which the administrative judge dismissed for lack of
jurisdiction. Rogers v. Department of Defense , MSPB Docket No. AT-3443-13-3415-
I-1, Initial Decision (Nov. 5, 2013). On review in that case, the appellant stated that he
had since been indefinitely suspended without pay after his security clearance was
suspended and thus the Board forwarded his petition for review for processing as a new
appeal of the indefinite suspension. Rogers v. Department of Defense , MSPB Docket
No. AT-3443-13-3415-I-1, Final Order (Apr. 25, 2014); Rogers v. Department of
Defense, MSPB Docket No. AT-3443-13-3415-I-1, PFR File, Tab 1 at 3. We fail to see
how the agency’s decision in Rogers to place the appellant in a paid leave status prior to
suspending him affects the outcome in this case.
5 An appellant bears the burden of proving jurisdiction by a preponderance of the
evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A); see Barrand v. Department of Veterans
Affairs, 112 M.S.P.R. 210, ¶ 8, aff’d, 370 F. App’x 85 (Fed. Cir. 2009). However, an
appellant is entitled to a jurisdictional hearing if she makes a nonfrivolous allegation of
Board jurisdiction, i.e., an allegation of fact that, if proven, could establish a prima
facie case that the Board has jurisdiction over the matter at issue. 5 C.F.R. § 1201.4(s);
see Barrand, 112 M.S.P.R. 210, ¶ 8.4
lacks jurisdiction over her claim as a reduction in pay because she has not alleged
that her rate of pay was actually reduced once she was reinstated. IAF, Tab 4
at 26; see Chaney v. Veterans Administration , 906 F.2d 697, 698 (Fed. Cir. 1990)
(stating that an appealable reduction in pay occurs only when there is an
ascertainable lowering of an employee’s pay at the time of the action).
The appellant’s request for back pay here could be construed as a request
for compliance in Paschal v. Department of the Army , MSPB Docket No. AT-
0752-16-0740-I-1. Because of the lack of quorum, however, her petition for
review in that appeal was pending before the Board when she filed the present
appeal and a petition for enforcement therefore was not docketed. Nevertheless,
even if this appeal had been docketed as a petition for enforcement, the appellant
is not entitled to receive back pay because the Board affirmed the indefinite
suspension. See Biggers v. Department of the Navy , 745 F.3d 1360, 1362-63
(Fed. Cir. 2014) (finding that the appellant was not entitled to back pay when the
agency indefinitely suspended him pending a decision regarding his security
clearance and later returned him to duty after it was determined that he was
eligible for the clearance).
Finally, absent an otherwise appealable action, the Board lacks jurisdiction
over the appellant’s claims of retaliation and discrimination. See Winns v. U.S.
Postal Service, 124 M.S.P.R. 113, ¶ 19 (2017), aff’d sub nom. Williams v. Merit
Systems Protection Board , 892 F.3d 1156 (Fed. Cir. 2018).
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
6 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.5
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. 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.
(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 the7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of8
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. 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 | Paschal_Alesya_M_AT-0752-18-0083-I-1__Final_Order.pdf | 2024-02-06 | ALESYA M. PASCHAL v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-18-0083-I-1, February 6, 2024 | AT-0752-18-0083-I-1 | NP |
2,417 | https://www.mspb.gov/decisions/nonprecedential/Nelson_Elizabeth_H_PH-0843-19-0134-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH H. NELSON, (F/K/A
GALIK),
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0843-19-0134-I-1
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
icholas J. DuBois , Esquire, Vernon, New Jersey, for the appellant.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management denying her
application for a former spouse survivor annuity under the Federal Employees’
Retirement System. Among other things, she challenges 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 conclusion that, because she remarried prior to age 55, she does not meet
the statutory criterion for the retirement benefits she seeks, and the Government
could not provide her with monetary benefits in this situation based on the
equitable considerations she advanced. 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 practices described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 | Nelson_Elizabeth_H_PH-0843-19-0134-I-1 Final Order.pdf | 2024-02-06 | null | PH-0843-19-0134-I-1 | NP |
2,418 | https://www.mspb.gov/decisions/nonprecedential/Lawhorn_Anthony_L_DC-315H-18-0375-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY L. LAWHORN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-315H-18-0375-I-1
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
eil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Mary Kate DeMane , James M. Metcalfe , Esquire, and William Stoddard ,
Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. He argues
that the administrative judge erred in finding that the agency removed him for
post-appointment reasons. Petition for Review (PFR) File, Tab 1 at 5. He also
asserts that he did not make a false statement on the Declaration for Federal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Employment Optional Form 306 that he had not been fired in the last 5 years
because it was true and correct to the best of his knowledge, and his prior 2015
removal was in error. Id. at 8. He further argues that the administrative judge
misapplied Younies v. Merit Systems Protection Board , 662 F.3d 1215 (Fed. Cir.
2011), and that Board precedent, including LeMaster v. Department of Veterans
Affairs, 123 M.S.P.R. 453 (2016), supports finding that he made a nonfrivolous
allegation that he was terminated at least in part for pre -appointment reasons and
thus entitled to Board review of whether the agency followed the procedures set
forth in 5 C.F.R. § 315.805. PFR File, Tab 1 at 6-8; 5 C.F.R. § 315.806(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Lawhorn_Anthony_L_DC-315H-18-0375-I-1__Final_Order.pdf | 2024-02-06 | ANTHONY L. LAWHORN v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-315H-18-0375-I-1, February 6, 2024 | DC-315H-18-0375-I-1 | NP |
2,419 | https://www.mspb.gov/decisions/nonprecedential/Danishanko_Michael_SF-0752-18-0093-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL DANISHANKO,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-18-0093-I-1
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Kim , Atlanta, Georgia, for the appellant.
Hyacinth M. Clarke and Joshua N. Rose , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, the appellant argues that the
administrative judge erred in sustaining the charges and that the removal penalty
is unreasonable. 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:
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 | Danishanko_Michael_SF-0752-18-0093-I-1__Final_Order.pdf | 2024-02-06 | MICHAEL DANISHANKO v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-18-0093-I-1, February 6, 2024 | SF-0752-18-0093-I-1 | NP |
2,420 | https://www.mspb.gov/decisions/nonprecedential/Gurule_Matthew_S_DE-1221-18-0158-W-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW S. GURULE,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DE-1221-18-0158-W-1
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
atthew S. Gurule , Las Cruces, New Mexico, pro se.
Nathan Mires , Kansas City, Missouri, for the agency.
Katherine Bolton , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant reasserts that the agency provided false or
improper information in connection with a Freedom of Information Act request he
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
filed after applying for a position. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review 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 | Gurule_Matthew_S_DE-1221-18-0158-W-1 Final Order.pdf | 2024-02-06 | MATTHEW S. GURULE v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-1221-18-0158-W-1, February 6, 2024 | DE-1221-18-0158-W-1 | NP |
2,421 | https://www.mspb.gov/decisions/nonprecedential/Woodley_Robert_F_DE-4324-18-0025-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT F. WOODLEY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-4324-18-0025-I-1
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
ohn M. Trujillo , Albuquerque, New Mexico, for the appellant.
Michael R. Tita , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994. On petition for review, the
appellant argues that the administrative judge should have but failed to apply U.S.
Postal Service Employee and Labor Relations Manual § 442.123b. He also
argues that the administrative judge erred in certain credibility determinations
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and abused his discretion by denying a motion to compel and allowing an
untimely filing by the agency. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Woodley_Robert_F_DE-4324-18-0025-I-1__Final_Order.pdf | 2024-02-06 | ROBERT F. WOODLEY v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-4324-18-0025-I-1, February 6, 2024 | DE-4324-18-0025-I-1 | NP |
2,422 | https://www.mspb.gov/decisions/nonprecedential/Silva_James_D_NY-0752-17-0209-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES D. SILVA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0752-17-0209-I-1
DATE: February 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
lan V. Edmunds , Esquire, and Brittany D. Honeycutt , Esquire, Ponte
Verde Beach, Florida, for the appellant.
Jane Yoon , Brooklyn, New York, for the agency.
Steven A. Snyder , Northport, New York, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to prosecute. For the reasons set forth
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown.2 5 C.F.R. § 1201.114(e), (g).
The petition for review was filed 113 days after the filing deadline. Initial
Appeal File, Tab 24, Initial Decision at 4; Petition for Review (PFR) File, Tab 1.
In his motion to waive the deadline, the appellant asserts that he was suffering
from specific health issues; however, he has offered no medical evidence or other
corroborating evidence in support of these health issues. PFR File, Tab 3; see
Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 & n.* (1998).
Additionally, the 113-day filing delay is significant. See Crook v. U.S. Postal
Service, 108 M.S.P.R. 553, ¶ 6 (finding a 1-month filing delay significant), aff’d
per curium, 301 F. App’x 982 (Fed. Cir. 2008). As such, the appellant has not
shown that he exercised due diligence or ordinary prudence under the particular
circumstances of the case and thus has not shown good cause for the delay in
filing. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
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.
2 On February 21, 2020, the appellant filed a motion to reopen the record, in which he
alleged that he previously had ineffective representation and was unable to adequately
prosecute his appeal pro se but has now secured new representation and will be able to
present his case. Petition for Review (PFR) File, Tab 8. The appellant has not
demonstrated that he has new and material evidence or legal argument that was not
readily available before the record closed, or how any such evidence is material to his
appeal. See 5 C.F.R. § 1201.114(a)(5), (k). We therefore DENY the appellant’s
motion. In light of this denial, we find it unnecessary to consider the agency’s untimely
response to the appellant’s motion. PFR File, Tab 12.
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.
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.
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.
I certify that the attached Document(s) was (were) sent as
indicated this day to each of the following:CERTIFICATE OF SERVICE
U.S. Mail James Silva
120 Riddle Street
Brentwood, New York 11717Appellant
U.S. Mail Steven Snyder
79 Middleville Road
Building 9, Room 220
Northport, New York 11768Agency Representative
Electronic Service Jane Yoon
Served on email address registered with MSPBAgency Representative
U.S. Mail Alan Edmunds
The Edmunds Law Firm
824 N. A1A Hwy, Suite 302
Ponte Vedra Beach, Florida 32082Private Attorney
U.S. Mail Brittany Honeycutt
The Edmunds Law Firm
822 N. Hwy A1A, Suite 310
Ponte Vedra Beach, Florida 32082Private Attorney
02/06/2024
Tawanda Williams
Paralegal Specialist(Date) | Silva_James_D_NY-0752-17-0209-I-1 Final Order.pdf | 2024-02-06 | JAMES D. SILVA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0752-17-0209-I-1, February 6, 2024 | NY-0752-17-0209-I-1 | NP |
2,423 | https://www.mspb.gov/decisions/nonprecedential/Cage_JethroDA-0831-22-0028-I-2_Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JETHRO CAGE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0831-22-0028-I-2
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
C
harlene Patterson , Esquire, Slidell, Louisiana, for the appellant.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which affirmed the decision of the Office of Personnel Management (OPM) that
the appellant was ineligible for an annuity under the Civil Service Retirement
System (CSRS) because he received a refund of his retirement contributions.
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).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant challenges the administrative judge’s conclusion that he
failed to prove by preponderant evidence that he did not receive a refund, arguing
various errors in her weighing of the evidence. Petition for Review (PFR) File,
Tab 1 at 8-13. We find no errors in the administrative judge’s application of law
and finding of this material fact. Refiled Appeal File (RAF), Tab 11, Initial
Decision; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997)
(declining to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987) (same).
The appellant also challenges the administrative judge’s denial of his
motion to subpoena OPM employees to testify as witnesses at the hearing.
PFR File, Tab 1 at 11-12; RAF, Tabs 6-8, Tab 11 at 11-12. The Board has
recognized an administrative judge’s wide discretion to control hearing2
proceedings, including the authority to exclude testimony she believes would be
irrelevant or immaterial. See Vaughn v. Department of the Treasury ,
119 M.S.P.R. 605, ¶ 12 (2013); 5 C.F.R. §§ 1201.41(b)(10), 1201.81(c). We find
the administrative judge did not abuse her discretion in finding that the proffered
testimony would not be probative with respect to the appellant’s burden of proof.
RAF, Tab 7 at 3-4.
Lastly, the appellant argues that OPM’s records retention policy deprived
him of his constitutionally protected property interest in his retirement
contributions without due process of law. PFR File, Tab 1 at 13. We decline to
consider this argument because the appellant has not shown due diligence in
raising it for the first time in his petition for review. See Hodges v. Office of
Personnel Management , 101 M.S.P.R. 212, ¶ 7 (2006); 5 C.F.R. § 1201.115(d).
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.3
about whether a particular forum is the appropriate one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Cage_JethroDA-0831-22-0028-I-2_Final Order.pdf | 2024-02-05 | JETHRO CAGE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0831-22-0028-I-2, February 5, 2024 | DA-0831-22-0028-I-2 | NP |
2,424 | https://www.mspb.gov/decisions/nonprecedential/Mason_David_R_AT-1221-12-0005-W-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID R. MASON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-1221-12-0005-W-3
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D
avid R. Mason , Gallatin, Tennessee, pro se.
Steven Lewengrub , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
granted his request for corrective action in this individual right of action (IRA)
appeal regarding a letter of reprimand and denied his request for corrective action
regarding a 4-month detail. 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 was employed by the agency as a Financial Specialist at the
Nashville International Airport (BNA Nashville), and his duties included “budget
formulation, execution, oversight[,] and management of travel and acquisitions
activity and monitoring and ensuring compliance of budget and financial
activities with all [agency] policies and guidelines.” Mason v. Department of
Homeland Security , AT-1221-12-0005-W-1, Initial Appeal File (IAF), Tab 6,
Subtabs 4k, 4m. On March 2, 2010, the appellant emailed his immediate
supervisor, the Assistant Federal Security Director (AFSD), to advise her that a
purchase request had been submitted to purchase books through the Barnes and
Noble website and that the terms and conditions of the website included an
indemnification clause that violated the Anti-Deficiency Act (ADA). IAF, Tab 6,
Subtab 4i at 7. The appellant’s email documenting his concern was forwarded to
the agency’s legal and finance officials. Id., Subtab 4h at 5-8. An agency
attorney responded and stated that he “would not interpose any legal objection to
access or use of these websites” for certain Government purchases. Id. at 6.
3
On March 8, 2010, the appellant emailed a number of agency officials an
expenditure report for BNA Nashville that included annotations of “ADA
violation” or “Hold for potential ADA violation” for several purchases, including
the Barnes and Noble purchase. IAF, Tab 6, Subtab 4j. The Federal Security
Director (FSD), the appellant’s second-line supervisor, replied to the appellant’s
email, noted that the budget and legal officials “substantially disagreed” with his
interpretation of an ADA violation, and questioned the accuracy of several of the
ADA annotations, especially for the Barnes and Noble purchase. Id., Subtab 4i
at 4. The FSD instructed the appellant to recall his expenditure report and to
resubmit a corrected copy. Id. The appellant responded to the FSD’s email. Id.
at 3. On March 9, 2010, the FSD directed the appellant to “ resubmit a correctly
annotated expenditure report through [his] AFSD [no later than close of business]
on Friday, March 12 .” Id. (emphasis in original).
On March 12, 2010, the appellant sent the FSD a lengthy email in which
he, among other things, requested clarification regarding whether he was being
directly ordered to resubmit a corrected report, and requested an extension of time
to file the corrected report. Id. at 1-2. The FSD denied the extension request. Id.
at 1. The appellant timely submitted a corrected expenditure report to the Acting
AFSD. Id. However, rather than deleting the references to ADA violations or
potential ADA violations in the corrected expenditure report, the appellant noted
that he had reported to the AFSD certain transactions as potential ADA
violations. Id. at 9-11, 14, 16. The Acting AFSD forwarded the corrected
expenditure report. Mason v. Department of Homeland Security , MSPB Docket
No. AT-1221-12-0005-W-3, Appeal File (W-3 AF), Tab 28, Exhibit B. On
March 15, 2010, the AFSD ordered the appellant to remove the references to the
ADA violations from the corrected expenditure report. IAF, Tab 6, Subtab 4h
at 1-2. The appellant complied with the AFSD’s order. Id., Subtab 4e at 2. On
April 14, 2010, the agency issued to the appellant a letter of reprimand (LOR) for
“failure to follow the instruction of [the] FSD [] to remove extraneous
4
annotations from the Nashville Expenditure Report by close of business, Friday[,]
March 12, 2010.” Id. at 1-3.
On January 14, 2011, the AFSD notified the appellant that he would be
detailed to the position of Program Analyst, from January 18, to April 17, 2011,
“[to] assist with analysis of data regarding the in-line baggage system.”2 IAF,
Tab 6, Subtab 4c. The notice advised the appellant that he still would encumber
his current position of record and his pay would remain unchanged, although the
detail would be documented in his Official Personnel File. Id. at 1.
The appellant filed this IRA appeal challenging the issuance of the LOR
and the imposition of his 4-month detail. IAF, Tab 1. The appeal was twice
dismissed without prejudice and refiled. IAF, Tab 17; Mason v. Department of
Homeland Security , MSPB Docket No. AT-1221-12-0005-W-2, Appeal File,
Tabs 1, 4; W-3 AF, Tab 1. The administrative judged determined that the Board
has jurisdiction over this IRA appeal, and he afforded the appellant a hearing on
the merits. W-3 AF, Tab 19 at 1-2, 5, Tab 29, Initial Decision (ID) at 1, 8-9. The
administrative judge found that the appellant made protected whistleblowing
disclosures in 2010 regarding potential ADA violations that were a contributing
factor in the agency’s decision to issue the LOR and to detail him to the Program
Analyst position.3 ID at 10-14. The administrative judge further found that the
2 The detail was extended to May 17, 2011. IAF, Tab 6, Subtab 4b at 1.
3 Relying on the Board’s decisions in Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285, ¶ 22 n.5 (2013), Day v. Department of Homeland Security ,
119 M.S.P.R. 589 (2013), and Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶¶ 18-25 (2011), the administrative judge also found that the
appellant established that his 2008 disclosures regarding a possible ADA violation and
2007 and 2008 disclosures regarding a $160 taxi fare incurred by another agency
employee were protected whistleblowing disclosures. ID at 11-12. However, the
administrative judge determined that the appellant did not prove the “timing” prong of
the knowledge/timing contributing factor test regarding the 2011 detail and he did not
establish that he exhausted his administrative remedy with OSC regarding his claim that
any 2007 or 2008 disclosures were a contributing factor in the agency’s decision to
issue the LOR. ID at 14 n.4. The appellant does not challenge these findings on
review, and we affirm them herein.
5
agency failed to prove by clear and convincing evidence that it would have issued
the 2010 LOR in the absence of the appellant’s disclosures, and thus, the
appellant was entitled to corrective action. ID at 14-21. However, the
administrative judge determined that the agency proved by clear and convincing
evidence that it would have detailed the appellant in the absence of his protected
disclosures; thus, he denied the appellant’s request for corrective action regarding
the detail. ID at 21-26.
The appellant has filed a petition for review and a supplement to his
petition, and the agency has filed a response. Petition for Review (PFR) File,
Tabs 1, 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant does not challenge the administrative judge’s
conclusion that he made protected whistleblowing disclosures in 2010 that were a
contributing factor in the agency’s decision to issue the LOR and to detail him to
the Program Analyst position. Nor has he challenged the administrative judge’s
finding that the agency failed to prove by clear and convincing evidence that it
would have issued the LOR absent his whistleblowing disclosures. The agency
has not filed a cross petition for review. Accordingly, we affirm these findings
herein. The only substantive issue before us is the administrative judge’s
determination that the agency proved by clear and convincing evidence that it
would have detailed the appellant absent his whistleblowing disclosures.
6
The agency has shown by clear and convincing evidence that it would have
detailed the appellant in the absence of his protected whistleblowing disclosures.
Under the law in effect at the time of the material events in this appeal,4
once an appellant has met the burden of showing that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing
factor in the agency’s decision to take or fail to take a personnel action, the
burden shifts to the agency to establish by clear and convincing evidence that it
would have taken the same action in the absence of the protected disclosure.
5 U.S.C. § 1221(e)(1)-(2); Mastrullo v. Department of Labor , 123 M.S.P.R. 110,
¶ 12 (2015). In determining whether the agency has met this burden, the Board
will consider all of the relevant factors, including the following (“ Carr factors”):
(1) The strength of the agency’s evidence in support of its action; (2) the
existence and strength of any motive to retaliate on the part of the agency
officials involved in the decision; and (3) any evidence that the agency takes
similar actions against employees who are not whistleblowers, but who are
otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d
1318, 1323 (Fed. Cir. 1999); Soto v. Department of Veterans Affairs , 2022 MSPB
6, ¶ 11.
Below, the administrative judge thoroughly analyzed the Carr factors in
accordance with Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed.
Cir. 2012). ID at 21-26. In pertinent part, he found that the agency had sound
reasons for detailing the appellant, including that the appellant had the best skill
set to analyze the relevant data and was detailed to the Program Analyst position
so that he could focus solely on those duties, rather than being assigned
additional duties along with his regular duties. ID at 21-24. The administrative
4 All of the relevant events occurred before the December 27, 2012 effective date of the
Whistleblower Protection Enhancement Act of 2012 (WPEA). Pub. L. No. 112-199,
§ 202, 126 Stat. 1465, 1476. Even if we analyzed the appellant’s claims under the
WPEA, a different outcome is not warranted. Moreover, we have reviewed the relevant
legislation enacted during the pendency of this appeal and have concluded that it does
not affect the outcome of the appeal.
7
judge found that there was a “fairly strong” motive to retaliate by the AFSD and
FSD. ID at 16-24. He also determined that the differences between the
appellant’s situation and proposed comparator employees detracted from their
probative weight, and he concluded that the agency took similar actions against
employees who did not make whistleblowing disclosures. ID at 24-25. Thus, he
concluded that the agency met its burden by clear and convincing evidence that it
would have detailed the appellant in the absence of his protected whistleblowing
disclosures. ID at 25-26.
The appellant raises numerous procedural and evidentiary arguments on
review, but he does not appear to assert any substantive challenge to the
administrative judge’s clear and convincing analysis concerning his detail.5
Based upon the administrative judge’s thorough analysis of the Carr factors in
this regard, we affirm his conclusion.
The appellant has shown no error in the administrative judge’s rulings on
procedural and other evidentiary matters.
On review, the appellant largely challenges the administrative judge’s
rulings on testimony, witnesses and discovery, and his decision to exclude certain
evidence. PFR File, Tab 1 at 4-11. For example, the appellant argues that the
administrative judge improperly denied his request for additional witnesses,
thereby denying him access to key evidence and testimony. Id. at 5-8. However,
an administrative judge has wide discretion under 5 C.F.R. § 1201.41(b)(8), (10)
to exclude witnesses when it has not been shown that their testimony would be
relevant, material, and nonrepetitious. Franco v. U.S. Postal Service ,
5 The appellant generally contends that the administrative judge’s citations to the
hearing testimony are inconsistent with his recollection of the hearing testimony, and he
asserts that he was unable to provide detailed arguments concerning the hearing
testimony because he did not receive the hearing compact discs that he had requested.
PFR File, Tab 1 at 4. Although the appellant asserts that he did not receive the hearing
compact discs prior to the filing deadline for his supplement to his petition, PFR File,
Tab 3 at 4, he did not request an extension of time to file an additional supplement. We
have thoroughly reviewed the record, including listening to the hearing testimony, and
we have found no merit to the appellant’s general claims of error.
8
27 M.S.P.R. 322, 325 (1985). In this case, the administrative judge approved
5 witnesses (including the appellant) to testify for both parties, an additional
7 witnesses to testify solely on the appellant’s behalf, and he disapproved an
additional 14 witnesses proffered by the appellant because he failed to establish
that their testimony would be relevant and/or not redundant. W-3 AF, Tab 19
at 4.
The appellant fails to identify any relevant testimony that was improperly
excluded. PFR File, Tab 1. For example, he argues that the testimony of several
witnesses was “evasive” when they stated that they “did not know” or “did not
remember” when questioned, and he asserts that other witnesses could have
“fill[ed] in those blanks,” id. at 6-8, but he does not specifically identify which
other witnesses could have testified and how their testimony would be relevant.
Instead, he appears to be arguing that the administrative judge denied his
witnesses erroneously assuming that the testimony of all of the witnesses would
be truthful, and thus, redundant. Id. at 6.
Although unclear, the appellant appears to identify two instances in which
the testimony of the FSD and AFSD was impeached. Id. at 6-8. We have
considered these instances, which appear to involve knowledge of unpaid invoices
or activity concerning invoices. Id. However, neither instance persuades us that
the administrative judge erred in his analysis of the Carr factors or otherwise
warrants a different outcome regarding the 2011 detail.
We have considered the appellant’s assertion that S.W. should have been
allowed to testify because he later became his FSD and was responsible for
eliminating his position in 2014 pursuant to a reduction in force (RIF). PFR File,
Tab 1 at 5-6. The record reflects that the administrative judge dismissed a stay
request concerning this action because the appellant failed to allege that he
exhausted his administrative procedures before OSC. Mason v. Department of
Homeland Security , MSPB Docket No. AT-1221-12-0005-S-2, Order on Stay
Request (May 2, 2014). Because the elimination of the appellant’s position as a
9
result of a RIF is not properly before the Board, and there is no suggestion that
S.W. was involved in the decision to detail the appellant in 2011, S.W.’s
testimony is not relevant to this appeal. We therefore find no error by the
administrative judge in excluding this witness.
We also have considered the appellant’s contention that the FSD testified
that he had discussed the appellant with S.W., the appellant made a “motion for
discovery to verify what information the witness had provided to [S.W.],” and the
administrative judge erroneously denied that motion. PFR File, Tab 1 at 5-6.
The Board will not reverse an administrative judge’s rulings on discovery matters
absent an abuse of discretion . Wagner v. Environmental Protection Agency ,
54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). For
the reasons described above, any such information provided to S.W. does not
appear relevant to the detail at issue in this appeal, and we discern no abuse of
discretion in the administrative judge’s ruling in this regard.
The appellant also appears to be challenging the administrative judge’s
dismissal of his request to stay the agency’s “denial of due process.” PFR File,
Tab 1 at 9-11. Although somewhat unclear, we believe that this argument refers
to a February 3, 2012 memorandum issued to him by the FSD, which ordered him
to “vet any accusations of [misconduct] or poor management of Government
resources through [his] supervisory chain” prior to raising such accusations to the
agency’s Office of Investigation. IAF, Tab 14 at 5-7. The appellant seems to
allege that the memorandum effectively denied him due process by intimidating
and restricting the testimony of potential witnesses, and he notes that he filed a
stay request regarding this memorandum, which the administrative judge denied.
PFR File, Tab 1 at 9; IAF, Tabs 14, 16. This argument is unavailing.
An appellant may not challenge an administrative judge’s order on a stay
request under the whistleblower protection statutes through the petition for
review process; a request for an interlocutory appeal is the only option.
McCarthy v. International Boundary and Water Commission , 116 M.S.P.R. 594,
10
¶ 14 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). However, once the
administrative judge denies a request for certification of an interlocutory appeal,
the party that sought certification may raise the matter at issue in a petition for
review filed after the initial decision is issued. Id.; 5 C.F.R. § 1201.93(b). Here,
the administrative judge denied the appellant’s request for a stay, but the
appellant did not submit a request for an interlocutory appeal of that decision.
Therefore, the appellant is barred from challenging on review the administrative
judge’s denial of his stay request. McCarthy, 116 M.S.P.R. 594, ¶ 14.
Finally, the appellant includes the following documentation for the first
time on review: (1) Congressional documents relating to a May 2016 House
Oversight Committee hearing on “Examining Management Practices and
Misconduct at [the Transportation and Security Administration]”; and (2) a
February 29, 2016 Human Capital Advisory Memorandum, which notified agency
officials that all directed (involuntary) reassignments were suspended and that
approval from the Office of Human Capital would be required prior to directing a
reassignment. PFR File, Tab 1 at 11-12, 14-15. 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 despite the
party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214
(1980). Further, the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision . Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980).
Even if we assume for purposes of our analysis that this evidence is “new,”
a different outcome is not warranted. The appellant appears to be arguing that
this new evidence is material because if a stay had been granted, his detail may
have been precluded by the Human Capital Advisory Memorandum. PFR File,
Tab 1 at 12. However, as noted above, the appellant was only temporarily
detailed to the Program Analyst position in 2011 and he continued to encumber
11
his permanent position of Financial Specialist. In contrast, a reassignment, which
appears to be the focus of the 2016 Memorandum, is “a change of an employee,
while serving continuously within the same agency, from one position to another
without promotion or demotion.” 5 C.F.R. § 210.102(b)(12). Because the
Memorandum was issued several years after the relevant events transpired, and
the appellant was temporarily detailed and not reassigned, we find that the
documents submitted for a first time on review are not material to this case and
do not warrant a different outcome. Russo, 3 M.S.P.R. at 349. Accordingly, we
find no basis upon which to disturb the initial decision.
ORDER
We ORDER the agency to cancel the April 14, 2010 letter of reprimand and
to eliminate all references to the reprimand from the appellant’s personnel
records. 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 further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
12
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.204. If you believe you
meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
13
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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).
6 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.
14
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
15
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
16
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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.
17
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. | Mason_David_R_AT-1221-12-0005-W-3_Final_Order.pdf | 2024-02-05 | DAVID R. MASON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-1221-12-0005-W-3, February 5, 2024 | AT-1221-12-0005-W-3 | NP |
2,425 | https://www.mspb.gov/decisions/nonprecedential/Iriata_Tokunbo_I_DC-1221-18-0240-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TOKUNBO ISIBHAKHOMEN
IRIATA,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-18-0240-W-1
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aslan Soobzokov , Esquire, Clifton, New Jersey, for the appellant.
Whitney Krause , Esquire, Chantilly, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action appeal as untimely filed. On petition for
review, the appellant challenges the quality of the investigation conducted by the
Office of Special Counsel (OSC), argues that, even though he provided his
correct address, OSC improperly mailed documents to him at the wrong address,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
and asserts that he originally filed his appeal before the deadline but was told it
was on the incorrect form. Petition for Review (PFR) File, Tab 2 at 1. He also
has attached documents that are in the record below or, even if not in the record,
were created before the record closed below. PFR File, Tab 1 at 5-74, Tab 2
at 73.
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
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
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.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 | Iriata_Tokunbo_I_DC-1221-18-0240-W-1_Final_Order.pdf | 2024-02-05 | TOKUNBO ISIBHAKHOMEN IRIATA v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-18-0240-W-1, February 5, 2024 | DC-1221-18-0240-W-1 | NP |
2,426 | https://www.mspb.gov/decisions/nonprecedential/Gard_Bradley_D_AT-0845-18-0059-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRADLEY D. GARD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-18-0059-I-1
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
B
radley D. Gard , Palm Coast, Florida, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed as modified the reconsideration decision of the Office of Personnel
Management (OPM) finding that he had been overpaid annuity benefits under the
Federal Employees’ Retirement System and that he did not qualify for a waiver of
the overpayment. On petition for review, the appellant argues that he is entitled
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
to a waiver of the overpayment because, due to his back surgery and pain
medications, he was not aware that he should have set aside his Social Security
benefits. Petition for Review File, Tab 1. He also reiterates that he is
experiencing financial hardship and requests further adjustment of the payment
schedule set by the administrative judge. Id. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).2
2 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child, or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103, ¶ 13 (2016). 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 | Gard_Bradley_D_AT-0845-18-0059-I-1_Final_Order.pdf | 2024-02-05 | BRADLEY D. GARD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-18-0059-I-1, February 5, 2024 | AT-0845-18-0059-I-1 | NP |
2,427 | https://www.mspb.gov/decisions/nonprecedential/Paschal_Alesya_M_AT-0752-16-0498-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALESYA M. PASCHAL,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0752-16-0498-I-1
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
tuart A. Miller , Esquire, Atlanta, Georgia, for the appellant.
Daniel Dougherty , Colorado Springs, Colorado, for the agency.
Kathryn R. Shelton , Esquire, Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her 30-day suspension based on charges of discourtesy towards a
supervisory official, lack of candor (inaccurate statements), and discourtesy
towards a management official. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
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 MODIFIED to
find that the agency did not prove its third charge, and with regard to the analysis
of the appellant’s claim of retaliation for equal employment opportunity (EEO)
activity, we AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as a General Engineer. Initial Appeal File
(IAF), Tab 12 at 227. The agency proposed to suspend her for 30 days on the
basis of the following charges: (1) discourtesy towards a supervisory official;
(2) lack of candor (inaccurate statements); and (3) discourtesy towards a
management official. IAF, Tab 11 at 82-85. The appellant responded orally and
in writing to the proposal. Id. at 9-10, 14-19. The agency sustained the charges
and imposed the suspension. IAF, Tab 12 at 229-35. The appellant filed the
instant Board appeal, requested a hearing, and asserted affirmative defenses of
sex discrimination and retaliation for EEO activity. IAF, Tabs 1, 25. After
holding the appellant’s requested hearing, the administrative judge issued an
initial decision that sustained the charges, found that the appellant failed to prove
her affirmative defenses, and determined that a 30-day suspension was a
3
reasonable penalty for the sustained misconduct. Hearing Compact Disc (HCD);
IAF, Tab 32, Initial Decision (ID) at 2-17.
The appellant has filed a petition for review, challenging, among other
things, the administrative judge’s credibility determinations and analysis of her
affirmative defenses, and arguing that a 30-day suspension was not a reasonable
penalty.2 Petition for Review (PFR) File, Tab 1. The agency has responded to
the petition for review, and the appellant has filed a reply to the agency’s
response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
There is no basis to disturb the administrative judge’s findings sustaining the
agency’s first charge.
In charge 1, discourtesy towards a supervisory official, the agency alleged
that, during a meeting with her first- and second-line supervisors and other
agency officials, the appellant, among other things, “repeated the same questions
multiple times,” “did not demonstrate any willingness to listen” to the second -line
supervisor, “became visibly agitated,” asked questions in a “sarcastic” and
“condescending” manner, apologized in a “child-like, parroting tone,” and
became “more agitated, more rude, and condescending,” at which time the
second-level supervisor terminated the meeting. IAF, Tab 11 at 82-83. The
2 The appellant argues, for the first time on review, that the agency did not conduct its
investigation in conformance with its own procedures. She also argues that the
statements used against her and relied upon by the administrative judge were not sworn
statements. PFR File, Tab 1 at 20-21. To the extent that the appellant is raising a
harmful error defense for the first time on review, we decline to consider it. See Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (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). To the extent that the appellant is arguing that the
administrative judge should not have considered these unsworn statements in sustaining
the charges, the Board has held that unsworn statements are admissible in Board
proceedings. See Scott v. Department of Justice , 69 M.S.P.R. 211, 228 (1995) (holding
that the fact that an appellant’s statement is unsworn may detract from its probative
value, but it should be considered admissible evidence), aff’d, 99 F.3d 1160 (Fed. Cir.
1996) (Table).
4
administrative judge credited the agency witnesses’ account of this meeting over
the appellant’s. He made demeanor-based credibility determinations, noted that
the agency witnesses’ testimony was consistent with the written statement of the
Deputy Director (who was present during the meeting), and found that the Deputy
Director was unbiased because he was not in the appellant’s supervisory chain
and the appellant’s actions had not been directed towards him. ID at 4-6; IAF,
Tab 13 at 20-22; see Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987) (setting forth factors for an administrative judge to consider in assessing
witness credibility and deciding which version of competing testimony to credit).
The administrative judge therefore sustained the charge. ID at 4-6.
On petition for review, the appellant disputes the administrative judge’s
credibility determinations. PFR File, Tab 1 at 5. However, 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. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) . We have considered the appellant’s
arguments, but we find that they do not provide an adequate basis to disturb the
administrative judge’s explicitly demeanor-based credibility determinations. The
nature of the appellant’s comments and questions and her refusal to engage in an
appropriate discussion with the supervisory officials at the meeting constituted
conduct that was rude and offensive, and therefore discourteous. See Walker v.
Department of the Army , 102 M.S.P.R. 474, ¶¶ 4-7, 12-13 (2006) (finding that the
agency proved the charge of repeated acts of discourtesy to a supervisor because
the appellant was loud and rude during one telephone conversation and he was
extremely discourteous, loud, and continuously interrupting during a second
telephone conversation). For the reasons explained in the initial decision, we
agree that the agency proved charge 1. ID at 3-6.
5
There is no basis to disturb the administrative judge’s findings sustaining the
agency’s second charge.
In charge 2, lack of candor (inaccurate statements), the agency asserted that
after the meeting described in charge 1, the appellant sent an email to another
agency official in which she stated that her first-line supervisor filed a hostile
workplace complaint against her, and she forwarded that email to another agency
official, but the first-line supervisor had, in fact, not filed a hostile workplace
complaint against her. IAF, Tab 11 at 83. To prove a lack of candor charge, the
agency must prove that the employee gave incorrect or incomplete information
and that she did so knowingly. Fargnoli v. Department of Commerce ,
123 M.S.P.R. 330, ¶ 17 (2016).
The administrative judge considered the testimony of the first-line
supervisor that he never filed a complaint of any kind against the appellant, and
there was no documentary evidence that he filed such a complaint. ID at 7. The
administrative judge found it more likely than not that the appellant knowingly
included incorrect information in the email because, among other things, she had
a deceptive state of mind following the meeting discussed in charge 1; he was not
persuaded by the appellant’s testimony that she meant something other than a
formal complaint or that she was innocently mistaken. ID at 7-9. The
administrative judge further found that the appellant submitted inaccurate
information, which she knew was incorrect or did so with reckless disregard for
the truth, and therefore, the agency proved the lack of candor charge. ID at 8-9.
On review, the appellant contends that the deciding official stated that she
had not lacked candor, the Commanding General’s advice to her regarding her
communication skills was “not intended to be disciplinary,” and there was a
meeting in March 2008 that her first-line supervisor attended, in which the
appellant’s allegedly “belligerent” and “harassing” behavior was discussed. PFR
File, Tab 1 at 7. We have considered the appellant’s arguments, but we are not
persuaded. For instance, the deciding official advised the appellant that, due to
6
her poor communication skills and imprecise language, an ordinary person would
read her email to say that the first -line supervisor “had filed a hostile work
environment” complaint against her, and he noted that a coworker, and not her
first-line supervisor, drafted the memorandum that described the meeting about
workplace violence. IAF, Tab 11 at 71. The deciding official acknowledged that
the Commanding General did not accuse the appellant of misrepresenting facts,
but rather, he “provided concrete examples of how [she] can improve
communication.” Id. Moreover, there is no evidence that the first-line
supervisor, aside from being present during a March 2008 meeting in which
concerns about a difficult work environment were expressed, made any complaint
against the appellant for any reason. The initial decision reflects the
administrative judge’s conscientious consideration of the evidence, and contains
appropriate inferences, and reasoned conclusions and credibility findings. We
therefore discern no basis to disturb these findings. Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997).
The third charge is not sustained.
In charge 3, discourtesy towards a management official, the agency
asserted that during a meeting scheduled by the EEO Director to provide the
appellant with correspondence related to her EEO complaint, the appellant made
“unfounded accusations in a loud and in an agitated manner,” and became
“increasingly agitated” to the point where that the EEO Director had to conclude
the meeting. IAF, Tab 11 at 84. During the hearing, the EEO Director testified
consistent with the agency’s charge, explaining that the appellant repeatedly
accused her of doing nothing about her report that male employees brought nude
photos into the office, used a loud tone of voice, and became more agitated as the
meeting progressed. HCD (testimony of the EEO director). The administrative
judge credited the testimony of the EEO Director, finding that she was “calm,
7
deliberate, straightforward, and sincere” in her testimony. ID at 10. Therefore,
he sustained the agency’s third charge.3 ID at 11.
The Board has noted that “[d]isrespectful conduct as manifested by the use
of abusive language is unacceptable and not conducive to a stable working
atmosphere.” Wilson v. Department of Justice , 68 M.S.P.R. 303, 310 (1995).
However, the Board also considers the context in which the conduct occurred to
determine whether such behavior constitutes misconduct, and to determine
whether the penalty imposed is reasonable. Daigle v. Department of Veterans
Affairs, 84 M.S.P.R. 625, ¶ 6 (1999); see, e.g., Larry v. Department of Justice ,
76 M.S.P.R. 348, 358 (1997) (addressing comments made during psychotherapy);
Armstrong v. U.S. Postal Service , 28 M.S.P.R. 45, 47, 50 (1985) (addressing
comments made during a sexual harassment training session in which the
instructors encouraged comments and feedback); Farris v. U.S. Postal Service ,
14 M.S.P.R. 568, 574 (1983) (explaining that employees generally may not be
discharged for rude and impertinent conduct in the course of presenting
grievances). For instance, in Daigle, 84 M.S.P.R. 625, ¶¶ 2, 6, the Board found
that a disrespectful conduct charge could not be sustained because, among other
things, the appellant’s use of abusive language about a manager occurred during
an EEO counseling session. The Board explained that, because EEO counseling
sessions are a semi-confidential means through which employees complain about
their working environment, and complainants are likely to be emotionally
distraught when reporting perceived discrimination, it is reasonable to afford
employees more leeway regarding their conduct in such a context than they might
otherwise be afforded in other employment situations. Id., ¶ 6.
3 The appellant testified that she never made accusations towards the EEO Director, and
that she remained calm and respectful throughout the meeting. HCD (testimony of the
appellant). We defer to the administrative judge’s demeanor-based credibility findings,
and credit the version of events recounted by the EEO Director. Purifoy v. Department
of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016).
8
While this meeting between the appellant and the EEO Director was not an
EEO counseling session, it was also not a random encounter that occurred outside
of the EEO process. It was a meeting that was initiated by the EEO Director, and
pertained, at least tangentially, to the appellant’s reports to the EEO office. IAF,
Tab 11 at 84; HCD (testimony of the EEO Director). Therefore, we believe that
the same leeway that the Board applied in Daigle should be applied here.
Additionally, the agency did not charge the appellant with behavior that was
particularly extraordinary or egregious. IAF, Tab 11 at 84. For instance, there is
no allegation that the appellant threatened the EEO Director, or engaged in
physically intimidating or abusive behavior. Id. Therefore, although we do not
condone disrespectful or disruptive behavior, as the Board noted in Daigle,
84 M.S.P.R. 625, ¶ 6, it is reasonable to expect that complainants such as the
appellant, who have alleged that they are the target of discrimination, harassment,
or retaliation, may be more emotionally distraught in the EEO context than they
would be in a different environment. Accordingly, given the circumstances, we
do not find that conduct described in the third charge constitutes actionable
misconduct.4 See Gonzalez v. Department of Homeland Security , 114 M.S.P.R.
318, ¶ 10 (2010) (explaining that an agency charge that does not set forth
actionable conduct cannot be sustained).
The appellant did not prove her affirmative defenses of sex discrimination and
retaliation for prior EEO activity.
In the initial decision, the administrative judge determined that the
appellant did not prove her defenses of sex discrimination and retaliation for EEO
activity. He found that the appellant’s proffered comparators were not similarly
situated to her and concluded that she failed to prove that sex or EEO activity was
4 The agency’s third charge also raises a question regarding whether the agency charged
the appellant with misconduct for participating in the EEO process, which could violate
the participation clause of Title VII. However, the appellant has not raised this issue
as an affirmative defense. Therefore, because we do not sustain the third charge based
on other grounds, we decline to address the possibility of a violation of Title VII’s
participation clause.
9
a substantial or motivating factor in her suspension. ID at 14-17. On review, the
appellant challenges the administrative judge’s evaluation of the alleged
comparators related to her sex discrimination claim, and argues that her EEO
activity is the “only” explanation for the four disciplinary actions taken against
her and for her “crummy performance evaluations.” PFR File, Tab 1 at 18-22.
To prove an affirmative defense of sex discrimination or retaliation for
Title VII EEO activity, an appellant must show that the prohibited consideration
was at least a motivating factor in the action under appeal. Pridgen v. Office of
Management and Budget , 2022 MSPB, 31, ¶¶ 20-22. Regarding the appellant’s
sex discrimination claim, for the reasons explained in the initial decision, we
agree with the administrative judge that the appellant did not prove that sex was a
motivating factor in the agency’s decision to suspend her. ID at 13-15. Among
other things, the proffered comparators did not engage in misconduct similar to
the appellant’s. Id.
Regarding the appellant’s retaliation claim, the administrative judge
appears to have applied a standard that was something of a hybrid between the
framework for assessing claims of retaliation under Title VII, and the framework
set forth in Warren v. Department of the Army , 804 F.2d 654, 658 (Fed. Cir.
1986), for assessing retaliation for non-whistleblower, non-EEO activity,
protected under 5 U.S.C. § 2302(b)(9)(A)(ii). ID at 15-16. Nevertheless,
applying the correct analytical framework as set forth in Pridgen, 2022 MSPB 31,
¶¶ 20-22, 30, we agree with the administrative judge’s ultimate conclusion that
the appellant did not prove that her EEO activity was a motivating factor in her
suspension. ID at 16. The appellant did not present sufficient evidence to raise
an inference of retaliation.
A 30-day suspension is a reasonable penalty for the sustained misconduct.
We agree with the administrative judge that the agency established nexus.
ID at 11. Therefore, we consider the reasonableness of the agency’s penalty in
light of the partially sustained charges.
10
When, as here, the Board does not sustain all of the charges, it will
carefully consider whether the sustained misconduct merits the penalty imposed
by the agency. Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶ 17
(2014). The Board may mitigate the penalty imposed by the agency to the
maximum penalty that is reasonable in light of the sustained charges as long as
the agency has not indicated in either its final decision or in proceedings before
the Board that it desires that a lesser penalty be imposed for fewer charges. Id.
Because not all charges have been sustained, and because the deciding official did
not express whether he would have imposed a lesser penalty without the third
charge, the Board must apply the Douglas factors to determine the maximum
reasonable penalty for the sustained charges of misconduct. Id.
Considering the two sustained charges of misconduct, a 30-day suspension
is well within the bounds of reasonableness. It is well-established that the most
important factor in assessing the reasonableness of a penalty is the nature and
seriousness of the misconduct and its relation to the employee’s duties, position,
and responsibilities. Thomas v. Department of the Army , 2022 MSPB 35, ¶ 20.
Here, the appellant’s conduct was intentional and serious, as she continuously
disrupted a meeting with her first- and second-line supervisors, and then
immediately after doing so, sent an email mischaracterizing her supervisor’s
actions. IAF, Tab 11 at 82-83. Furthermore, the appellant has a prior
disciplinary record which establishes a history of behaving in a discourteous
manner, including a 2-day suspension for disrespectful behavior towards a
supervisor in 2010, a 5-day suspension for discourtesy towards a managerial
official in 2011, and a 12-day suspension for discourtesy towards a supervisory
official in 2012.5 Id. at 84. The appellant’s prior disciplinary action also serves
5 The appellant asserts that the agency should not have considered a previous lack of
candor (inaccurate statements) charge in another proposed suspension, because, among
other things, the agency dismissed it. PFR File, Tab 1 at 4, 12-13. Although it is true
that the agency did not sustain the prior lack of candor (inaccurate statements) charge,
IAF, Tab 21 at 71, we find no error, because the deciding official only considered the
previous lack of candor charge as evidence that the appellant was on notice that such
11
as evidence that she was on notice that this type of discourteous behavior
constituted misconduct.6 See Thomas, 2022 MSPB 35, ¶ 26 (finding that an
appellant’s prior discipline served as a general warning that his conduct was
inappropriate and constituted misconduct). Additionally, as the deciding official
testified, a 30-day suspension is consistent with the policy of progressive
discipline. HCD (testimony of the deciding official).
Finally, we have considered the fact that the decision letter did not identify
any mitigating factors, including that the appellant had received commendations
and initiated collaboration, she was recommended for a Senior Service
Fellowship, and she allegedly never had issues at work prior to reporting
inappropriate nude photographs in the workplace and allegedly being harassed by
her supervisor. IAF, Tab 12 at 232; PFR File, Tab 1 at 21. However, we find
that these mitigating factors do not outweigh the seriousness of the appellant’s
misconduct and her previous disciplinary history.7 Accordingly, we find that the
30-day suspension is a reasonable penalty for the sustained misconduct. See, e.g.,
Guzman-Muelling v. Social Security Administration , 91 M.S.P.R. 601, ¶¶ 2, 16-17
(2002) (finding that a suspension of 30 days was within the parameters of
reasonableness for discourteous and disruptive conduct, absence without leave for
behavior was unacceptable and could be subject to discipline. HCD (testimony of the
deciding official).
6 The appellant also asserts that agency policy only allows for the use of prior discipline
that occurred within the previous 3 years. PFR File, Tab 1 at 11-15. The appellant does
not identify on review any policy prohibiting the agency from considering prior
suspensions that are more than 3 years old. Even if such a policy exists, we discern
nothing improper about the deciding official considering prior discipline under the
notice factor as discussed herein.
7 On review, the appellant reasserts her argument that the agency treated her more
harshly than three other individuals who had committed similar misconduct. PFR File,
Tab 1 at 15-17. However, for the reasons explained in the initial decision, we agree
with the administrative judge that the appellant’s proffered comparators were not
similarly situated to her for purposes of a consistency of the penalty analysis. ID
at 13-14. See Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 13 (holding that the
universe of potential comparators “should be limited to those employees whose
misconduct and/or other circumstances closely resemble those of the appellant”).
12
1 hour, and providing poor public service, especially considering that the
appellant had been suspended previously for 3 days and 10 days, respectively, for
some of the same misconduct); Ally v. Department of the Navy , 58 M.S.P.R. 680,
682-83, 686-87 (1993) (upholding the appellant’s removal for disrespectful
conduct towards her supervisor for calling him an “ex-alcoholic” and “idiot”
when she had a prior suspension for similar misconduct). We have considered the
appellant’s remaining arguments on review, but a different outcome is
not warranted.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
8 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.
13
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
14
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:
15
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Paschal_Alesya_M_AT-0752-16-0498-I-1_Final_Order.pdf | 2024-02-05 | ALESYA M. PASCHAL v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-16-0498-I-1, February 5, 2024 | AT-0752-16-0498-I-1 | NP |
2,428 | https://www.mspb.gov/decisions/nonprecedential/Paschal_Alesya_M_AT-0752-16-0740-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALESYA M. PASCHAL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-16-0740-I-1
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
V
icki Fuller , Redstone Arsenal, Alabama, for the appellant.
Kathryn R. Shelton , Redstone Arsenal, Alabama, for the agency.
Daniel Dougherty , Colorado Spring, Colorado, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her indefinite suspension based upon the agency’s suspension of her
access to classified information and networked information technology systems.
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).
BACKGROUND
The appellant is employed as a General Engineer. Initial Appeal File
(IAF), Tab 8 at 21. Effective April 4, 2016, the appellant was suspended for 30
days based upon sustained charges of discourtesy towards a supervisory official,
lack of candor (inaccurate statements), and discourtesy towards a management
official.2 IAF, Tab 18 at 29. On April 11, 2016, the agency informed the
appellant that it suspended her access to classified information and networked
information technology systems because of the 30-day suspension. Id. at 27.
Subsequently, on May 3, 2016, the agency proposed to indefinitely suspend the
appellant because her access to classified information was a condition of her
General Engineer position, the agency suspended such access, and she was
therefore unable to satisfy a requirement of her position. Id. at 13. The appellant
presented oral and written replies to the proposed indefinite suspension. IAF,
Tab 12 at 5, 13-20. The agency imposed the indefinite suspension, effective
2 The Board sustained the 30-day suspension. Paschal v. Department of Defense , MSPB
Docket No. AT-0752-16-0498-I-1, Final Order (Feb. 5, 2024).2
July 10, 2016. IAF, Tab 9 at 66. The decision letter stated that the “indefinite
suspension will continue until the Central Adjudication Facility’s [CAF’s] final
determination regarding the suspension/revocation of [her] security clearance”
and “the agency is on notice that the security matter is resolved.” Id.
The appellant filed the instant Board appeal challenging the indefinite
suspension and requesting a hearing. IAF, Tab 1. After holding the requested
hearing, Hearing Transcript (HT), the administrative judge issued an initial
decision that sustained the indefinite suspension, IAF, Tab 33, Initial Decision
(ID). In pertinent part, the administrative judge found that the appellant’s
position required a security clearance, and her access to classified information
was suspended pending a final determination regarding her clearance. ID at 5.
He further found that the agency provided her with due process, did not commit
harmful error, and imposed a valid condition subsequent in the indefinite
suspension decision letter.3 ID at 5-9.
The appellant has filed a petition for review, the agency has responded in
opposition to her petition, and she has replied. Petition for Review (PFR) File,
Tabs 1-2, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
An indefinite suspension lasting more than 14 days is an adverse action
appealable to the Board under 5 U.S.C. § 7513(d). 5 U.S.C. § 7512(2); Palafox v.
Department of the Navy , 124 M.S.P.R. 54, ¶ 8 (2016). An agency may
indefinitely suspend an appellant when her access to classified information has
been suspended and she needs such access to perform her job.4 Palafox,
124 M.S.P.R. 54, ¶ 8. In such a case, the Board lacks the authority to review the
merits of the decision to suspend the employee’s access. Id. Instead, the Board
will only review whether (1) the appellant’s position required access to classified
3 The appellant does not challenge the administrative judge’s finding that the decision
letter contained a valid condition subsequent, ID at 9, and we discern no error with the
administrative judge’s decision in this regard. 3
information, (2) her access to classified information was suspended, and (3) she
was provided with the procedural protections specified in 5 U.S.C. § 7513.5 Id.
The Board also will consider whether the agency provided the appellant with
minimum due process in taking the indefinite suspension action and whether the
agency provided the procedural protections required under its own
regulations. Id.
The appellant asserts on review that the agency committed harmful error
because, among other things, the deciding official refused to consider certain
documents that she submitted in her reply. PFR File, Tab 1 at 5, 9, 11. Harmful
error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an agency error is
harmful only where the record shows that the procedural error was likely to have
4 Although not raised by the appellant on review, the administrative judge appeared to
use the terms “security clearance” and “access to classified information”
interchangeably in the initial decision. The Board has noted that the term “security
clearance” refers to a determination that a person is eligible for access to classified
information. Rogers v. Department of Defense , 122 M.S.P.R. 671, ¶ 2 n.1 (2015). The
issuance of a security clearance is distinct from the determination to grant access to
classified information, which is made solely on the basis of the individual’s need for
classified information in order to perform official duties. Id. Although clearance
determinations are within the purview of an authorized adjudicatory agency, such as the
CAF, access to classified information is granted by local command to cleared
individuals on a need-to-know basis. Id. In this matter, the deciding official testified
that when the agency locally suspended the appellant’s access to classified information,
the matter was “automatically referred” to the CAF, and her security clearance was
suspended indefinitely until the CAF adjudicated it. HT at 15 (testimony of the
deciding official). The administrative judge’s error in this regard is not prejudicial to
the appellant’s substantive rights and provides no basis for reversal of the initial
decision, Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984), because
the same analytical framework is utilized regardless of whether the adverse action is
based on the suspension of access to classified information or the denial, revocation, or
suspension of a security clearance. Compare Palafox , 124 M.S.P.R. 54, ¶ 8, with
Rogers, 122 M.S.P.R. 671, ¶ 5.
5 The statute at 5 U.S.C. § 7513(b) states that an employee against whom an action is
proposed is entitled to (1) at least 30 days’ advance written notice stating the specific
reasons for the proposed action, (2) a reasonable time to answer orally and in writing
and to furnish affidavits and other documentary evidence in support of the answer,
(3) the opportunity to be represented, and (4) a written decision and the specific reasons
that the action was taken at the earliest practicable date. 4
caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error. Stephen v. Department of the Air
Force, 47 M.S.P.R. 672, 681, 685 (1991); 5 C.F.R. § 1201.4(r). The appellant
has not persuaded us that the deciding official committed any error, let alone
harmful procedural error.
In the decision letter, the deciding official acknowledged that the appellant
provided him with an 85-page submission, which he said “appear[ed] to be
selected provisions that [she] may or may not have cut and pasted” from other
documents. IAF, Tab 9 at 66. The deciding official explained that because the
submitted documents were “not the original documents and are not in their
original format,” he did not consider them as “credible documentary evidence.”
Id. The deciding official also stated that the documents themselves were not
relevant because they addressed events that occurred from before June 2012,
several years before the relevant events in this matter. Id. The appellant has not
persuaded us that the deciding official had any obligation to credit her submission
under these circumstances. Even if we assumed for the purposes of our analysis
that the deciding official somehow erred in this regard, the appellant has not
proven how the deciding official would have reached a different conclusion in the
absence or cure of the error.
The appellant also appears to challenge the deciding official’s failure to
consider alternatives to an indefinite suspension without pay. PFR File, Tab 1
at 9. However, she has not identified any statute or regulation that requires the
agency to continue her in a pay status during the pendency of the adjudication of
her access to classified information. 5
The appellant also asserts that the agency treated comparator employees
differently.6 Id. at 5-11. It is unclear if the appellant’s claim arises in the context
of a claim of discrimination or retaliation for previous equal employment
opportunity (EEO) activity, or in the context of a claim that the agency or the
administrative judge improperly failed to consider the penalty factors set forth in
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981), in particular,
the consistency of the penalty with those imposed upon other employees for the
same or similar offenses. In either context, this argument is unavailing because
the Board does not consider claims of discrimination or retaliation or a challenge
to the Douglas penalty factors in an appeal of an indefinite suspension based
upon the suspension of access to classified materials.7 Helms v. Department of
the Army, 114 M.S.P.R. 447, ¶ 9 (2010), aff’d, 459 F. App’x 916 (Fed. Cir. 2011);
see Ryan v. Department of Homeland Security , 793 F.3d 1368, 1372-73 (Fed. Cir.
2015) (“[D]ecisions . . . considering or mentioning a Douglas mitigation analysis
6 The appellant contends that the agency failed to provide her with certain information
regarding comparator employees and the administrative judge would not allow the
comparators to testify. PFR File, Tab 1 at 10; IAF, Tab 31 at 2. The administrative
judge has wide discretion under 5 C.F.R. § 1201.41(b)(8), (10) to exclude witnesses
where it has not been shown that their testimony would be relevant, material, and
nonrepetitious. Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985). Moreover,
the appellant has not demonstrated any prejudice because, for the reasons described
herein, the Board does not have the authority to consider her claims of disparate
treatment. See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (stating
that a procedural error is of no legal consequence unless it is shown to have adversely
affected a party’s substantive rights).
7 In the initial decision, the administrative judge noted that the Board has declined to
consider the Douglas penalty factors in cases involving adverse actions based on
security clearance or eligibility determinations where an employee has not been
provided a substantive right to reassignment through statute or regulation. ID at 4
(citing Munoz v. Department of Homeland Security , 121 M.S.P.R. 483, ¶ 15 (2014)).
He further noted that the appellant identified no statute or regulation providing her with
a substantive right to reassignment to a position not requiring a security clearance or
access to classified information, and the deciding official testified that he was not aware
of any such requirement in agency regulations, but he nevertheless voluntarily sought to
find another position for the appellant that did not require access to classified
information. ID at 6, 8-9 & n.3. The appellant does not appear to specifically
challenge these findings on review, and we find no reason to disturb them.6
have involved penalties for misconduct rather than loss of a required qualification
for a position.”).
The appellant also contends that the administrative judge should not have
dismissed her appeal because she is a whistleblower, PFR File, Tab 1 at 4, but the
Board similarly lacks the authority to adjudicate such an affirmative defense in
this matter, see, e.g., Doe v. Department of Justice , 121 M.S.P.R. 596, ¶ 10 &
n.5 (2014).
The appellant further asserts that the administrative judge erred in applying
the factors for evaluating credibility as set forth in Hillen v. Department of the
Army, 35 M.S.P.R. 453 (1987), and erred in concluding that the deciding official
was not biased against her because he had been involved in her prior EEO and
whistleblower reprisal complaints. PFR File, Tab 1 at 8-9. In Hillen,
35 M.S.P.R. at 458, the Board set forth a nonexhaustive list of factors for
administrative judges to consider in assessing witness credibility, including a
witness’ bias or lack of bias. The administrative judge, who heard testimony
from the deciding official, found no evidence of actual bias, ID at 7-8, and his
credibility determinations must be deemed to be at least implicitly based upon
witness demeanor, Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4
(2009). Moreover, 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. Haebe
v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) . The appellant’s
general allegations on review do not provide a reason for disturbing the
administrative judge’s finding that the deciding official was not biased against
her. See, e.g., Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373
(Fed. Cir. 2016) (“ The [administrative judge’s] findings about Mr. Purifoy’s
propensity for rehabilitation are necessarily intertwined with issues of credibility7
and an analysis of his demeanor at trial, and they deserved deference from the
Board.”). Thus, this argument is without merit.
We have considered the appellant’s remaining arguments on review, but a
different outcome is not warranted. Accordingly, we affirm the initial decision.
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.
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).
8 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.8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on9
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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. 11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Paschal_Alesya_M_AT-0752-16-0740-I-1_Final_Order.pdf | 2024-02-05 | ALESYA M. PASCHAL v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-16-0740-I-1, February 5, 2024 | AT-0752-16-0740-I-1 | NP |
2,429 | https://www.mspb.gov/decisions/nonprecedential/McGhee_BenjaminSF-0831-18-0073-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN MCGHEE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
MARLENE J. MCGHEE
Intervenor.DOCKET NUMBER
SF-0831-18-0073-I-1
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
P
aul K. Fine , San Diego, California, for the appellant.
Sarah Wu , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On review, the appellant argues that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the administrative judge erred by finding that he failed to show that the Office of
Personnel Management improperly failed or refused to issue an appealable final
decision in his request for benefits. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | McGhee_BenjaminSF-0831-18-0073-I-1_Final_Order.pdf | 2024-02-05 | BENJAMIN MCGHEE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-18-0073-I-1, February 5, 2024 | SF-0831-18-0073-I-1 | NP |
2,430 | https://www.mspb.gov/decisions/nonprecedential/Thompson_ShayleAT-0752-16-0518-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAYLE THOMPSON,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
AT-0752-16-0518-I-1
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
hayle Thompson , Fredericksburg, Virginia, pro se.
Dionne Shy , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s 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
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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On April 6, 2014, the agency appointed the appellant to an intermittent
Food Inspector Slaughter position with the agency’s Food Safety and Inspection
Service in Gainesville, Georgia. Initial Appeal File (IAF), Tab 1 at 1, Tab 4
at 76. Effective April 20, 2016, the agency removed the appellant based on the
following charges: (1) neglect of duty (three specifications); and (2) discourteous
conduct (one specification). IAF, Tab 4 at 33-37, 40-42. The appellant filed a
Board appeal challenging her removal, and she requested a hearing. IAF, Tab 1
at 1-5. She raised the affirmative defenses of retaliation for equal employment
opportunity (EEO) activity and discrimination based on sex, race, and marital
status. Id. at 5. While the appeal was pending before the administrative judge,
the appellant withdrew her request for a hearing. IAF, Tab 17 at 4, Tab 22 at 1.
Based on the written record, the administrative judge issued an initial
decision affirming the agency’s removal action. IAF, Tab 50, Initial Decision
(ID) at 1, 11. Specifically, she sustained both charges, found a nexus between the
sustained misconduct and the efficiency of the service, and determined that the
penalty of removal was within the bounds of reasonableness. ID at 3-9. She
further found that the appellant failed to prove her affirmative defenses of
discrimination based on race, sex, or marital status. ID at 9-11.
3
The appellant has filed a petition for review challenging the initial
decision, along with supplemental documentation. Petition for Review (PFR)
File, Tabs 1-6.2 The agency has filed a response opposing her petition. PFR File,
Tab 8.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the neglect-of-duty charge.
The agency based the three specifications of its neglect-of-duty charge on
the following alleged misconduct: on September 14, on October 7, and on or
around December 3, 2015, the appellant left the workplace before the end of her
assigned tour of duty without supervisory approval . IAF, Tab 4 at 40-41. The
appellant testified during her deposition that she left work early on those dates,
and that she believed she had supervisory approval to leave work early on two of
those dates, because her first-line supervisor told her that he could not stop her
from leaving.3 IAF, Tab 26 at 36-46. The first-line supervisor declared, under
penalty of perjury, that he did not give her permission to leave work early on
those dates. Id. at 19. We agree with the administrative judge’s finding that the
agency proved by preponderant evidence all three specifications of the neglect -of-
duty charge. ID at 4-5; see McIntire v. Federal Emergency Management Agency ,
55 M.S.P.R. 578, 583-84 (1992) (analyzing the essence, or single core element, of
the agency’s neglect-of-duty charge).
In her petition for review, the appellant argues that the administrative judge
erroneously relied on the first-line supervisor’s declaration. PFR File, Tab 1
at 5-7; ID at 2-4. A declaration, subscribed as true under penalty of perjury, if
2 The appellant’s documentation submitted on review is part of the record below, and
thus, does not constitute new evidence on which grounds a petition for review may be
granted. PFR File, Tab 1 at 11-18, Tabs 2-6; see Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980) (finding that evidence that was already a part of the record
was not new).
3 The appellant stated during her deposition that she did not receive supervisory
approval to leave work early on December 3, 2015. IAF, Tab 26 at 47-48, 53.
4
uncontested, proves the facts it asserts. Tram v. U.S. Postal Service ,
120 M.S.P.R. 208, ¶ 8 (2013). The appellant asserts that her first-line
supervisor’s declaration is not credible because he wants to cover up his own
misconduct and to assure that she is terminated, and she has submitted as
evidence of his misconduct a newspaper article about a safety issue at the plant
and the private company’s unwillingness to allow the Occupational Safety and
Health Administration to conduct a general inspection . PFR File, Tab 1 at 5-7,
11-13. However, she does not contest the substance of his declaration regarding
her duties as a “line inspector” and the effect on the workplace when a line
inspector leaves the inspection line, as referenced in the initial decision. ID
at 2-4; IAF, Tab 26 at 17-19. Moreover, we find that the appellant has not
presented any evidence to contradict the first-line supervisor’s declaration that he
did not give her permission to leave work early. IAF, Tab 26 at 19; see Tram,
120 M.S.P.R. 208, ¶ 8 (finding that the appellant did not present credible
evidence contradicting the declarations in question) . We find that the
administrative judge properly relied on the first-line supervisor’s declaration.
The appellant further asserts on review that the administrative judge
erroneously relied on the agency’s investigations into her workplace violence
reports in finding that her claim that she left work early because she felt
threatened was not supported by the record evidence. PFR File, Tab 1 at 6; ID
at 5. For the reasons described above, we find that the administrative judge’s
reliance on the agency’s investigations was not necessary to sustain the
neglect-of-duty charge. We further find that any error by the administrative judge
in considering the agency’s investigations in sustaining the charge did not
prejudice the appellant’s substantive rights. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (observing that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision). The administrative judge properly addressed the appellant’s
claim that she left work early because she feared for her safety in assessing the
5
reasonableness of the penalty. ID at 8-9; see Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305-06 (1981) (finding that unusual job tensions and harassment
may be relevant as mitigating factors in assessing the appropriateness of a
penalty); see also Peters v. Federal Deposit Insurance Corporation , 23 M.S.P.R.
526, 528-29 (1984) (considering the fact that the appellant worked in a “pressure
cooker” environment as a mitigating factor in assessing the reasonableness of the
removal penalty), aff’d, 770 F.2d 182 (Fed. Cir. 1985) (Table).
The administrative judge properly sustained the discourteous conduct charge.
The agency’s discourteous conduct charge is based on its allegation that,
during a telephone conversation between the appellant and her acting supervisor
on or around December 3, 2015, the appellant questioned the acting supervisor’s
authority and failed to provide information regarding her workplace issue and
reason for wanting to leave work early. IAF, Tab 4 at 41-42. The appellant
testified during her deposition that, during the approximately 8-minute telephone
conversation, her acting supervisor told her that she was not allowed to leave
work early unless she was sick, and she told her acting supervisor, “I don’t know
who you are,” “You don’t know what is going on here,” and “They do not control
their employees.” IAF, Tab 26 at 50-56, 58-59. The appellant further stated
during her deposition that, in response to her acting supervisor’s questions, she
said “It would take me too long to explain all of that.” Id. at 57-58. Based on the
appellant’s deposition testimony, we agree with the administrative judge’s finding
that the agency proved the discourteous conduct charge by preponderant
evidence. ID at 5-7; see Walker v. Department of the Army , 102 M.S.P.R. 474,
¶¶ 11-13 (2006) (finding that the agency proved the charge of repeated acts of
discourtesy when, during telephone conversations between the appellant and his
supervisor, he was loud and rude, became angry, raised his voice, and interrupted
and hung up on his supervisor). The appellant’s general disagreement on review
with the administrative judge’s finding, without more, does not provide a reason
to disturb it. PFR File, Tab 1 at 5.
6
The appellant has failed to prove her affirmative defenses of discrimination based
on sex, race, and marital status, or retaliation for prior EEO activity.
Pursuant to 5 U.S.C. § 7701(c)(2)(B), an agency’s decision may not be
sustained if an appellant proves by preponderant evidence that it was based on
any prohibited personnel practice described in 5 U.S.C. § 2302(b). See 5 C.F.R.
§ 1201.56(b)(2)(i)(C), (c)(2). When an appellant asserts an affirmative defense of
discrimination or retaliation for EEO activity under Title VII of the Civil Rights
Act of 1964, the Board first will inquire whether she has shown by preponderant
evidence that the prohibited consideration was a motivating factor in the
contested personnel action. See Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 21. Such a showing is sufficient to establish that the agency
violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel
practice under 5 U.S.C. § 2302(b)(1). Id.
Although not covered by Title VII, d iscrimination on the basis of marital
status is a prohibited personnel practice under 5 U.S.C. § 2302(b)(1)(E). The
Board has analyzed such claims under the legal framework applicable to Title VII
claims. Craighead v. Department of Agriculture , 6 M.S.P.R. 159, 162 (1981); see
Qatsha v. Department of Defense , 86 M.S.P.R. 121, ¶¶ 2, 6 (2000) (finding that
the appellant was entitled to have the Board decide the merits of his affirmative
defense of marital status discrimination raised in his demotion appeal).
Here, we find that the administrative judge properly considered the
evidence as a whole in finding that the appellant failed to show by preponderant
evidence that discrimination based on sex, race, or marital status was a
motivating factor in her removal. ID at 9-11. The administrative judge
thoroughly considered the record evidence, including the appellant’s EEO
complaint and deposition testimony, and found no evidence to indicate that
prohibited discrimination or retaliation was a motivating factor in her removal.
ID at 10-11. In particular, the appellant testified during her deposition that she
was unaware of any comments that the deciding official had made to suggest that
7
she had an animus based on marital status, sex, race, or prior protected activity.
IAF, Tab 26 at 33. The appellant further testified that she believed that the
deciding official had an improper animus because she upheld the agency’s
removal action. Id. at 33-34.
In her petition for review, the appellant reasserts her claim of retaliation for
prior EEO activity. PFR File, Tab 1 at 4; IAF, Tab 1 at 5. Although the
administrative judge failed to make an explicit finding on that claim, we find it
unnecessary to remand the appeal because the appellant waived her right to a
hearing, the administrative judge correctly notified her of the elements and
burden of proving the claim, and the record has been fully developed on the
claim. IAF, Tab 23 at 3-4; see Mahaffey v. Department of Agriculture ,
105 M.S.P.R. 347, ¶¶ 4, 10-11 (2007) (finding that, although the administrative
judge erred in failing to address the appellant’s affirmative defenses, remand was
unnecessary because the appellant was aware of his burden and elements of proof
regarding his claims, he waived a hearing, and the record was fully developed on
his claims). Based on our review of the record, we find that the appellant has
failed to prove by preponderant evidence that retaliation for EEO activity was a
motivating factor in her removal. The appellant has not disputed on review the
accuracy of her deposition testimony, and she has not provided any new evidence
of discrimination or retaliation. Therefore, we find no reason to disturb the
administrative judge’s finding that the appellant failed to prove her affirmative
defenses.4 Because we find that the appellant failed to show that prohibited
discrimination or retaliation was a motivating factor in the decision to remove
her, we do not reach the question of whether discrimination or retaliation was a
4 The appellant reasserts on review a claim of discrimination based on educational
status that the administrative judge did not address below. PFR File, Tab 1 at 4; IAF,
Tab 1 at 5, 35, Tab 9 at 9, 16-19, 25. Discrimination based on educational status is not
a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). Thus, we find that the
administrative judge did not err in not addressing this claim, and we decline to consider
it further.
8
“but-for” cause of the removal action. See Pridgen, 2022 MSPB 31, 20-22,
29-33.
The administrative judge properly found that the agency established nexus and
the reasonableness of the penalty.
When, as in the instant appeal, the Board has sustained all of the agency’s
charges, the Board will review an agency-imposed penalty only to determine if
the agency considered the relevant Douglas factors5 and exercised management
discretion within tolerable limits of reasonableness. Holland v. Department of
Defense, 83 M.S.P.R. 317, ¶ 9 (1999). The Board will modify the agency’s
chosen penalty only if it finds that the agency failed to weigh the relevant factors
or that the agency’s judgment clearly exceeded the limits of reasonableness. Id.;
Douglas, 5 M.S.P.R. at 306.
We find that the agency properly considered the relevant Douglas factors in
deciding the appropriate penalty. In the decision letter, the deciding official
found that the appellant’s less than 2 years of service and otherwise satisfactory
performance were outweighed significantly by the nature and seriousness of her
misconduct. IAF, Tab 4 at 34-35. In particular, the deciding official stated that
the appellant’s misconduct demonstrated her neglect of duty and unreliability as
an intermittent employee, who must be available for work as needed. Id. The
deciding official also addressed the appellant’s allegations that she left work
early because she feared for her safety and that she felt threatened and harassed
but found that she provided no evidence to substantiate her claims and did not
explain why she did not bring her concerns to the attention of her manager. Id.
at 35-36. In addition, the deciding official found that the penalty of removal is
consistent with the agency’s table of penalties, which is supported by the record
evidence. Id. at 35, 74-75.
5 In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of
12 factors that are relevant in assessing the appropriateness of an agency-imposed
penalty for an employee’s misconduct.
9
The appellant reasserts on review her claim that she left work early because
she feared for her safety. PFR File, Tab 1 at 5-6. The record evidence shows that
the appellant presented the agency with an oral and a written reply to the notice
of proposed removal, but based on our review of the record, the appellant did not
provide the agency with specific information detailing circumstances that made
her leave her duty station early on September 14, on October 7, or on or around
December 3, 2015. IAF, Tab 4 at 38-39, Tab 5 at 4-138. We further find that the
appellant has not shown that she could not have provided such details to the
agency. Thus, the agency did not err by not considering the appellant’s claim
concerning alleged threats as a mitigating circumstance in deciding the
appropriate penalty. IAF, Tab 4 at 36. Moreover, we find no reason to disturb
the administrative judge’s finding that the penalty of removal does not exceed the
bounds of reasonableness. ID at 9; see Walker, 102 M.S.P.R. 474, ¶ 19 (finding
that the agency’s removal penalty, based on the appellant’s refusal to report for
duty when on call and repeated discourtesy to his supervisor, was reasonable);
Peters, 23 M.S.P.R. at 529 (finding that the penalty of removal for the sustained
instances of discourteous and unprofessional conduct did not exceed the limits of
reasonableness).
Further, the appellant does not dispute, and we find no reason to disturb,
the administrative judge’s finding that the agency established nexus between the
appellant’s misconduct and the efficiency of the service. ID at 7-8; see Parker v.
U.S. Postal Service , 819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding that there was
a sufficient nexus between an employee’s conduct and the efficiency of the
service when the conduct occurred, in part, at work).
The appellant’s claims of administrative judge bias do not provide a reason to
disturb the initial decision.
Finally, the appellant contends on review that the administrative judge’s
actions, attitude, verbal tone, and decisions demonstrate bias, an abuse of
discretion, and harmful procedural error. PFR File, Tab 1 at 5, 7. The Board will
10
not infer bias based on an administrative judge’s case-related rulings. Vaughn v.
Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013). Moreover, an
administrative judge’s conduct during the course of a Board proceeding will
warrant a new adjudication only if her comments or actions evidence a
“deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id.; see Bieber v. Department of the Army , 287 F.3d 1358, 1362-63
(Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)).
Here, the appellant has not identified any improper comments by the
administrative judge that would indicate favoritism or antagonism. Further, we
find that the administrative judge’s consideration of the agency’s motions to
dismiss the appeal either for lack of jurisdiction or based on the appellant’s civil
action does not evidence bias, an abuse of discretion, or harmful procedural error.
PFR File, Tab 1 at 5, 7; IAF, Tabs 11-13; see Bowens v. Office of Personnel
Management, 59 M.S.P.R. 390, 392 (1993) (recognizing that an administrative
judge has wide discretion to control the proceedings before her, including ruling
on motions); 5 C.F.R. § 1201.41(b)(8).
Accordingly, we find that the administrative judge properly affirmed the
appellant’s removal.
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
12
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
13
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.
14
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. | Thompson_ShayleAT-0752-16-0518-I-1_Final_Order.pdf | 2024-02-05 | SHAYLE THOMPSON v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. AT-0752-16-0518-I-1, February 5, 2024 | AT-0752-16-0518-I-1 | NP |
2,431 | https://www.mspb.gov/decisions/nonprecedential/Thomas_AmySF-844E-20-0289-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMY THOMAS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-20-0289-I-1
DATE: February 5, 2024
THIS ORDER IS NONPRECEDENTIAL1
A
my Thomas , Yerington, Nevada, pro se.
Albert Pete Alston, Jr. , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND 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). For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant began working for the U.S. Postal Service (USPS) on
November 11, 2006, and she occupied a Rural Carrier position at the time
relevant to this appeal. Initial Appeal File (IAF), Tab 5 at 10, Tab 11 at 14.
Effective July 2, 2018, following her exhaustion of her Family Medical Leave Act
(FMLA) leave, the appellant entered the status of absent without leave (AWOL).
IAF, Tab 5 at 40, 57-60, 73, 82. The following day, on July 3, 2018, she applied
for FERS disability retirement annuity benefits with OPM. Id. at 73-76. The
appellant based her request for benefits on the following conditions: chronic
neck pain; cervical degenerative disc disease; cervical disc bulges; a cervical disc
extrusion; possible cervical fracture; asthma/frequent lower respiratory
infections; post-traumatic stress disorder; and chronic depression and anxiety. Id.
at 73. Thereafter, effective September 8, 2018, USPS terminated the appellant for
unacceptable attendance. Id. at 10. On October 15, 2018, the Social Security
Administration (SSA) determined that the appellant did not qualify for SSA
disability benefits. Id. at 36-39.
On April 10, 2019, OPM issued an initial decision concluding that the
appellant was not disabled for purposes of a FERS disability annuity. Id.
at 24-28. The appellant requested reconsideration of OPM’s initial decision, id.
at 18-19, 23, and, on January 28, 2020, the agency issued a reconsideration
decision again concluding that she was not entitled to disability retirement under
FERS, id. at 11-14. On February 28, 2020, the appellant appealed OPM’s
reconsideration decision to the Board. IAF, Tab 1. Although she initially
requested a hearing on the matter, id. at 2, the appellant subsequently withdrew
her hearing request in favor of a decision on the written record, IAF, Tab 7 at 4. 2
Based on the written record, the administrative judge issued an initial
decision affirming OPM’s reconsideration decision. IAF, Tab 13, Initial Decision
(ID) at 1, 19. In so doing, the administrative judge found that it was undisputed
that the appellant had completed the requisite 18 months of civilian service
creditable under FERS and that she had not declined a reasonable offer of
reassignment to a vacant position. ID at 14. She concluded, however, that the
appellant had not shown by preponderant evidence that she had become disabled
while in a position subject to FERS. ID at 14-19. In so finding, the
administrative judge explained that she “decline[d] to give the [appellant’s] SSA
decision weight one way or the other.” ID at 19. The administrative judge also
concluded that, although USPS had not sought to accommodate the appellant’s
medical conditions, there was no indication that the appellant had requested any
such accommodation. Id.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 4, 6. In her petition for review,
the appellant avers that she was medically unable to perform her job functions.
PFR File, Tab 4 at 1-6. To this end, she asserts that she was on FMLA leave from
April 2018 until June 2018 and that, thereafter, she “still required extensive
amounts of leave for [her] medical conditions.” Id. at 3. She also asserts that
SSA had concluded that she was incapable of performing work that she had done
in the past. Id. Following the close of the record on review, the appellant filed a
request for leave to file an additional pleading, explaining that, on December 16,
2021, she received a subsequent, fully favorable SSA decision. PFR File, Tab 9
at 1.
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant bears the burden of proving her entitlement to retirement
benefits by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(ii). To be
eligible for a disability retirement annuity under FERS, an applicant must show3
the following: (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 medical 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. 5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a); see Thorne v.
Office of Personnel Management , 105 M.S.P.R. 171, ¶ 5 (2007).
An applicant for disability retirement may meet the requirements related to
the second criterion 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. See 5 U.S.C. § 8451(a)(1)(B); Rucker v.
Office of Personnel Management , 117 M.S.P.R. 669, ¶ 10 (2012); 5 C.F.R.
§ 844.103(a)(2). 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. Jackson v. Office of Personnel Management , 118 M.S.P.R. 6, ¶ 8
(2012).
Here, as set forth in the initial decision, there is no dispute that the
appellant satisfied criterion (1) and criterion (5). ID at 14; PFR File, Tab 6 at 6.
Although the administrative judge concluded that the appellant failed to satisfy
criterion (2), ID at 19, she did not render explicit findings regarding the
remaining criteria, i.e., criterion (3) and criterion (4). 4
We remand this matter for the administrative judge to provide the parties with
notice regarding the Bruner presumption.
The appellant avers that she became disabled while employed by USPS.
PFR File, Tab 4 at 1-6. To this end, she contends that her medical conditions
required her to use “extensive amounts” of leave, i.e., that she satisfied the
second criterion because her medical conditions prevented her from being regular
in attendance. Id. at 3.
In Bruner v. Office of Personnel Management , 996 F.2d 290, 294 (Fed. Cir.
1993), the U.S. Court of Appeals for the Federal Circuit concluded that an
appellant’s removal for physical inability to perform the essential functions of her
position constitutes prima facie evidence that she is entitled to disability
retirement.2 In so finding, the Federal Circuit explained that such a removal
action shifts the burden of production to OPM to produce evidence sufficient to
support a finding that the applicant is not entitled to disability retirement benefits.
Id. If OPM produces such rebuttal evidence, the appellant must then come
forward with evidence to rebut OPM’s assertion that she is not entitled to
benefits. Id. Notwithstanding the shifting burdens, however, the appellant
retains the burden of persuasion at all times to establish entitlement to disability
retirement benefits by preponderant evidence. Id. The Board has found that
removal for excessive absences is synonymous with removal for inability to
perform for medical reasons when the removal decision is accompanied by
specifications indicating that it was based on medical documentation showing that
the appellant was unable to perform her duties. See, e.g., Ayers-Kavtaradze v.
Office of Personnel Management , 91 M.S.P.R. 397, ¶ 11 (2002); see also
Smedley v. Office of Personnel Management , 108 M.S.P.R. 31, ¶¶ 12-13 (2008)
2 Although Bruner involved a disability retirement annuity under the Civil Service
Retirement System (CSRS), the Board has consistently applied the evidentiary
presumption set forth therein to appeals involving disability retirement benefits under
FERS. E.g., Bell v. Office of Personnel Management , 99 M.S.P.R. 133, ¶¶ 1, 10-12
(2005); McCurdy v. Office of Personnel Management , 96 M.S.P.R. 90, ¶¶ 1, 6-8 (2004).
Indeed, the statutory and regulatory requirements for disability retirement under CSRS
and FERS contain the same relevant language. Jackson, 118 M.S.P.R. 6, ¶ 7.5
(explaining that the Board has applied the Bruner presumption based on physical
and/or psychological conditions). When an agency has removed an appellant for
such reasons, the administrative judge must inform the parties of their respective
burdens under Bruner. See Swadlo v. Office of Personnel Management ,
100 M.S.P.R. 420, ¶ 9 (2005).
Here, documentation in the record evinced that, effective September 8,
2018, following her exhaustion of her FMLA leave, USPS terminated the
appellant based on a charge of unacceptable attendance. IAF, Tab 5 at 10, 40,
57-60, 73, 82. The record, however, was devoid of information regarding the
basis of the removal action, e.g., the decision letter or the notice of proposed
removal.3 Ayers-Kavtaradze, 91 M.S.P.R. 397, ¶ 11 (stating that a charge must be
viewed in light of the accompanying specifications and circumstances). Because
the nature of the appellant’s removal may have implicated Bruner, the
administrative judge should have informed the parties of their respective burdens
under the same in order to allow them to submit evidence related thereto. See
Jones v. Office of Personnel Management , 75 M.S.P.R. 499, 502 (1997)
(explaining that the administrative judge must determine the basis for the
appellant’s removal, i.e., whether the Bruner presumption is applicable, before
determining the parties’ respective burdens of proof). The appellant, however,
did not receive notice of the Bruner presumption either prior to or in the initial
decision. Accordingly, we remand the appeal to the regional office for the
administrative judge to provide the parties with explicit notice of Bruner and to
allow for the submission of additional evidence. See Bell v. Office of Personnel
Management, 99 M.S.P.R. 133, ¶¶ 1, 10-12 (2005) (remanding a FERS disability
retirement appeal to provide the parties an opportunity to submit additional
3 Although OPM provided evidence suggesting that the appellant failed to provide
“proper [m]edical [d]ocumentation” to USPS to justify her AWOL status, IAF, Tab 5
at 57, this evidence did not make clear the underlying basis of the removal action.
Indeed, the record also contained documentary evidence indicating that USPS personnel
believed that any accommodation of the appellant was unfeasible “due to the severity of
[her] medical condition[s] and the physical requirements of [her] position.” Id. at 45. 6
evidence and argument when the administrative judge failed to inform them of
their respective burdens under Bruner); see also Ayers-Kavtaradze, 91 M.S.P.R.
397, ¶¶ 1, 11-12 (remanding a FERS disability retirement appeal when the
appellant was removed for having been on extended leave without pay status and
the administrative judge failed to provide the parties with notice of the Bruner
presumption). To the extent any such additional evidence implicates Bruner, the
administrative judge shall apply the appropriate burden of proof.
The administrative judge shall consider SSA’s disability determination on
remand.
In her petition for review, the appellant contends that SSA’s unfavorable
October 15, 2018 decision substantiates her entitlement to disability benefits.
PFR File, Tab 4 at 3. In her request for leave to file an additional pleading, she
explains that, on December 16, 2021, she received a subsequent, fully favorable
SSA decision. PFR File, Tab 9 at 1. In assessing disability retirement appeals,
the Board must consider an award of SSA disability benefits, along with the other
evidence of disability. Trevan v. Office of Personnel Management , 69 F.3d 520,
526 (Fed. Cir. 1995); see Redmond v. Office of Personnel Management ,
90 M.S.P.R. 4, ¶¶ 8, 10 (2001) (concluding that an award of SSA benefits was
material to a determination of whether the appellant was entitled to disability
retirement benefits under FERS). In her initial decision, the administrative judge
acknowledged SSA’s findings at the time the initial decision was issued, ID at 3;
however, she ambiguously indicated that, because “SSA generally does not
consider the availability of reasonable accommodation,” she “decline[d] to give
the SSA decision weight one way or the other,” ID at 18-19. On remand, the
administrative judge shall consider SSA’s findings in conjunction with the
medical evidence in the record. See McCurdy v. Office of Personnel
Management, 96 M.S.P.R. 90, ¶ 9 (2004) (concluding that remand was7
appropriate when the administrative judge had not considered a favorable SSA
decision issued subsequent to the initial decision).4
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 On remand, the appellant may provide the Board with SSA’s most recent decision as
well as any medical documentation on which SSA relied. See McCurdy, 96 M.S.P.R.
90, ¶ 10. On January 19, 2024, the appellant submitted a second motion for leave to
submit an additional pleading, requesting permission to submit evidence that she served
the agency with her petition for review. In light of the Board’s remand of this matter,
the appellant’s motion is denied.8 | Thomas_AmySF-844E-20-0289-I-1_Remand_Order.pdf | 2024-02-05 | AMY THOMAS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-20-0289-I-1, February 5, 2024 | SF-844E-20-0289-I-1 | NP |
2,432 | https://www.mspb.gov/decisions/nonprecedential/Ruff_Tommy_L_DC-0752-16-0840-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TOMMY L. RUFF,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-16-0840-I-2
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tommy L. Ruff , Conover, North Carolina, pro se.
Brandon Truman , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s 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
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).
BACKGROUND
Effective August 12, 2016, the agency removed the appellant from his
Supervisor of Maintenance Operations position based on a charge of improper
conduct. Ruff v. U.S. Postal Service , MSPB Docket No. DC-0752-16-0840-I-1,
Initial Appeal File (IAF), Tab 4 at 21, 25. The agency’s charge alleged, among
other things, that the appellant made comments and gestures of a sexual nature to
a female subordinate employee. Id. at 29-30. For example, the appellant
allegedly asked her if he could rub her back and if he could come to her house.
Id. at 29. He also allegedly sent her a text message that stated, “I want u [sic].”
Id.
The appellant appealed his removal to the Board and requested a hearing.
IAF, Tab 1 at 1-5. The administrative judge dismissed the appeal without
prejudice and refiled it. Ruff v. U.S. Postal Service , MSPB Docket No. DC-0752-
16-0840-I-2, Appeal File (I-2 AF), Tabs 1-2. The appellant disputed the agency’s
charge but conceded during a prehearing conference that, if the agency proved the
charged misconduct, there is a nexus between the misconduct and the efficiency
of the service and that the penalty imposed does not exceed the bounds of
reasonableness. I-2 AF, Tab 3 at 4-5, Tab 5 at 2.2
After holding a hearing, the administrative judge issued an initial decision
affirming the removal action. I-2 AF, Tab 9, Initial Decision (ID) at 2, 16-17.
Specifically, he sustained the improper conduct charge, ID at 3-16, and noted the
appellant’s concession of the existence of a nexus and the reasonableness of the
penalty, ID at 3 n.4.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response opposing his petition. PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge of improper conduct by preponderant evidence.
On review, the appellant challenges the administrative judge’s finding that
the agency proved its charge of improper conduct, raising the following
arguments: (1) the administrative judge erred in relying on the testimony of the
complaining witness (complainant); (2) the administrative judge did not allow
him to present employee statements during the hearing purportedly relating to the
complainant’s credibility; (3) one of his approved witnesses was not available to
testify at the hearing; and (4) he was not properly represented by his attorney
below.2 PFR File, Tab 1 at 5. As discussed below, we affirm the administrative
judge’s finding that the agency proved the charge by preponderant evidence. ID
at 16; see Lachance v. Merit Systems Protection Board , 147 F.3d 1367, 1371
(Fed. Cir. 1998) (finding that, when an agency has employed a generic label for
the charge, the Board must look to the specification to determine what conduct
the agency is relying on as the basis for its proposed action).
The administrative judge found that the complainant’s testimony was more
credible than the appellant’s. ID at 15. Specifically, the administrative judge
observed the complainant’s demeanor and found that she testified in a
straightforward, consistent, and unrehearsed manner. Id. He also found that her
2 The appellant’s attorney withdrew from representation after the hearing and before the
issuance of the initial decision. I-2 AF, Tab 7.3
testimony was consistent with her previous statements. Id. The administrative
judge further found unconvincing the appellant’s claim that the complainant
falsified her testimony because she wanted his position or disliked the fact that he
was her supervisor. Id. In addition, the administrative judge observed that the
appellant appeared willing to alter his version of events on the spot. ID at 16.
Moreover, the administrative judge found that the appellant’s proffered reasons
for sending the text messages at issue were inherently implausible. Id.
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. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) . Here, the administrative judge heard live
testimony and based his credibility determinations on the demeanor of the
witnesses. ID at 15-16. Thus, the Board may overturn such determinations only
if it has “sufficiently sound” reasons for doing so. Haebe, 288 F.3d at 1301. For
the following reasons, we find that the appellant’s allegations do not provide a
sufficiently sound reason to overturn the administrative judge’s credibility
determinations. See Rapp v. Office of Personnel Management , 108 M.S.P.R. 674,
¶ 13 (2008) (finding that a sufficiently sound reason to overturn a credibility
determination is when the administrative judge’s findings are incomplete,
inconsistent with the weight of the evidence, and do not reflect the record as a
whole).
The appellant alleges that the administrative judge did not allow him to
present employee statements during the hearing purportedly discrediting the
complainant’s testimony.3 PFR File, Tab 1 at 5. He argues that such statements
3 During the hearing, the appellant’s attorney asked the appellant why he believed the
complainant had a motivation to give false testimony. I-2 AF, Tab 6, Hearing Compact
Disc (direct examination of the appellant). He testified that, during the agency’s
investigation, several employees made statements asserting harassment by the
complainant. Id. The agency representative objected to this testimony, and the
administrative judge overruled the objection. Id. The administrative judge then
instructed the appellant to answer his attorney’s question. Id.4
prove that she was motivated to give false testimony and that she has been
accused of harassment by other male employees. Id. The Board has held that an
administrative judge must consider, among other things, the character and bias of
a witness when making a credibility determination. Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458-60 (1987).
Based on our review of the record, we find that the appellant has failed to
prove that the administrative judge excluded evidence relevant to the
complainant’s credibility. See Thomas v. U.S. Postal Service , 116 M.S.P.R. 453,
¶ 4 (2011) (finding that, to prove that an administrative judge abused his
discretion in excluding evidence, an appellant must show that the disallowed
evidence would have affected the outcome of the appeal). The record below
contains investigatory notes of employee interviews. IAF, Tab 4 at 75-88,
98-100, 104-05, 107-09. The administrative judge properly considered this
evidence in determining the credibility of the complainant’s testimony. ID
at 16 n.22. Moreover, to the extent the appellant is referring to employee
statements not contained in the record below, he has failed to describe or provide
such evidence on review. PFR File, Tab 1. Thus, we find that the appellant has
failed to prove that the administrative judge erred in relying on the complainant’s
testimony in sustaining the agency’s charge. 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 credibility findings when she considered the evidence as a whole, drew
appropriate references, and made reasoned conclusions on issues of credibility).
Regarding the appellant’s arguments—that his approved witness was
unable to testify at the hearing and that he was not properly represented by his
attorney below—we find that they provide no basis to disturb the initial decision.
PFR File, Tab 1 at 5. The appellant has neither alleged any potential testimony
that the approved witness could have made that would have led to a different
outcome, nor provided a statement from the approved witness on review. PFR
File, Tab 1; see 5 C.F.R. § 1201.115(d) (providing that the Board may grant a5
petition for review based on new and material evidence or legal argument).
Moreover, except when an appellant’s diligent efforts to prosecute an appeal have
been thwarted, without his knowledge, by his attorney’s deceptions, negligence,
or malfeasance, an appellant generally is responsible for the errors of his chosen
representative. Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526,
¶ 13, aff’d, 404 F. App’x 466 (Fed. Cir. 2010). Here, we find that the appellant
has not presented circumstances to warrant finding an exception to that general
principle.
Finally, the appellant has not challenged the issues of nexus or penalty on
review after conceding them below. PFR File, Tab 1; ID at 3 n.4; I -2 AF, Tab 5
at 2; see Hall v. Department of Defense , 117 M.S.P.R. 687, ¶ 6 (2012) (explaining
that, in an adverse action appeal, the agency generally must prove its charge by
preponderant evidence and establish a nexus between the sustained misconduct
and the efficiency of the service, and that the penalty is within the tolerable
bounds of reasonableness). Accordingly, we find that the administrative judge
properly affirmed the agency’s removal action.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Ruff_Tommy_L_DC-0752-16-0840-I-2_Final_Order.pdf | 2024-02-05 | TOMMY L. RUFF v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-16-0840-I-2, February 5, 2024 | DC-0752-16-0840-I-2 | NP |
2,433 | https://www.mspb.gov/decisions/nonprecedential/Wallach_RaymondNY-0752-14-0228-A-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAYMOND WALLACH,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
NY-0752-14-0228-A-1
DATE: February 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kara Lafferty , Esquire, Westford, Massachusetts, for the appellant.
Christian Lewerenz , Esquire, Jamaica, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the addendum initial
decision, which denied the appellant’s motion for attorney fees. For the reasons
discussed below, we DENY the appellant’s petition for review, AFFIRM the
addendum initial decision as MODIFIED to explain in more detail why the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
appellant is not entitled to attorney fees, and DENY the appellant’s motion for
attorney fees.
BACKGROUND
The appellant was formerly an Air Traffic Control Specialist (ATC) with
the Federal Aviation Administration (FAA), a component of the agency. The
FAA has a mandatory retirement age of 56, but ATCs can request consecutive
1-year waivers until they reach age 61. During the appellant’s first 1-year
extension, the agency terminated him for alleged misconduct and he filed an
appeal in which he claimed violations of due process. Wallach v. Department of
Transportation, MSPB Docket No. NY-0752-14-0228-I-1, Initial Appeal File
(IAF), Tab 1. During the adjudication of the appeal, the parties reached a
settlement agreement under which terms, as relevant here, the agency agreed to
pay the appellant $12,862.50 in attorney fees, and the agency did not concede that
the Board had jurisdiction over the appeal. IAF, Tab 10 at 3, ¶ 4, id. at 5, ¶ 16.
On July 18, 2014, the parties submitted the agreement to the administrative judge
for enforcement purposes. Id. at 1. The administrative judge did not take action
on the submission at that time.
Meanwhile, the appellant returned to work and thereafter requested a third
1-year extension, which the agency denied. The appellant believed that this
constituted a breach of the agreement and, even though the agreement had not yet
been accepted into the record for enforcement, filed a petition for enforcement.
IAF, Tab 11. Because there was as yet nothing to enforce, the administrative
judge called the petition for enforcement a premature “Compliance Application,”
and he rejected and returned it to the appellant. IAF , Tab 12.
3
At that point, consistent with Board precedent as it existed at the time,2 the
administrative judge informed the parties that he could not accept the settlement
agreement into the record for enforcement purposes without first determining that
the Board had jurisdiction over the appeal. Id. He thus issued a show cause order
directing the parties to submit evidence and argument as to whether the Board had
jurisdiction. Id.
After considering the parties’ submissions, the administrative judge issued
a May 24, 2016 initial decision in which he found that the Board had jurisdiction
over the appeal, and he accepted the settlement agreement into the record for
enforcement purposes. Neither party petitioned for review of the initial decision
and it became the Board’s final decision.
Because the appellant’s responses to the show cause order had been largely
dedicated to his arguments concerning the alleged breach of the settlement
agreement, on April 7, 2014, the administrative judge had docketed the
appellant’s compliance claims as a new appeal under docket number NY-0752-
14-0228-C-1. On November 15, 2016, the administrative judge issued a
compliance initial decision in which he denied the appellant’s petition for
enforcement. Wallach v. Department of Transportation , MSPB Docket No. NY-
0752-14-0228-C-1, Compliance Initial Decision (Nov. 15, 2016). The parties did
not petition for review of the compliance initial decision and it became the
Board’s final decision.
The appellant filed a motion for attorney fees seeking additional fees for
work performed on the merits case and for work performed on his unsuccessful
compliance case. Wallach v. Department of Transportation , MSPB Docket
No. NY-0752-14-0228-A-1, Attorney Fee File (AFF), Tab 1. The administrative
judge denied the motion and found that the appellant was not entitled to attorney
2 On January 4, 2017, the Board issued Delorme v. Department of the Interior ,
124 M.S.P.R. 123, ¶ 21 (2017), which abolished the requirement that an administrative
judge must find jurisdiction over the underlying appeal before accepting a settlement
agreement into the record for enforcement purposes.
4
fees. Addendum Initial Decision (AID) at 1, 16. More specifically, the
administrative judge concluded that attorney fees for the appellant’s merits appeal
were resolved by the settlement agreement, and to the extent they were not part of
the agreement, the appellant did not show that fees were warranted in the interest
of justice. AID at 11-15. The administrative judge found that fees for work on
the enforcement proceeding were not compensable because the appellant was not
the prevailing party in that case. Id. The appellant petitions for review of the
addendum initial decision. Petition for Review (PFR) File, Tab 1. The agency
responds to the petition for review. PFR File , Tab 5.
ANALYSIS
It is well settled that attorney fees cannot be awarded against the Federal
Government unless specifically authorized by a statutory waiver of sovereign
immunity. Brenner v. Department of the Interior , 119 M.S.P.R. 399, ¶ 5 (2013).
Such statutory authorization must be express and specific; it cannot be extended
beyond the statute’s literal terms and it cannot be implied. Id.
The appellant relies on 5 U.S.C. § 7701(g)(1) as the statutory authority for
an award of attorney fees. Under 5 U.S.C. § 7701(g)(1), the Board may require
payment by the agency of reasonable attorney fees incurred by an employee if the
employee is the prevailing party and the Board determines that payment is
warranted in the interest of justice. Driscoll v. U.S. Postal Service , 116 M.S.P.R.
662, ¶ 7 (2011). Attorney fees are incurred when an attorney -client relationship
exists and counsel has rendered legal services on behalf of the appellant in an
appeal before the Board. Farrar v. Department of the Army , 5 M.S.P.R. 26, 27
(1981). The appellant bears the burden of establishing his entitlement to an
award of attorney fees. Parker v. Office of Personnel Management , 75 M.S.P.R.
688, 691 (1997).
It is not disputed that the appellant and his counsel had an attorney -client
relationship and that counsel rendered legal services on the appellant’s behalf in
5
an appeal before the Board. However, for the reasons that follow, we need not
determine whether the appellant was the prevailing party in the merits appeal or
whether fees are warranted in the interest of justice.
As noted above, an award of attorney fees for the merits appeal already had
been provided for in the settlement agreement. Moreover, the agreement contains
broad waiver clauses:
The purpose of this Agreement is to resolve with finality any and all
actions, causes of action, complaints, grievances, appeals, and any
other matter arising out of the appellant’s …termination.
[T]he Appellant withdraws, and shall withdraw with prejudice, any
and all actions, causes of action, claims, complaints, grievances, and
appeals, pending against the Agency as of the date this agreement is
executed, pertaining to [the underlying employment action] and the
facts arising out of it.
Appellant agrees that he shall not bring any action, claim, complaint,
EEO complaint, grievance, or appeal, against the Agency, for any
matter that was or could have been raised in an appeal to the Merit
Systems Protection Board arising out of the March 10, 2014
termination notice. The appellant further agrees that the execution of
this Settlement Agreement irrevocably releases the Agency, and its
employees, officers, and agents, in their individual and official
capacities, from any and all actions, claims, complaints, grievances,
appeals, and proceedings, that were or could have been asserted in an
appeal to the MSPB as a result of such termination.
IAF, Tab 10 at 3, ¶¶ 5-6.3 The Board has found similar language to constitute a
valid waiver of the right to seek attorney fees. Swidecki v. U.S. Postal Service ,
101 M.S.P.R. 110, ¶ 25 (2006) (holding that an agreement providing that it is a
“full and final settlement of all matters” in the appeal constitutes a waiver of the
right to move for payment of attorney fees); Paderick v. Office of Personnel
Management, 54 M.S.P.R. 456, 459 n.2 (1992) (same). Because there is nothing
in the agreement that reserves a right to seek additional attorney fees for work on
the merits appeal, the appellant was not entitled to any attorney fees for work
3 In addition, the settlement agreement provides that it “contains the entire
understanding of the Parties, and there are no other written or oral understandings,
promises, or agreements that are not incorporated herein.” IAF, Tab 10, ¶ 12.
6
performed on the merits appeal beyond those already awarded in the settlement
agreement.
On review, the appellant argues that the settlement agreement did not
reserve a right to seek additional attorney fees because it was unforeseeable that
there would be any more work to be done. PFR File, Tab 1 at 7-8. On the
contrary, as stated above, under precedent in effect at the time, the administrative
judge could not accept a settlement agreement into the record for enforcement
purposes without first determining that the Board had jurisdiction over the
underlying appeal. Further, the appellant’s counsel included arguments
addressing jurisdiction over the appeal in a filing made 1 month before the parties
filed the settlement agreement, indicating that he was aware jurisdiction was
potentially at issue. IAF, Tab 8. Finally, the settlement agreement itself includes
language that the agency did not concede jurisdiction over the underlying appeal.
The appellant therefore had explicit notice at the time he entered into the
settlement agreement that there could be additional litigation over the question of
jurisdiction.
In addition, even if it had been unforeseeable when the parties entered into
the agreement that the appellant’s counsel would be required to perform
additional work before the agreement would be accepted for enforcement and the
appeal dismissed, there is no indication in the record that the appellant attempted
to withdraw his assent to the agreement, or sought to modify it, at any time
between the submission of the agreement and the administrative judge’s dismissal
of the appeal approximately 22 months later.
Because the agreement set a sum certain the appellant was to receive for
attorney fees and contained broadly worded language making it clear that he was
waiving his right to pursue any further action arising out of his termination, the
appellant should have known that his recovery of fees was limited by the
agreement. The parties did not bargain for a future right to request additional
fees, and the appellant is therefore precluded from recovering fees above what
7
was specified in the agreement for his attorney’s work performed on the merits
appeal.
Furthermore, to the extent the appellant is requesting fees for time his
attorneys spent performing work on the petition for enforcement, whether the fees
were incurred for work attempting to enforce the agreement prematurely, while
the merits appeal was still pending, or after the compliance case had been
docketed, his request must be denied. Under Board precedent, even when an
appellant is a prevailing party on the merits, he must separately establish that he
prevailed in a petition for enforcement in order to be entitled to attorney fees for
work performed in an enforcement proceeding. See Doe v. Pension Benefit
Guaranty Corporation , 123 M.S.P.R. 1, ¶¶ 8-9 (2015); Shelton v. Environmental
Protection Agency , 115 M.S.P.R. 177, ¶ 12 (2010); Mynard v. Office of Personnel
Management, 108 M.S.P.R. 58, ¶¶ 14-15 (2008). In order to show that he is the
prevailing party in the compliance phase of the proceedings, an appellant must
establish either that the agency materially breached the Board enforceable order
or settlement agreement at issue or that the relief the party achieved carries with
it sufficient Board imprimatur. Mynard, 108 M.S.P.R. 58, ¶ 16.
Here, as noted above, the administrative judge denied the appellant’s
petition for enforcement, and there is no evidence that the appellant received any
relief in connection with his claim that the agency had breached the agreement;
thus, we conclude that he has not met his burden to prove that he was the
prevailing party with respect to the petition for enforcement, and he is not entitled
to recover attorney fees for his counsel’s work performed in that regard.
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
4 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.
8
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 particular
9
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 .
10
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
11
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.
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. | Wallach_RaymondNY-0752-14-0228-A-1_Final_Order.pdf | 2024-02-05 | RAYMOND WALLACH v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. NY-0752-14-0228-A-1, February 5, 2024 | NY-0752-14-0228-A-1 | NP |
2,434 | https://www.mspb.gov/decisions/nonprecedential/Reifsnyder_Phailin_DC-0843-21-0303-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHAILIN REIFSNYDER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0843-21-0303-I-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
llen A. Shoikhetbrod , Esquire, Albany, New York, for the appellant.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which affirmed the final decision of the Office of Personnel Management (OPM)
denying her the Basic Employee Death Benefit (BEDB) under Federal
Employees’ Retirement System (FERS) as a result of her former spouse’s death.
On petition for review, the appellant argues that the divorce decree provides 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 BEDB because it awarded her a maximum former spouse survivor annuity,
which she argues encompasses the BEDB, and because it was the clear intent of
the parties that she receive all benefits under FERS. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that,
despite the petitioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. §
1201.113(b).
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 | Reifsnyder_Phailin_DC-0843-21-0303-I-1_Final_Order.pdf | 2024-02-02 | PHAILIN REIFSNYDER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0843-21-0303-I-1, February 2, 2024 | DC-0843-21-0303-I-1 | NP |
2,435 | https://www.mspb.gov/decisions/nonprecedential/Amos_Darren_N_SF-0752-16-0434-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARREN N. AMOS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-16-0434-I-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darren N. Amos , Mountain Home, Idaho, pro se.
Randy Choiniere , Rock Island, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which mitigated the removal action to a
demotion and found that the appellant failed to prove his affirmative defenses.
For the reasons discussed below, we GRANT the petition for review, DENY the
cross petition for review, REVERSE the initial decision, and DO NOT SUSTAIN
the agency’s removal action.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 agency proposed the appellant’s removal from his Supervisory Fire
Protection Specialist position based upon the following charges: (1) receipt of
pay for time not worked; (2) unauthorized use of Government-owned property;
(3) unauthorized possession of Government-owned property; and (4) conduct
unbecoming a Federal supervisor, which was supported initially by two
specifications. Initial Appeal File (IAF), Tab 1 at 13-16. In the first specification
of conduct unbecoming a Federal supervisor, the agency charged that the
appellant engaged in inappropriate discussions with a subordinate employee about
her medical procedure in the presence of other employees, and in the second
specification, the agency charged that the appellant used his Federal position to
solicit discounts on personal purchases. Id. at 13-14. The appellant provided a
written reply to the proposed removal in which he submitted documentation
concerning the subordinate’s medical care, which he had received in his capacity
as her supervisor. IAF, Tab 11 at 137. In response, the proposing official
amended the proposal to add a third specification of conduct unbecoming a
Federal supervisor based upon the appellant’s improper use of the medical
documentation. IAF, Tab 1 at 17-18. The appellant responded orally and in
writing to the amended proposal. IAF, Tab 11 at 177-252.
¶3The deciding official sustained the first and third charges and specifications
1 and 3 of the fourth charge, found that each of the charges was sufficient by
itself to warrant the penalty of removal, and imposed the appellant’s removal.
IAF, Tab 1 at 19-21. The appellant filed the instant appeal challenging the
removal and asserting multiple affirmative defenses. Id. at 5. After holding the
appellant’s requested hearing, IAF, Tab 61, Hearing Compact Disc (HCD), the
administrative judge issued an initial decision that found the following: the
agency proved only the first charge regarding receiving pay for time not worked
and the third specification of the fourth charge regarding the improper use of the
subordinate employee’s medical documentation; the agency provided the2
appellant with due process; the appellant failed to prove harmful procedural error,
that the agency’s actions were not in accordance with law, prohibited personnel
practices under 5 U.S.C. § 2302(b)(12), his disability discrimination claim, and
retaliation for protected whistleblower activity; the agency established nexus; and
that it was necessary to mitigate the removal to a demotion to the position of a
nonsupervisory Firefighter or Fire Inspector with the least reduction in grade and
pay, IAF, Tab 63, Initial Decision (ID).
¶4The appellant has filed a petition for review, the agency has filed a cross
petition for review, and the appellant has responded.2 Petition for Review (PFR)
File, Tabs 1, 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5The appellant challenges the administrative judge’s conclusion that the
agency provided him due process because he asserts that the deciding official and
the proposing official engaged in ex parte communications before the agency
made its final decision to remove him. PFR File, Tab 1 at 22 –25. The U.S. Court
of Appeals for the Federal Circuit has held that, if a deciding official receives
new and material information through an ex parte communication, “then a due
process violation has occurred and the former employee is entitled to a new
constitutionally correct removal procedure.” Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999). Whether the ex parte
communication conveyed new and material information, however, depends on the
following factors: (1) whether the information was new rather than cumulative;
(2) whether the employee knew of the information and had a chance to respond to
it; and (3) whether the information was of a type likely to result in undue pressure
upon the deciding official to rule in a particular manner. Id. The ultimate inquiry
2 The agency asserts in its cross petition for review that the administrative judge erred
in mitigating the penalty of removal. Petition for Review File, Tab 3 at 5-11. Given
our determination that the appellant has proven a due process violation that warrants
reversal of the removal action, we deny the agency’s cross petition for review.3
is whether the communication is “so substantial and so likely to cause prejudice
that no employee can fairly be required to be subjected to a deprivation of
property under such circumstances.” Id.
¶6The proposing official testified that, after issuing the proposal notice, he
had at least two conversations with the deciding official in which they discussed
that the appellant was becoming a “disruption” in the fire department. HCD
(testimony of the proposing official). He testified that he informed the deciding
official that he received a telephone call from the equal employment opportunity
(EEO) office regarding informal anonymous complaints about the appellant from
employees. Id. He further testified that he told the deciding official that the
employees’ complaints included the fact that the appellant had not been
reassigned during the pendency of the removal action. Id. He also told the
deciding official that he had received some complaints from employees directly.
Id. Additionally, the proposing official testified that he explained to the deciding
official that he tried to find a placement for the appellant during the pendency of
the removal action but could not find one. Id. He further testified that he
recommended to the deciding official that the appellant should not remain in the
fire department under these circumstances. Id.
¶7The deciding official’s recollection about this portion of their conversations
is less detailed. He recalled having two conversations with the proposing official
during this time period regarding possible alternative positions for the appellant
and the performance of his duties. HCD (testimony of the deciding official). He
did not testify about the discussions regarding the EEO matters or complaints
from employees. Id. However, he was not asked about these matters at the
hearing or during his deposition, and his testimony does not contradict that of the
proposing official. Id.; IAF, Tab 75.
¶8The administrative judge found that the agency had not committed a due
process violation. ID at 19-20. She found that the information that the proposing
official provided to the deciding official was consistent with and arguably4
cumulative of the proposal notice in that the proposing official deemed the
appellant’s misconduct as serious enough to justify removal instead of
reassignment, and thus, he already had conveyed the information contained in the
communications at issue. Id. For the reasons discussed below, we disagree.
¶9The ex parte communications essentially address the following issues: the
proposing official’s opinion that the appellant should no longer work in the fire
department because of his disruptive nature and the unavailability of suitable
alternative positions for him; and complaints from employees, including
anonymous complaints sent to the EEO office and other complaints made directly
to the proposing official, that the appellant had not been reassigned during the
pendency of the removal action. HCD (testimony of the proposing official and
the deciding official). It is possible that the proposing official’s opinions
regarding potential reassignment are cumulative of the proposal in that it is
implicit in his recommendation to remove the appellant that he did not find the
appellant was suitable for reassignment. However, because we find that the
portion of the communication regarding employee complaints constitutes new and
material evidence, we need not address this issue.
¶10We find that the portion of the ex parte communications regarding
employees’ anonymous complaints to the EEO office and direct complaints to the
proposing official that the appellant had not been reassigned during the pendency
of the removal action is new because it concerns events that occurred after the
issuance of the proposal notice. We also find that the appellant would have had
no way of knowing about the employees’ specific complaints, particularly
anonymous complaints to the EEO office. There is also no evidence that he had
an opportunity to respond to this new information.
¶11We further find that this is the type of information likely to result in undue
pressure upon the deciding official to rule in a particular manner. For example,
the information likely influenced the deciding official to conclude that the
appellant would not be able to perform in any position at the agency without5
complaints from other employees or that his continued employment could result
in further EEO complaints. See Seeler v. Department of the Interior ,
118 M.S.P.R. 192, ¶¶ 9-10 (2012) (finding that an ex parte communication was
material when the deciding official relied upon it to conclude that the employee
lacked integrity and could not to be trusted to perform in another position).
Likewise, that the EEO office, which was not directly involved in the adverse
action and has a mission of preventing workplace discrimination, contacted the
proposing official to inform him of employee complaints, could influence the
deciding official to agree with the proposing official that the appellant was not
suitable for continued employment at the agency. See generally Amar v.
Department of the Treasury , 89 M.S.P.R. 505, ¶ 20 (2001) (stating that a
communication likely resulted in undue pressure on the deciding official because
it was from “a trusted source”).
¶12The proposing official testified that he provided information to the deciding
official regarding anonymous complaints about the appellant. HCD. The
deciding official did not contradict that testimony. Moreover, the deciding
official testified that he was required to take in all of the information that was
presented during the case from everyone, including the appellant and the
“referring” or proposing official, and make a decision. Id. He further testified
that he considered what was provided to him by the “referring” official and the
“evidence as a whole” and that he compiled “everything provided to me by the
referring official.” Id. Although the record could have been more fully
developed, we find it more likely than not that the deciding official received and
considered the ex parte information regarding the anonymous complaints about
the appellant in making his decision. We further find that the deciding official’s
receipt and consideration of the ex parte communication undermined the
appellant’s constitutional due process guarantee of notice and the opportunity to6
respond.3 See Howard v. Department of the Air Force , 118 M.S.P.R. 106, ¶ 6
(2012) (finding a due process violation when the deciding official considered the
appellant’s poor performance, including his poor audit production, in comparison
to other journeymen and as measured by the agency’s production goal as an
aggravating factor without providing him with notice or an opportunity to respond
to the information); Silberman v. Department of Labor , 116 M.S.P.R. 501, ¶ 14
(2011) (finding a due process violation when the deciding official considered five
memoranda that documented instances of the appellant’s similar prior misconduct
without prior notice). Consequently, we find that the removal must be reversed,
and this matter must be remanded to the agency to afford the appellant
constitutionally correct procedures.
¶13When the Board reverses an action on due process grounds and orders status
quo ante relief, it must nevertheless adjudicate any outstanding affirmative
defenses for which the appellant could obtain additional relief, such as
compensatory damages. See Edwards v. U.S. Postal Service , 112 M.S.P.R. 196,
¶¶ 15-16 (2009). Here, the appellant could be entitled to compensatory damages
if he proved his claim of disability discrimination. See Hess v. U.S. Postal
Service, 124 M.S.P.R. 40, ¶¶ 9-19 (2016). The appellant also could be entitled to
compensatory damages if he proved his claim of reprisal for protected disclosures
and/or protected activities under 5 U.S.C. § 2302(b)(8) or (b)(9). 5 U.S.C.
§ 1221(g)(1)(A)(ii); see King v. Department of the Air Force , 119 M.S.P.R. 663,
¶ 15 (2013). The administrative judge found that the appellant failed to prove his
3 The administrative judge found that, even if the information that the proposing official
conveyed to the deciding official constituted new and material evidence to which the
appellant did not have an opportunity to respond, it did not result in a due process
violation because there was insufficient evidence that the deciding official actually
relied upon the statements when imposing the removal. ID at 20. Specifically, she
found that the deciding official did not even remember the contents of the statements at
the time of the hearing and cited his even-tempered personality. Id. The fact that the
ex parte communication did not actually affect the decision is a procedural error
analysis. Mathis v. Department of State , 122 M.S.P.R. 507, ¶ 15 n.3 (2015). However,
because we reverse the appellant’s removal based upon due process, we need not
address this finding.7
discrimination and retaliation claims. ID at 28-41. We see no reason to disturb
the administrative judge’s findings as to those claims.4
ORDER
¶14We ORDER the agency to cancel the appellant’s removal and to restore the
appellant effective April 8, 2016. 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.
¶15We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶16We 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).
¶17No 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
4 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 discrimination or retaliation was a "but-for" cause
of the agency's decision. See Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 20-22, 29-33.8
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).
¶18For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS5
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
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
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 at10
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,11
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,12
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.
132 Stat. 1510. 13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14
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. | Amos_Darren_N_SF-0752-16-0434-I-1_Final_Order.pdf | 2024-02-02 | DARREN N. AMOS v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-16-0434-I-1, February 2, 2024 | SF-0752-16-0434-I-1 | NP |
2,436 | https://www.mspb.gov/decisions/nonprecedential/Bowser_Andre_J_NY-315I-17-0065-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDRE J. BOWSER,
Appellant,
v.
ENVIRONMENTAL PROTECTION
AGENCY,
Agency.DOCKET NUMBER
NY-315I-17-0065-I-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
ndre J. Bowser , Holyoke, Massachusetts, pro se.
Amanda B. Stulman , New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his supervisory probationary reassignment for lack of
Board 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).
¶2The petition for review was filed over 14 months after the filing deadline.
Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 5; Petition for Review
(PFR) File, Tabs 1, 3. In his motion to waive the deadline, the appellant
explained that he was deployed on military orders during the adjudication of his
Board appeal and was “on military convalescence leave (in hospital)” for several
weeks after the initial decision was issued. PFR File, Tab 3 at 4. The appellant
also indicates that he has been a “physical/mental health trauma patient” since
returning from his deployment, and that he is “currently homeless and did not
have regular access to a computer.” Id. at 4-6. The appellant attaches a copy of
his military orders and a Department of Veterans Affairs disability rating letter.
Id. at 9-17, 19-20.
¶3Aside from asserting that he has a service-connected disability, the
appellant has not explained what relation his disability has to any medical
condition, or explained how it prevented him from timely filing a petition for
review. We conclude that the appellant has not offered sufficient medical
evidence or other corroborating evidence to support his claim. See Chalom v.
Department of the Navy , 86 M.S.P.R. 218, ¶ 5 (2000) (noting that in order to
establish that an appellant’s untimely petition for review was the result of illness,
he must: (1) identify the time period during which he suffered from the illness;
(2) submit medical and/or corroborating evidence showing that he suffered from
the alleged illness during that time period; and (3) explain how the illness
prevented him from timely filing his petition or a request for an extension of
time); Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 -38 (1998).
Additionally, the over 14-month filing delay is significant. See Crook v. U.S.
Postal Service, 108 M.S.P.R. 553, ¶ 6 (finding a 1-month filing delay significant),
aff’d per curium , 301 F. App’x 982 (Fed. Cir. 2008). As such, the appellant has
not shown that he exercised due diligence or ordinary prudence under the
particular circumstances of this case, and thus he has not shown good cause for2
the delay in filing.2 Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184
(1980).
¶4Accordingly, 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 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 Under the Servicemembers Civil Relief Act of 2003 (SCRA), 50 U.S.C. § 3936, and
its predecessor, the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA), 50 U.S.C.
§ 526(a), the “period of a servicemember’s military service may not be included in
computing any period limited by law, regulation, or order for the bringing of any action
or proceeding in a court, or in any board, bureau, commission, department, or other
agency of a State (or political subdivision of a State) or the United States by or against
the servicemember or the servicemember’s heirs, executors, administrators, or assigns.”
50 U.S.C. § 526(a); see Brown v. U.S. Postal Service , 106 M.S.P.R. 12, ¶¶ 12-14 (2007)
(applying the SCRA tolling provision to Board proceedings). The Board has also held
that the relevant filing periods are automatically tolled for periods during which a
servicemember is on active duty, and an appellant “need not show that the
circumstances of his military service actually impaired his ability to pursue his legal
rights in a timely fashion.” Neighoff v. Department of Homeland Security ,
122 M.S.P.R. 86, ¶ 10 (2015) ( quoting Henry v. U.S. Postal Service , 69 M.S.P.R. 555,
558 (1996)). Here, as the agency correctly observed, the documentation submitted by
the appellant shows that his active duty deployment ended on February 15, 2017, at the
latest—before the administrative judge issued the initial decision in this case—and the
appellant has not argued that he has served in another active duty deployment since that
date. PFR File, Tab 3 at 17, 20. Accordingly, the automatic tolling provision of the
SCRA is not applicable here.
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
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. 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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | Bowser_Andre_J_NY-315I-17-0065-I-1_Final_Order.pdf | 2024-02-02 | ANDRE J. BOWSER v. ENVIRONMENTAL PROTECTION AGENCY, MSPB Docket No. NY-315I-17-0065-I-1, February 2, 2024 | NY-315I-17-0065-I-1 | NP |
2,437 | https://www.mspb.gov/decisions/nonprecedential/Ball_James_C_AT-1221-18-0376-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES C. BALL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-18-0376-W-1
DATE: February 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
S
terling Deramus , Esquire, Birmingham, Alabama, for the appellant.
Michael Rhodes , Esquire, Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review, we
REVERSE the initial decision, and we REMAND the case to the regional office
for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
The appellant holds a GS-13 Clinical Psychologist position at the agency’s
Veterans Health Administration (VHA), Tuscaloosa Veterans Affairs Medical
Center (TVAMC). Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 4-5. In
November 2014, the Associate Chief of Staff (ACOS) of the Mental Health
Department recommended the appellant to serve as a member of the selection
panel for the Chief of Psychology Service position. IAF, Tab 5 at 6, 27. After
the appellant expressed concerns about the selection process, he was removed
from the panel by the Assistant ACOS of Mental Health, who served as the
selecting official and chair of the selection committee. Id. at 6-7, 28-32. The
eventual selectee for the Chief of Psychology Service position became the
appellant’s first-line supervisor. Id. at 7.
On April 6, 2018, the appellant filed the instant IRA appeal with the Board,
and he requested a hearing. IAF, Tab 1 at 1-14. He included with his initial
appeal a letter dated February 6, 2018, from the Office of Special Counsel (OSC).
Id. at 15-16. In this letter, OSC informed the appellant of its determination to
close its inquiry into his complaint and notified him of the right to seek corrective
action from the Board through an IRA appeal for alleged prohibited personnel
practices described under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D).
IAF, Tab 1 at 15-16. OSC described the appellant’s complaint as alleging that he
made the following protected disclosures: he reported to the Veterans Affairs
(VA) Secretary that his supervisor had abused her power when she removed him
from a hiring panel; and he submitted a request under the Freedom of Information
Act (FOIA) regarding the hiring panel’s process and hiring decision. Id. at 15.
OSC further summarized the appellant’s complaint as alleging that he was given a
delineation of duties and a disciplinary reprimand in retaliation for making those
disclosures. Id.
In an Order on Jurisdiction and Proof Requirements, the administrative
judge informed the appellant that there was a question regarding whether his
3
appeal was within the Board’s jurisdiction, apprised him of the elements and
burden of proving jurisdiction over an IRA appeal, and ordered him to file a
statement with accompanying evidence on the jurisdictional issue. IAF, Tab 3.
In response, the appellant alleged that he made the following seven disclosures:
(1) in November 2014, he complained to the Assistant ACOS about the
inappropriate selection process for the Chief of Psychology Service position;
(2) in November 2014, he complained to the ACOS about the
inappropriate selection process and his removal from the selection panel; (3) on
November 21, 2014, he emailed the VA Secretary about his concerns regarding
the inappropriate selection process and his removal from the selection panel;
(4) on January 30, 2015, he filed a request under the FOIA/Privacy Act for
information related to the selection process; (5) on April 15, 2015, he submitted
an additional request for information to the Acting Director of TVAMC; (6) in the
spring/summer of 2015, he filed complaints with the agency’s Office of General
Counsel (OGC) regarding the actions of his supervisor, the Assistant ACOS, and
the Acting Director; and (7) on September 11, 2015, he complained to the Acting
Director about retaliation by the Assistant ACOS and an increased workload from
his supervisor. IAF, Tab 5 at 14-15. The appellant further alleged that the
agency took the following three retaliatory actions: (1) on November 21, 2014,
he was removed from the selection panel; (2) on April 10, 2015, his supervisor
issued him a memorandum titled “Delineation of Duties,” which required him to
schedule 30 patients per week in addition to performing his other duties and
resulted in a significant increase in workload; and (3) on September 29, 2015, his
supervisor and the Assistant ACOS issued him a reprimand. Id. at 16. In
addition, the appellant raised allegations of a hostile work environment and
general retaliatory harassment. Id. at 5-6, 16. The agency argued in response
that the Board lacks jurisdiction over this appeal. IAF, Tab 6.
Without holding the requested hearing, the administrative judge issued a
May 2, 2018 initial decision dismissing this appeal for lack of jurisdiction. IAF,
4
Tab 7, Initial Decision (ID) at 1, 6. Although the administrative judge found that
the appellant proved exhaustion of his administrative remedy with OSC, the
administrative judge further found that the appellant failed to nonfrivolously
allege that he made a protected disclosure or engaged in other protected activity.
ID at 2-6.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 2. The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
In his petition for review, the appellant claims that the administrative judge
failed to consider his response to the jurisdictional order.2 PFR File, Tab 2 at 4-5,
29. The appellant has included an email dated May 2, 2018, in which the
administrative judge admits that he incorrectly stated in the initial decision that
the appellant failed to respond to the jurisdictional order. Id. at 32; ID at 2. The
administrative judge explains in the email that he was unaware of the appellant’s
pleading when he issued the initial decision. PFR File, Tab 2 at 32.
The record shows that the appellant timely filed a jurisdictional response
on April 23, 2018.3 IAF, Tab 5. Accordingly, we agree with the appellant that
the administrative judge erred in failing to consider his response on the
dispositive issue of jurisdiction. Because the record has been fully developed on
the jurisdictional issue, we are able to consider the appellant’s response and to
make jurisdictional findings at this stage without remand.
2 In addition, the appellant reasserts on review the same or similar allegations that he
raised in his response to the jurisdictional order. Compare PFR File, Tab 2 at 5-29,
with IAF, Tab 5 at 4-25.
3 The administrative judge ordered the appellant to respond within 10 calendar days of
the date of the jurisdictional order, which was April 11, 2018. IAF, Tab 3 at 1, 8.
Because the filing deadline fell on Saturday, April 21, 2018, the appellant had until
Monday, April 23, 2018, to file a response. See 5 C.F.R. § 1201.23 (providing that, if a
filing deadline falls on a weekend or Federal holiday, the filing period includes the next
business day).
5
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden
of establishing the Board’s jurisdiction in an IRA appeal. 5 C.F.R. § 1201.57(b).
To establish jurisdiction in a typical IRA appeal, an appellant must prove by
preponderant evidence4 that he exhausted his administrative remedies before OSC
and make nonfrivolous allegations5 that: (1) he made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
protected activity was a contributing factor in the agency’s decision to take
or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A).
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016),
overruled on other grounds by Requena v. Department of Homeland Security ,
2022 MSPB 39. Once an appellant establishes jurisdiction over an IRA appeal,
he is entitled to a hearing on the merits of his claim, which he must prove by
preponderant evidence. Rebstock Consolidation v. Department of Homeland
Security, 122 M.S.P.R. 661, ¶ 9 (2015). For the following reasons, we reverse the
initial decision because we find that the appellant has established jurisdiction
over this IRA appeal.
The appellant proved by preponderant evidence that he exhausted his
administrative remedies before OSC.
Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3,
¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The Board, in Chambers v.
4 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
6
Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11, clarified the
substantive requirements of exhaustion. The requirements are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
The Board’s jurisdiction is limited to those issues that were previously raised
with OSC. However, appellants may give a more detailed account of their
whistleblowing activities before the Board than they did to OSC. Id. Appellants
may demonstrate exhaustion through their initial OSC complaint; evidence that
they amended the original complaint, including but not limited to OSC’s
determination letter and other letters from OSC referencing any amended
allegations; and, their written responses to OSC referencing the amended
allegations. Id. Appellants also may establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
they raised with OSC the substance of the facts in the Board appeal. Id.
Here, the appellant did not provide a copy of his OSC complaint or any
other written correspondence to OSC. Nor did he submit an affidavit, sworn
statement, or declaration under penalty of perjury explaining what claims he
raised before OSC, as ordered by the administrative judge. IAF, Tab 3 at 7-8.
However, as described above, the appellant submitted a letter from OSC
identifying the claims that he raised in his complaint, and he does not dispute
OSC’s characterizations of his complaint.6 IAF, Tab 1 at 15-16. Based on the
OSC letter, the administrative judge made a general finding that the appellant
proved by preponderant evidence that he exhausted his administrative remedy
with OSC regarding the alleged protected disclosures and personnel actions he
raised before OSC. ID at 2-3. Although we agree with this general finding, we
clarify and supplement the exhaustion analysis as follows.
6 We acknowledge that an IRA appeal is a de novo action, and the Board must therefore
rely on its independent analysis of the parties’ evidence and not on OSC’s
characterizations of the appellant’s allegations, which are not binding on the Board.
Bloom v. Department of the Army , 101 M.S.P.R. 79, ¶ 10 (2006). We only have
considered the appellant’s submission of the OSC letter as part of our exhaustion
analysis, and note that he has provided no other evidence of exhaustion.
7
Based on the appellant’s submission of the OSC letter, we find that he met
his burden of proving by preponderant evidence exhaustion of his OSC remedies
regarding his alleged disclosures in his November 21, 2014 email to the VA
Secretary and in his FOIA requests on January 30 and April 15, 2015, and the
alleged personnel actions of a delineation of duties and reprimand. IAF, Tab 1
at 15-16. However, we find that the appellant has failed to prove exhaustion of
his OSC remedies regarding the additional reprisal claims raised in this appeal
(i.e., alleged disclosures (1)-(2) and (6)-(7) and the alleged action of his removal
from the selection panel). In particular, the OSC letter does not mention any
alleged disclosures other than those made to the VA Secretary and in a FOIA
request. IAF, Tab 1 at 15-16; see Ward v. Merit Systems Protection Board ,
981 F.2d 521, 526 (Fed. Cir. 1992) (finding that in an IRA appeal the
administrative judge justifiably refused to consider an issue that the appellant had
not properly raised before OSC). Neither does the OSC letter discuss any
allegedly retaliatory actions beyond a delineation of duties and a disciplinary
reprimand. IAF, Tab 1 at 15-16; see Ward, 981 F.2d at 526. Although the OSC
letter describes the appellant’s alleged removal from a hiring panel as the subject
of his alleged disclosure to the VA Secretary, this does not suggest that he
claimed before OSC that the removal itself was a retaliatory action. IAF, Tab 1
at 15. Moreover, to the extent the appellant alleges that the delineation of duties
and reprimand were part of a pattern of harassment creating a hostile work
environment, we find that he has failed to prove that he exhausted his OSC
remedies regarding such a claim. IAF, Tab 5 at 5-6, 16; see Savage v.
Department of the Army , 122 M.S.P.R. 612, ¶ 23 (2015) (finding that the creation
of a hostile work environment is itself a personnel action), overruled in part by
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25; see also
Ward, 981 F.2d at 526.
8
The appellant has nonfrivolously alleged that he made a protected disclosure that
was a contributing factor in a personnel action.
The next jurisdictional inquiry is whether the appellant has made a
nonfrivolous allegation that he made a protected disclosure or engaged in a
protected activity that was a contributing factor in a personnel action. See
Corthell, 123 M.S.P.R. 417, ¶ 8. A nonfrivolous allegation of a protected
disclosure is an allegation of facts that, if proven, would show that the appellant
disclosed a matter that a reasonable person in his position would believe
evidenced one of the categories of wrongdoing specified in 5 U.S.C.
section 2302(b)(8). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 6
(2016). The test to determine whether a putative whistleblower has a reasonable
belief in the disclosure is an objective one: whether a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions of the agency evidenced a
violation of law, rule, or regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety. Id.
To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant only need raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure or activity was one factor that tended to affect the
personnel action in any way. See id., ¶ 13. Under the knowledge/timing test, an
appellant may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official who took the personnel action knew of the disclosure or
activity and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the personnel action. See 5 U.S.C. § 1221(e)(1); Salerno,
123 M.S.P.R. 230, ¶ 13.
9
Here, the appellant alleged that his disclosures concerning the selection
process for the Chief of Psychology Service position evidenced violations of a
law, rule, or regulation, and an abuse of authority. IAF, Tab 5 at 18-21.
Regarding his purported disclosure to the VA Secretary, the appellant asserted the
following specific details: on November 21, 2014, he emailed the VA Secretary
regarding the Assistant ACOS’s possible abuse of authority in undermining the
selection process and accused the Assistant ACOS of exercising “command
influence” to achieve the end she had in mind and he stated that her selection was
not one that would serve the best interests of TVAMC; and the VHA Acting
Deputy Chief of Staff responded to his email on December 10, 2014, and placed
the TVAMC Psychology Service on notice of his “grievances .” Id. at 7, 15. In
addition, the appellant submitted a copy of his email to the VA Secretary, which
itself included excerpts of his emails with the ACOS and the Assistant ACOS that
documented his appointment to and removal from the selection panel. Id.
at 27-33. In his email to the VA Secretary, the appellant expressed his belief that
the Assistant ACOS had a “hidden agenda” because she was not conducting the
selection process in accordance with standard procedures and with full
transparency. Id. at 33.
Based on the above, we find that the appellant has made a nonfrivolous
allegation that his purported disclosure to the VA Secretary regarding the
selection process for the Chief of Psychology Service position constitutes a
protected disclosure. Specifically, we find that the appellant has nonfrivolously
alleged that a reasonable person in his position could believe that his email to the
VA Secretary disclosed the Assistant ACOS’s abuse of authority in exercising her
power as the selecting official and chair of the selection committee to manipulate
the selection process. See Mc Corcle v. Department of Agriculture , 98 M.S.P.R.
363, ¶ 24 (2005) (stating that an “abuse of authority” occurs when there is an
arbitrary or capricious exercise of power by a Federal official or employee that
adversely affects the rights of any person or that results in personal gain or
10
advantage to himself or to preferred other persons). We further find that the
appellant has nonfrivolously alleged that a reasonable person could believe
that his email to the VA Secretary contained information evidencing a violation
of a law, rule, or regulation requiring impartial selection procedures . See
Swanson v. General Services Administration , 110 M.S.P.R. 278, ¶ 11 (2008)
(observing that any doubt or ambiguity as to whether the appellant has made a
nonfrivolous allegation of a reasonable belief should be resolved in favor of a
finding that jurisdiction exists). Although the administrative judge stated in the
initial decision that the appellant’s alleged disclosures concerned his own
personal grievances against the agency and that he did not have an altruistic
motive in making them, ID at 5-6, an employee’s motive for making a disclosure
does not preclude it from being protected under 5 U.S.C. § 2302(b)(8), see
5 U.S.C. § 2302(f)(1)(C); Ayers v. Department of the Army , 123 M.S.P.R. 11,
¶ 20 (2015) (explaining that, although an appellant’s motive in making a
disclosure may be relevant to the determination of a reasonable belief, a
disclosure is not excluded from protection based on the appellant’s motive).
Moreover, we find that the appellant has nonfrivolously alleged that a
delineation of duties that significantly increased his workload and a reprimand
are personnel actions. IAF, Tab 5 at 16; see 5 U.S.C. § 2302(a)(2)(A)(xii)
(defining “personnel action” as “any other significant change in
duties, responsibilities, or working conditions”); see also, e.g.,
Sutton v. Department of Justice , 94 M.S.P.R. 4, ¶ 12 (2003) (finding that a letter
of reprimand was a “personnel action” under 5 U.S.C. § 2302(a)(2)(A)(iii) as “an
action under chapter 75 of this title or other disciplinary or corrective action”),
aff’d, 97 F. App’x 322 (Fed. Cir. 2004). We further find that the appellant has
nonfrivolously alleged that his supervisor and the Assistant ACOS had knowledge
of his purported disclosure to the VA Secretary shortly before they issued him a
11
delineation of duties and a reprimand in April and September 2015, respectively.7
IAF, Tab 5 at 5-7. Therefore, under the knowledge/timing test, we find that the
appellant has nonfrivolously alleged that his purported disclosure to the VA
Secretary regarding the selection process for the Chief of Psychology Service
position was a contributing factor towards the delineation of his duties that
increased his workload and his reprimand. See Salerno, 123 M.S.P.R. 230, ¶ 14
(observing that the Board has held that a personnel action taken within
approximately 1 to 2 years of the appellant’s disclosures satisfies the timing
component of the knowledge/timing test) .
However, we find that the appellant has failed to make a nonfrivolous
allegation that his purported FOIA requests constitute protected disclosures. In
particular, the appellant made the following assertions regarding his purported
FOIA requests: on January 30, 2015, he filed a request under the FOIA/Privacy
Act for all information related to the selection process for the Chief of
Psychology Service position; on March 24, 2015, he received a partial response to
his request; on April 15, 2015, he submitted an additional request to the Acting
Director of TVAMC because the original response did not meet Federal guideline
requirements; and his request to the Acting Director was denied and was
forwarded to OGC, which has since accepted responsibility for investigating the
issue of noncompliance. IAF, Tab 5 at 7-8, 15. The appellant’s assertions fail to
specify what, if any, information was disclosed in his purported FOIA requests.
7 The record contains a memorandum dated September 11, 2015, that the appellant
allegedly submitted to the TVAMC Acting Director. IAF, Tab 5 at 8, 35. In this
memorandum, the appellant asserts that he filed a complaint with the VA Secretary
“specifically citing ‘command influence’ (abuse of authority),” and that the complaint
was forwarded to TVAMC. Id. at 35. The appellant further asserts in the memorandum
that he received a response that did not resolve his complaint and to which he objected.
Id. Based on the appellant’s memorandum and his assertion that the VHA Acting
Deputy Chief of Staff responded to his complaint on December 10, 2014, and placed the
TVAMC Psychology Service on notice of his grievances, we find that the appellant has
made a nonfrivolous allegation that his supervisor and the Assistant ACOS had
knowledge of his purported disclosure to the VA Secretary by December 10, 2014. Id.
at 7, 35.
12
Therefore, we find that the appellant’s vague assertions regarding his purported
FOIA requests fail to rise to the level of a nonfrivolous allegation of a protected
disclosure.8 See El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015)
(stating that vague, conclusory, unsupported, and pro forma allegations of alleged
wrongdoing do not meet the nonfrivolous pleading standard needed to establish
the Board’s jurisdiction over an IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir.
2016).
Accordingly, we find that the appellant has established jurisdiction over his
claim that the delineation of duties, which resulted in an increase in his workload,
and reprimand were retaliation for making a protected disclosure to the VA
Secretary regarding the selection process for the Chief of Psychology Service
position. Thus, we remand this IRA appeal for a hearing on the merits of his
reprisal claim. See Rebstock Consolidation , 122 M.S.P.R. 661, ¶ 9. In that
proceeding, the appellant shall bear the burden of proving by preponderant
evidence that he made a protected disclosure that was a contributing factor in a
personnel action. Aquino v. Department of Homeland Security , 121 M.S.P.R. 35,
¶ 10 (2014).
8 Moreover, we find that the appellant has failed to make a nonfrivolous allegation that
his purported FOIA requests constitute protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). In particular, even if the appellant’s purported
April 15, 2015 request was an appeal of the agency’s insufficient response to his
original FOIA request for information related to the selection process, he does not claim
that he sought to remedy whistleblower reprisal in such a FOIA appeal. Thus, we find
that he has failed to nonfrivolously allege that such a FOIA appeal constitutes protected
activity described under 5 U.S.C. § 2302(b)(9)(A)(i). Cf. Mattison v. Department of
Veterans Affairs, 123 M.S.P.R. 492, ¶¶ 7-8 (2016) (finding that the appellant’s claim of
retaliation for filing a FOIA appeal in which he did not seek to remedy whistleblower
reprisal arose under 5 U.S.C. § 2302(b)(9)(A)(ii)).
13
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. | Ball_James_C_AT-1221-18-0376-W-1_Remand_Order.pdf | 2024-02-02 | JAMES C. BALL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-18-0376-W-1, February 2, 2024 | AT-1221-18-0376-W-1 | NP |
2,438 | https://www.mspb.gov/decisions/nonprecedential/Landry_KenneitaSF-3443-19-0173-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNEITA LANDRY,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-3443-19-0173-I-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
enneita Landry , Emeryville, California, pro se.
General Counsel , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the agency’s decision to rescind
its tentative offer of employment. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant reasserts her argument that the agency
violated her civil rights by relying on a prior conviction that was dismissed.
Petition for Review (PFR) File, Tab 1 at 3; Initial Appeal File (IAF), Tab 1 at 6.
She further argues that the Board should apply the law under the Civil Service
Reform Act regarding convictions and the statute of limitations. PFR File, Tab 1
at 4. In addition, she argues that the Board should overturn the agency’s decision
to rescind the job offer and the agency’s determination that she did not pass a
pre-employment screening because of a prior conviction that was paid in full and
dismissed.2 Id.
The administrative judge adequately addressed the appellant’s civil rights
argument in the initial decision, explaining that claims of prohibited personnel
practices are not an independent source of Board jurisdiction and that the Board
lacks jurisdiction over them absent an otherwise appealable action. IAF, Tab 9,
Initial Decision (ID) at 10 n.6; see Davis v. Department of Defense , 105 M.S.P.R.
2 Given the appellant’s pro se status, we liberally interpret her petition for review by
assuming that she means the agency’s pre-employment screening process when she
refers to a “security clearance.” PFR File, Tab 1 at 4; see Melnick v. Department of
Housing and Urban Development , 42 M.S.P.R. 93, 97-98 (1989) (observing that the
pleadings of pro se parties should be interpreted liberally), aff’d, 899 F.2d 1228
(Fed. Cir. 1990) (Table).2
604, ¶ 16 (2007); 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). Moreover, we find that the
appellant’s remaining arguments on the merits of the appealed matter fail to
address the dispositive jurisdictional issue; thus, they do not provide a reason to
disturb the initial decision. See, e.g., Sapla v. Department of the Navy ,
118 M.S.P.R. 551, ¶ 7 (2012) (finding that the appellant’s arguments on the
merits of the appeal were not relevant to the jurisdictional question at issue
before the Board).
Accordingly, we affirm the initial decision.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.
3 Because we agree with the administrative judge’s finding that the appellant failed to
prove that the agency subjected her to an appealable suitability action, ID at 9-10, we
need not consider what would be the effect on this case, if any, of the National Defense
Authorization Act of 2016, Pub. L. No. 114-92, § 1086, and its amendment to 5 U.S.C.
§ 7512, which states, “This subchapter . . . does not apply to— . . . ‘(F) a suitability
action taken by the Office [of Personnel Management] under regulations prescribed by
the Office, subject to the rules prescribed by the President under this title for the
administration of the competitive service.’”
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and 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.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
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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Landry_KenneitaSF-3443-19-0173-I-1_Final_Order.pdf | 2024-02-02 | KENNEITA LANDRY v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-3443-19-0173-I-1, February 2, 2024 | SF-3443-19-0173-I-1 | NP |
2,439 | https://www.mspb.gov/decisions/nonprecedential/Donnelly_Kevin_M_DC-0752-17-0023-I-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN M. DONNELLY,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-0752-17-0023-I-3
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
K
evin M. Donnelly , Worthington, Ohio, pro se.
Chief, Employment Law , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, the appellant challenges the
administrative judge’s findings of fact and conclusions regarding the sustained
charges, including her assessment as to the reasonableness of the penalty.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Donnelly_Kevin_M_DC-0752-17-0023-I-3_Final_Order.pdf | 2024-02-02 | KEVIN M. DONNELLY v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0752-17-0023-I-3, February 2, 2024 | DC-0752-17-0023-I-3 | NP |
2,440 | https://www.mspb.gov/decisions/nonprecedential/Davis_Larry_D_CH-0845-18-0459-I-3_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY D. DAVIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0845-18-0459-I-3
DATE: February 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
L
arry D. Davis , Indianapolis, Indiana, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely refiled without good cause shown for the delay.
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On September 19, 2011, the appellant entered into Federal Employees’
Retirement System (FERS) disability retirement from the U.S. Postal Service.
Davis v. Office of Personnel Management , MSPB Docket No. CH-0845-18-0459-
I-1, Initial Appeal File (IAF), Tab 1 at 24. On November 7, 2017, the Office of
Personnel Management (OPM) notified the appellant that he had been overpaid
$23,545.02 in interim pay, which it proposed to collect through withholdings
from his annuity. Id. at 2-11. The appellant timely requested reconsideration, but
OPM began the proposed withholdings anyway without issuing any further
decision on the matter.2 Id. at 12-18, 42. In April and May 2018, the appellant
requested in writing that OPM stop the withholdings, but it does not appear that
OPM responded. Id. at 42-45.
On July 3, 2018, the appellant filed a Board appeal and requested a hearing.
IAF, Tab 1 at 46, Tab 3 at 1, 5-6. He sought an explanation of the overpayment
determination as well as resolution of ongoing disputes concerning deductions for
life and health insurance. IAF, Tab 3 at 3-6. OPM moved to dismiss the appeal
for lack of jurisdiction because it had not yet issued a final decision on the
overpayment. IAF, Tab 7. The administrative judge convened a status
conference, during which OPM stated that it was holding its final decision in
abeyance due to the appellant’s premature Board appeal. IAF, Tab 10 at 1. OPM
further stated that, if the Board appeal were dismissed without prejudice, it
expected a final reconsideration decision on all matters to be issued within
45 days. Id. The parties agreed to a dismissal without prejudice. Id. at 2.
Accordingly, on September 12, 2018, the administrative judge issued an initial
decision dismissing the appeal without prejudice to refiling within 30 days after
the appellant’s receipt of OPM’s reconsideration decision. IAF, Tab 11, Initial
Decision at 2. Alternatively, if the appellant did not receive a reconsideration
2 OPM’s notice of overpayment stated that “[c]ollection actions will be suspended at all
levels of review if a timely request [for reconsideration] is received.” IAF, Tab 1 at 4.2
decision from OPM, the appeal would be automatically refiled in 90 days. Id.
OPM did not issue a reconsideration decision, and the appeal was automatically
refiled on December 12, 2018. Davis v. Office of Personnel Management , MSPB
Docket No. CH-0845-18-0459-I-2, Appeal File (I-2 AF), Tabs 1-2.
On February 19, 2019, OPM filed a pleading, stating that it had determined
that its November 7, 2017 initial decision reflecting a debt of $23,545.02 was in
error. I-2 AF, Tab 6 at 4-5. It further stated that it had ceased collections and
refunded the collected money to the appellant. Id. at 5, 10. It appears that OPM
maintained the validity of the debt but that it satisfied the debt using
erroneously-charged life insurance deductions and unpaid accrued annuity that it
otherwise would have refunded to the appellant. Id. at 5.
The administrative judge convened another status conference, during which
the appellant stated that OPM’s pleading did not address another overpayment
notice that he had received regarding his health benefits and that he wished to
have a summary of all payments that he received from OPM and the Social
Security Administration so he could ensure that the amounts were correct. I-2
AF, Tab 9 at 1. The parties consented to a dismissal without prejudice to allow
OPM to address the health benefits overpayment issue, allow the appellant to
review the summary of payments, and give OPM time to address any further
questions that the appellant might have. Id. at 1-2. On March 6, 2019, the
administrative judge issued an initial decision dismissing the appeal without
prejudice, with a refiling deadline of September 6, 2019. I-2 AF, Tab 10, Initial
Decision (I-2 ID).
On September 9, 2019, the appellant refiled his appeal, asserting that OPM
had been unresponsive to his requests for information. Davis v. Office of
Personnel Management , MSPB Docket No. CH-0845-18-0459-I-3, Appeal File
(I-3 AF), Tab 1 at 3-4, 7. The administrative judge issued a timeliness order,
notifying the appellant that his refiled appeal appeared to be untimely, and
informing him of his burden to prove that it was either timely or there was good3
cause for the delay. I-3 AF, Tab 3. The appellant responded, stating that he
missed the deadline because he was waiting in hopes that he would receive a final
decision from OPM. I-3 AF, Tab 4. The administrative judge issued an initial
decision, finding that the appeal was untimely, that the appellant failed to
establish good cause to waive the refiling deadline, and dismissing the appeal on
that basis. I-3 AF, Tab 6, Initial Decision (I-3 ID).
The appellant has filed a petition for review, addressing the merits of his
claim, arguing that OPM has still not issued a final decision in his case, and
asserting that the administrative judge should have instituted an automatic
refiling date as she did for the first dismissal without prejudice. Petition for
Review (PFR) File, Tab 1. OPM has filed a response to the petition for review,
and the appellant has filed a reply to OPM’s response. PFR File, Tabs 4, 6.
ANALYSIS
The appellant has shown good cause for untimely refiling his appeal.
It is undisputed that the appellant refiled his appeal 3 days past the
deadline. Therefore, the only issue is whether the filing deadline should be
waived. In her initial decision, the administrative judge considered the factors
that are generally applicable in determining whether to waive a filing deadline.
I-3 ID at 3-5; see 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). Although the
administrative judge did not err in considering these general standards as part of
her overall determination, see Baumunk v. Department of Health and Human
Services, 69 M.S.P.R. 622, 625 (1996), it does not appear that she accounted for
the more specific factors that the Board has identified for determining whether
good cause exists for excusing an untimely refiled appeal of a matter previously
dismissed without prejudice. These include the following: the appellant’s pro se
status; the timeliness of the initial appeal; the appellant’s demonstrated intent
throughout the proceedings to refile the appeal; the length of the delay in refiling;4
confusion surrounding and arbitrariness of the refiling deadline; the number of
prior dismissals without prejudice; the agency’s failure to object to the dismissal
without prejudice; and the lack of prejudice to the agency in allowing the refiled
appeal. Sherman v. U.S. Postal Service , 118 M.S.P.R. 265, ¶ 9 (2012).
In this case, we find that the appellant has been proceeding pro se
throughout the appeal process, there were only two prior dismissals without
prejudice, the 3-day filing delay was minimal, and OPM expressly consented to
the dismissal without prejudice. I-2 AF, Tab 9; see Brown v. Office of Personnel
Management, 86 M.S.P.R. 417, ¶ 8 (2000) (finding the appellant’s 5-day refiling
delay to be “relatively de minimis”). In addition, it has been clear throughout the
proceedings that the appellant intended to refile his appeal if he was not satisfied
with OPM’s final decision and accounting of his annuity payments. See
Hodges v. Office of Personnel Management , 101 M.S.P.R. 212, ¶¶ 2, 12 (2006)
(concluding it was clear that an appellant intended to refile her appeal of OPM’s
discontinuation of her disability retirement benefits if her alleged involuntary
retirement appeal against her former employing agency was not successful). Nor
is there any indication that OPM was prejudiced by the delay. Unlike adverse
action cases, in which an expedient response to an appeal enables the agency to
move forward with the management of its programs, in a retirement benefits
appeal, there is no such need for finality to compete with an appellant’s right to a
decision on the merits. Karker v. Office of Personnel Management , 80 M.S.P.R.
235, ¶ 9 (1998); Edney v. Office of Personnel Management , 79 M.S.P.R. 60, ¶ 6
(1998). The Board has therefore placed a high priority on resolving retirement
benefits cases on the merits and has found that any doubt about whether to waive
a filing deadline for an adjudication on the merits should be resolved in favor of
the appellant. Lamb v. Office of Personnel Management , 110 M.S.P.R. 415, ¶ 10
(2009). Regarding the timeliness of the initial appeal, it was not untimely. In
fact, OPM characterized the appeal below as “premature” because the appellant
filed it before OPM had issued a reconsideration decision. IAF, Tab 7 at 4-5. 5
We find that the only factor that weighs against waiving the filing deadline
is the lack of any confusion surrounding that deadline. The refiling deadline in
this case was clear; the administrative judge stated plainly in her initial decision
that “[t]he appeal must be refiled by September 6, 2019 or it will be considered
untimely.”3 I-3 ID at 2. There is nothing in the record that indicates to us that
the appellant was confused about the deadline, and we see nothing in the deadline
or the way that it was expressed that lends itself to misinterpretation.
The appellant argues that the administrative judge should have set an
automatic refiling date, as she did with the first dismissal without prejudice. PFR
File, Tab 1 at 6; IAF, Tab 11 at 2. We disagree. The administrative judge, and
apparently both parties, hoped that intervening events might resolve the
appellant’s case without further involvement from the Board. I-2 AF, Tab 9. The
Board has recognized such administrative efficiency as a basis for an
administrative judge to exercise her wide discretion to dismiss an appeal without
prejudice. Thomas v. Department of the Treasury , 115 M.S.P.R. 224, ¶ 7 (2010).
We are mindful that OPM was the architect of the conditions that led to the
untimely refiling, first by initiating collections despite the appellant’s request for
reconsideration, then by failing to issue a reconsideration decision within the
initial 90-day dismissal without prejudice period, much less within the 45-day
time period that it anticipated, and finally by failing to issue a reconsideration
decision and final accounting within the 6 months that the administrative judge
allotted during the second dismissal without prejudice period. IAF, Tab 1
at 12-18, 42, Tab 10; I-2 ID at 1-2. We find that, under the particular facts of this
case, it would be inequitable to extinguish the appellant’s statutory right of
appeal at his first misstep when that misstep was occasioned by OPM’s continued
delays in issuing a decision.
3 The 6-month refiling deadline was, however, more or less arbitrary. See Jackson v.
Office of Personnel Management , 89 M.S.P.R. 302, ¶ 10 (2001) (waiving the refiling
deadline after weighing, among other factors, that the refiling deadline was “relatively
arbitrary”). 6
Considering the totality of the circumstances, we find good cause to waive
the refiling deadline for this appeal. See Sherman, 118 M.S.P.R. 265, ¶¶ 10-13
(finding good cause for an 81-day delay in refiling despite the length of the delay
and three prior dismissals without prejudice because the appellant was pro se,
timely filed his initial appeal, and did not indicate any intention to abandon his
appeal; the agency did not assert it would be prejudiced by allowing the refiled
appeal to proceed; and there was confusion surrounding the refiling deadline).
Shenwick v. Department of State , 90 M.S.P.R. 192, ¶¶ 8-11 (2001) (waiving a
16-day delay in refiling an individual right of action (IRA) appeal when the
appellant’s initial appeal was timely, she expressed no intent to abandon her IRA
appeal, she refiled her IRA appeal at the same time she filed a removal appeal so
that the two appeals could be adjudicated together, and the agency did not claim it
would be prejudiced by the waiver). While reminding the appellant of the
importance of attending to the orders and deadlines set by the administrative
judge, we waive the refiling deadline this time and remand the appeal for further
adjudication.
On remand, the administrative judge must make a determination as to whether the
Board has jurisdiction over this appeal.
On remand, the administrative judge should determine whether the Board
has jurisdiction over the appeal and, if so, make a decision on the merits. At this
point, there are unresolved issues that may affect the Board’s jurisdiction.
OPM asserted below that it has not issued a final decision on the
overpayment “at this time” because the alleged overpayment no longer exists. I -2
AF, Tab 6 at 5-6. The meaning of this statement is unclear. We cannot tell
whether OPM still intends to issue a final decision or whether the pleading itself
should be deemed OPM’s final decision on the matter. See Okello v. Office of
Personnel Management , 120 M.S.P.R. 498, ¶ 14 (2014) (recognizing that OPM is
deemed to have issued an appealable decision when it has (1) issued a
reconsideration (or final) decision, (2) issued an initial decision without7
reconsideration rights, or (3) refused or improperly failed to issue a final
decision); Triplett v. Office of Personnel Management , 100 M.S.P.R. 571, ¶ 5
(2005) (explaining that when OPM has rescinded its reconsideration decision
after the appellant files a Board appeal, and does not issue a replacement, its
silence is an implicit negative reconsideration decision, and Board proceedings
may recommence). OPM does not contend that an overpayment never existed.
Rather, it contends that it has satisfied the overpayment by other means. I-2 AF,
Tab 6 at 5-6. OPM may have ceased collections and refunded the withholdings,
but its action of satisfying the alleged overpayment by applying prior annuity
underpayments and a retroactive refund of life insurance premiums still affected
the appellant’s rights and interests under FERS. Id. at 5, 12-18; see 5 U.S.C.
§ 8461(e)(1) (codifying an annuitant’s right to file a Board appeal of an action
affecting his rights or interests under FERS). Indeed, the appellant appears to be
arguing that the life insurance premiums should have been refunded directly to
him. PFR File, Tab 1 at 6.
Based on the appellant’s petition for review there appears to be other,
possibly related, matters in dispute. First, the appellant appears to be arguing that
he is due unpaid benefits from April 12, 2009, to January 1, 2011. PFR File, Tab
1 at 3. He also appears to argue that OPM is responsible for a $22,926.79 health
insurance payment as assessed by the Mail Handlers Benefit Plan, $13,083.03 of
which must be repaid before his insurance is reinstated. Id. at 4, 6. It is not clear
that these matters are within the Board’s jurisdiction, particularly the alleged
health insurance overpayment, see Chamblin v. Office of Personnel Management ,
112 M.S.P.R. 266, ¶ 7 (2009) (finding that Federal employee health insurance and
life insurance programs generally are outside the Board’s jurisdiction), but we
find that it would be more appropriate for the administrative judge to make these
jurisdictional findings in the first instance. On remand, the administrative judge
should determine whether these or any other matters are still in dispute, and if so,
which matters are within the Board’s jurisdiction.8
Although the appellant filed several previous appeals concerning his FERS
annuity benefits, none of his prior appeals resulted in a decision on the merits;
they were all dismissed for lack of jurisdiction because OPM had either not
issued, or had subsequently rescinded, its final decision. Davis v. Office of
Personnel Management , MSPB Docket No. CH-0841-15-0102-I-1; Davis v. Office
of Personnel Management , MSPB Docket No. CH-0841-17-0036-I-1; Davis v.
Office of Personnel Management , MSPB Docket No. CH-0845-18-0212-I-1.
Thus, his prior appeals do not appear to preclude his current appeal. However,
depending on how the record and issues develop on remand, the administrative
judge may wish to revisit whether these prior jurisdictional determinations
collaterally estop the appellant from asserting jurisdiction in the instant appeal.
See Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 13 (2016)
(explaining when collateral estoppel may be grounds for dismissing an appeal for
lack of jurisdiction), aff’d sub nom. Bryant v. Merit Systems Protection Board ,
878 F.3d 1320 (Fed. Cir. 2017).
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 | Davis_Larry_D_CH-0845-18-0459-I-3_Remand_Order.pdf | 2024-02-02 | LARRY D. DAVIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-18-0459-I-3, February 2, 2024 | CH-0845-18-0459-I-3 | NP |
2,441 | https://www.mspb.gov/decisions/nonprecedential/Niskey_LawrenceDC-0752-18-0153-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE NISKEY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-18-0153-I-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Niskey , Easton, Maryland, pro se.
Felippe Moncarz , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as barred under the doctrine of res judicata. On petition for
review, the appellant reasserts that his removal following the revocation of his
security clearance in 2007 was not effected in accordance with the minimum
statutory and constitutionally guaranteed procedures. The appellant’s removal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 the subject of two previous Board appeals, the first filed in 2007 and the
second filed in 2010. See Niskey v. Department of Homeland Security , MSPB
Docket No. DC-0752-08-0036-I-1; Niskey v. Department of Homeland Security ,
MSPB Docket No. DC-0752-10-0503-I-1. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
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 | Niskey_LawrenceDC-0752-18-0153-I-1_Final_Order.pdf | 2024-02-02 | LAWRENCE NISKEY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-18-0153-I-1, February 2, 2024 | DC-0752-18-0153-I-1 | NP |
2,442 | https://www.mspb.gov/decisions/nonprecedential/McLaughlin_JamesDC-831E-18-0074-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES MCLAUGHLIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-831E-18-0074-I-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
aymond C. Fay , Esquire, Washington, D.C., for the appellant.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) denying his request for retirement benefits under the Civil Service
Retirement System. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the administrative judge erroneously relied on Rainone v. Office of
Personnel Management , 104 M.S.P.R. 423 (2007), we AFFIRM the initial
decision.
In the initial decision, the administrative judge cited Rainone for the
proposition that OPM is entitled to rely on the information contained in an
individual retirement record (IRR) unless and until the IRR is amended by the
employing agency. Initial Appeal File, Tab 9, Initial Decision at 2. However, in
Conner v. Office of Personnel Management , 120 M.S.P.R. 670, ¶ 6 (2014), aff’d,
620 F. App’x 892 (Fed. Cir. 2015), the Board overruled Rainone, holding instead
that the Board has jurisdiction to review the accuracy and completeness of IRRs
in the context of appeals from OPM final decisions that rely on them. In light of
Conner, we have considered the appellant’s claim that, contrary to the dates of
service listed in the IRR, he was still working for the National Park Service
(NPS) when he received the refund of his contributions. Petition for Review
(PFR) File, Tab 1 at 1; Hearing Compact Disc (testimony of the appellant).
Nonetheless, we find that the appellant has not provided a basis for finding that
the dates of service listed in the IRR were incorrect. See Conner, 120 M.S.P.R.
670, ¶ 7. 2
We also have considered the appellant’s assertion that he was “very
depressed” and “emotionally disturbed” during his employment with the NPS and
that he is currently in treatment for depression. PFR File, Tab 1 at 1 -3. The
Board has held that receipt of a refund of retirement contributions will not void
annuity rights if the individual was mentally incompetent at the time he applied
for and received the refund. See Wadley v. Office of Personnel Management ,
103 M.S.P.R. 227, ¶ 7 (2006). However, the appellant has not presented medical
evidence showing that he was mentally incompetent during the relevant time
period. Cf. Arizpe v. Office of Personnel Management , 88 M.S.P.R. 463, ¶ 9
(2001) (holding that in determining whether an applicant for disability retirement
is entitled to waiver of the deadline based on mental incompetence, the Board
requires medical evidence supporting subjective opinions of mental
incompetence).
The appellant also alleges on review that unspecified records were stolen.
PFR File, Tab 1 at 4. He attaches an undated letter from OPM concerning a cyber
intrusion that resulted in the theft of background investigation records and a
March 17, 2006 letter from Georgetown University concerning another cyber
intrusion that may have led to the exposure of his personal information. Id. at 5,
7-8. However, the appellant has not shown that these documents were previously
unavailable despite his due diligence. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980). In any event, he has not explained what the alleged
missing records might contain or how they would warrant a different result.
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
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
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 | McLaughlin_JamesDC-831E-18-0074-I-1_Final_Order.pdf | 2024-02-02 | JAMES MCLAUGHLIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831E-18-0074-I-1, February 2, 2024 | DC-831E-18-0074-I-1 | NP |
2,443 | https://www.mspb.gov/decisions/nonprecedential/Quiros_HildauraAT-0831-18-0214-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HILDAURA QUIROS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-18-0214-I-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hildaura Quiros , Miami, Florida, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM),
denying her application for a Civil Service Retirement System (CSRS) survivor
annuity. On petition for review, the appellant reasserts that she is entitled to a
CSRS survivor annuity because she was the decedent’s common law wife, 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).
decedent designated her as the beneficiary of his estate, and they had three
children together, two of which were “underage.” Petition for Review (PFR) File,
Tab 1 at 4-6. She also argues, for the first time on review, that the decedent “sent
in” a “survivor benefit election change form ,” in which he “chang[ed] the option
of having [his former spouse] as his survivor beneficiary before his death” and
that OPM discriminated against her in denying her a survivor annuity. Id. She
further claims that she mailed the referenced change of election form, court order,
and “documentation” supporting her status as the decedent’s common law wife to
the Board in support of her petition for review. PFR File, Tab 1 at 4-6, Tab 5
at 3.
¶2Generally, 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).
¶3The appellant bears the burden of proving her entitlement to the survivor
annuity that she seeks by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(b)(2)(ii). As the administrative judge assumed without finding that the
decedent and the appellant were legally married, the relevant dispute is whether
the administrative judge erred in finding that the decedent did not elect a survivor2
annuity in the appellant’s favor. Initial Appeal File (IAF), Tab 11, Initial
Decision (ID) at 3-4. The appellant argues that the evidence she mailed to the
Board with her petition for review proves that he made such an election. PFR
File, Tab 1 at 4-6. However, the Board has no record of receiving the referenced
mailing. On review, the Board has received the appellant’s electronically filed
petition for review and reply to the agency’s response, neither of which contains
the referenced documents. PFR File, Tabs 1, 5. The appellant contends that the
tracking information she submits with her reply shows that the Board received the
mailing. PFR File, Tab 5 at 3. We disagree. The tracking receipt merely reflects
that a package was mailed from Panama City, Panama, to Washington, D.C.; it
does not contain a delivery address, or any other recipient information showing
the package was mailed to the Board. Id. at 4; see Gaydon v. U.S. Postal Service ,
62 M.S.P.R. 198, 202-03 (1994) (finding that the appellant was not entitled to the
rebuttable presumption that his petition for review was received by the Board
because he failed to present specific, credible evidence that it was properly
addressed to the Board with postage prepaid and placed in the U.S. Postal Service
mail stream).
¶4Moreover, the appellant failed to provide the purported evidence below,
despite being notified of her burden and being afforded an opportunity to
supplement the record before it closed. IAF, Tab 10. Under 5 C.F.R. § 1201.115,
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. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980). The appellant has not explained why she failed to
submit the documentation before the close of the record, even though she asserts
they were in her possession before the decedent’s death. PFR File, Tab 1 at 4.
Furthermore, although the appellant apparently was aware that the additional
documents were not in the record, she did not attach them to her reply or file a
motion for leave to supplement the record on review. PFR File, Tab 5 at 3; see3
5 C.F.R. § 1201.114(a)(5), (k). We therefore find that the appellant has not acted
with due diligence in attempting to provide this additional evidence.
Accordingly, the appellant’s arguments do not provide a basis for review.2
¶5As for the appellant’s discrimination claim, she raises it for the first time on
review. PFR File, Tab 1 at 5. Generally, the Board will not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980).
We find that the appellant has not made that necessary showing and decline to
consider this new allegation.
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 In finding that the appellant was not entitled to a survivor annuity, the administrative
judge relied on the definition of a widow under the Federal Employee Retirement
System (FERS), 5 U.S.C. § 8441(2)(A), rather than the provision under CSRS, 5 U.S.C.
§ 8341(a)(1). ID at 3. The FERS and CSRS provisions are indistinguishable. Compare
5 U.S.C. § 8341(a), with 5 U.S.C. § 8441(2)(A). Nevertheless, whether the appellant
qualifies as a widow is irrelevant in the absence of a valid election for a survivor
annuity in her favor, as explained above. See 5 U.S.C. § 8341(b)(1). Thus, we find that
the administrative judge’s error in relying on provisions applicable to FERS was not
prejudicial to the appellant’s substantive rights and does not form a basis for reversing
the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984); see also Larson v. Office of Personnel Management , 93 M.S.P.R. 433, ¶¶ 6-7
(2003) (finding that an administrative judge’s error in applying a CSRS legal standard,
when the appellant was covered under FERS, did not form a basis for reversing the
initial decision when the error did not affect the appellant’s substantive rights).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
WASHINGTON, D.C.9 | Quiros_HildauraAT-0831-18-0214-I-1_Final_Order.pdf | 2024-02-02 | HILDAURA QUIROS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-18-0214-I-1, February 2, 2024 | AT-0831-18-0214-I-1 | NP |
2,444 | https://www.mspb.gov/decisions/nonprecedential/Quinlan_Neil_F_PH-1221-17-0247-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEIL FREDERICK QUINLAN, SR.,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-1221-17-0247-W-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
eil Frederick Quinlan, Sr. , New Castle, Delaware, pro se.
Lida V. KiaNoury , Esquire, and Wayne Bober , Esquire, Philadelphia,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action 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 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the U.S. Code. Our decision to affirm the initial decision would be the same under
both pre- and post-NDAA law.
On petition for review, the appellant argues that the initial decision contains
erroneous findings of material fact and that the administrative judge gave
insufficient weight to his claims of reprisal. 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.3 Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify one factor of the agency’s burden of proof, we AFFIRM the
initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
In finding that the agency showed by clear and convincing evidence that it
would have taken the same personnel actions absent the appellant’s
whistleblowing, the administrative judge properly relied on the factors set forth in
Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999).
Quinlan v. Department of Defense , MSPB Docket No. PH-1221-17-0247-W-1,
Initial Decision (ID) at 19-24 (Jan. 18, 2018). Regarding Carr factor #3, the
administrative judge found that the appellant had not identified any other
3 The appellant includes two documents with his petition for review—an October 2008
email and a July 2008 memorandum. Petition for Review File, Tab 1 at 5-8. We find
that these documents do not warrant disturbing the initial decision because the appellant
has not shown that they were unavailable before the record closed despite his due
diligence or that they are of sufficient weight to warrant a different outcome. See
Turner v. U.S. Postal Service , 123 M.S.P.R. 640, ¶ 13 n.2 (2016), aff’d per curium ,
681 F. App’x 934 (Fed. Cir. 2017); Russo v. Veterans Administration , 3 M.S.P.R. 345,
349 (1980); 5 C.F.R. § 1201.115(d).2
similarly situated employee who was not a whistleblower, and that, in the absence
of such evidence and in consideration of the strength of the other Carr factors,
the agency met its burden. ID at 22-23. In analyzing Carr factor #3, however,
the administrative judge appeared to place the burden of proof on the appellant
rather than on the agency, where it belongs. See Miller v. Department of Justice ,
842 F.3d 1252, 1262 (Fed. Cir. 2016). In fact, the agency did not present any
specific evidence in support of Carr factor #3.
Carr does not impose an affirmative burden on the agency to produce
evidence with respect to each of the Carr factors or to weigh them individually in
the agency’s favor, and the absence of any evidence relating to Carr factor #3 can
effectively remove that factor from the analysis. Whitmore v. Department of
Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012). However, “the Government’s
failure to produce evidence on this factor ‘may be at the agency’s peril’
considering the Government’s advantage in accessing this type of evidence.”
Miller, 842 F.3d at 1262 (quoting Whitmore, 680 F.3d at 1374). Nevertheless, we
agree with the administrative judge’s findings that the agency demonstrated
strong evidence in support of its personnel actions and that the responsible
agency official possessed no motive to retaliate. ID at 19-23. Thus, to the extent
the administrative judge erred in assigning the burden of proof as to Carr
factor #3 to the appellant, the error did not prejudice his substantive rights. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision) .
The appellant asserts that the administrative judge’s finding that the agency
proved by clear and convincing evidence that it would have taken the personnel
actions absent his whistleblowing demonstrated “bias in favor of the ‘leadership
team’ and the status quo.” Petition for Review File, Tab 1 at 4. In making a
claim of bias or prejudice against an administrative judge, a party must overcome
the presumption of honesty and integrity that accompanies administrative3
adjudicators. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 19
(2016). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). The appellant’s bare allegation does not meet this rigorous standard.
The mere fact that the administrative judge rules against a party does not
establish bias. Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 29
(2015) (citing Schoenrogge v. Department of Justice , 76 M.S.P.R. 216, 220
(1997)).
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.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Quinlan_Neil_F_PH-1221-17-0247-W-1_Final_Order.pdf | 2024-02-02 | null | PH-1221-17-0247-W-1 | NP |
2,445 | https://www.mspb.gov/decisions/nonprecedential/Timmons_Stefan_L_CH-0752-16-0331-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEFAN L. TIMMONS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-0752-16-0331-I-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
B
obby R. Devadoss , Esquire, and Stephanie Bernstein , Esquire, Dallas,
Texas, for the appellant.
Jill Russell and Kevin B. Marsh , Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The agency has filed a 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, REVERSE the administrative judge’s finding
that the agency failed to prove its charge of conduct unbecoming, AFFIRM 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 findings that the agency failed to prove its charges of lack
of candor, failure to seek approval for outside employment, and failure to follow
supervisory instructions, and SUSTAIN the appellant’s removal based on the
sustained conduct unbecoming charge.
BACKGROUND
The appellant is a Customs and Border Patrol Officer at the agency’s U.S.
Customs and Border Protection’s Detroit Port of Entry. Initial Appeal File (IAF),
Tab 5, Subtab 4(a). In May 2011, the agency approved the appellant’s request for
outside employment to run an online business selling adult novelty products. Id.,
Subtab 4(g) at 41-43. Effective March 18, 2016, the agency removed him from
his position based on charges of conduct unbecoming, lack of candor, failure to
seek approval for outside employment, and failure to follow supervisory
instructions. Id., Subtabs 4(a)-(b), (d). The conduct unbecoming charge was
based on 15 specifications in which the agency alleged that the appellant engaged
in various unprofessional behavior, including, among other things, making
inappropriate comments to female coworkers, giving a sexually suggestive gift to
a female coworker, showing inappropriate pictures of scantily clad women to
coworkers, and engaging in a verbal altercation with a supervisor. IAF, Tab 5,
Subtab 4(d) at 1-3.
The lack of candor charge was supported by two specifications alleging
that the appellant was not fully forthcoming during an internal affairs interview
regarding the conduct described above. Id. at 3. In its failure to seek approval
for outside employment charge, the agency alleged that, although the appellant
had obtained approval for his outside business, he failed to seek re-approval after
the nature of the business changed. Id. at 3-4. The failure to follow supervisory
instructions charge was supported by two specifications in which the agency
alleged that the appellant refused to leave a training session after becoming2
disruptive, despite being asked to do so three times, and failed to provide a
memorandum regarding the incident within the prescribed deadline. Id. at 4.
The appellant filed a Board appeal, disputing the charges. IAF, Tab 1.
After the appellant withdrew his request for a hearing, IAF, Tab 30, the
administrative judge issued a decision based on the written record, IAF, Tab 40,
Initial Decision (ID). The administrative judge reversed the agency’s action,
finding that the agency failed to prove any of its charges or any of its
specifications in support of its charges. ID at 3-32.
The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has opposed the agency’s petition for review. PFR File,
Tab 6. The agency has filed a reply. PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency has complied with the interim relief order.
As a preliminary matter, we address the appellant’s allegation that the
agency failed to provide him interim relief. On July 13, 2017, the appellant filed
a pleading titled petition for enforcement, in which he asserts that the agency
withheld his back pay and failed to pay him what it owes him in full. PFR File,
Tab 11. The Board’s regulations do not provide for petitions for enforcement of
interim relief orders; such petitions apply only to final Board decisions. 5 C.F.R.
§ 1201.182(a). The Board’s regulations, however, do allow an appellant to
challenge an agency’s certification that it has provided interim relief, and the
Board may dismiss a petition for review if it finds the agency to be in
noncompliance with its interim relief obligations. 5 C.F.R. § 1201.116(b), (e).
When an initial decision grants the appellant interim relief, any petition for
review must be accompanied by a certification that the agency has complied with
the interim relief order. See 5 C.F.R. § 1201.116(a). To comply with an interim
relief order, the agency is only required to take appropriate administrative action
by the deadline for filing the petition for review that will result in the issuance of3
a paycheck for the interim relief period and is not necessarily required to have
paid the appellant by the deadline. Archerda v. Department of Defense ,
121 M.S.P.R. 314, ¶ 13 (2014). The administrative judge ordered the agency to
provide the appellant interim relief, effective as of the date of the decision,
including effecting his appointment with pay and benefits. ID at 33.
Here, with its petition for review, the agency provided a certificate of
compliance with the interim relief order, stating that it had effected the
appellant’s appointment to the Customs and Border Patrol Officer position as of
April 18, 2017, the effective date of the initial decision. PFR File, Tab 1 at 29.
In addition, the appellant’s motion includes correspondence from the agency
indicating that, as of June 6, 2017, his interim payment was in process for the
period from April 18, 2017, through pay period 17-10. PFR File, Tab 11 at 8.
To the extent that the appellant is seeking back pay as of March 18, 2016,
the effective date of his removal, id. at 6, interim relief provisions do not require
the agency to grant the appellant back pay or other benefits to make him whole at
the interim relief stage of the proceedings. Reid v. Department of the Navy ,
118 M.S.P.R. 396, ¶ 6 n.2 (2012). Rather, the agency is only required to give the
appellant an interim appointment with pay and benefits effective as of the date of
the initial decision. See 5 U.S.C. § 7701(b)(2)(A) (providing for an award of
interim relief “effective upon the making of the [initial] decision, and remaining
in effect pending the outcome of any petition for review”); see also Sanders v.
Department of Homeland Security , 122 M.S.P.R. 144, ¶¶ 7-8, aff’d, 625 F. App’x
549 (Fed. Cir. 2015), and overruled on other grounds by Haas v. Department of
Homeland Security , 2022 MSPB 36; Dunn v. Department of the Air Force ,
96 M.S.P.R. 166, ¶ 8 n.3 (2004), aff’d, 139 F. App’x 280 (Fed. Cir. 2005);
5 C.F.R. § 1201.116(f).
Thus, the agency was only required to provide pay and benefits starting on
April 18, 2017, the date on which the initial decision was issued. As the
appellant does not appear to dispute that the agency has taken steps to process the4
required interim relief, we deny the appellant’s request for relief in this regard,
and we will consider the agency’s petition for review.
The agency’s motion to admit video evidence is denied.
The agency has filed a motion to admit evidence of 15 videotaped
depositions of its witnesses. PFR File, Tab 7. In its motion, the agency asserts
that the administrative judge’s decision to exclude such evidence was erroneous
and prejudicial. Id. at 4-7. It is well settled that an administrative judge has
broad discretion to control the proceedings before her. Parker v. Department of
Veterans Affairs , 122 M.S.P.R. 353, ¶ 21 (2015); 5 C.F.R. § 1201.41. Rulings
concerning the exclusion of evidence are subject to review by the Board under an
abuse of discretion standard. Lopes v. Department of the Navy , 119 M.S.P.R.
106, ¶ 11 (2012). In rejecting the videotaped depositions, the administrative
judge found that her considering the videotaped depositions would contravene the
appellant’s request for a decision on the written record and would be duplicative
because written transcripts of the video testimony were part of the record. IAF,
Tab 39. She also noted that her decision would not prejudice the agency because
the agency has no right to a hearing. Id.; Callahan v. Department of the Navy ,
748 F.2d 1556, 1559 (Fed. Cir. 1984). Finally, she expressed concern that it
would not be proper for her to make demeanor-based credibility determinations
based on testimony that was not subject to cross-examination. IAF, Tab 39. We
find that the administrative judge did not abuse her discretion in excluding the
videotaped depositions.
For the reasons set forth by the administrative judge, we similarly decline
to consider the videotaped depositions for the first time on review. Accordingly,
the agency’s motion is denied. Although we do not consider the videotaped
depositions, we have considered the written transcripts of them. Further, our
decision to deny the agency’s motion is not prejudicial to the agency because, as
set forth below, the agency’s failure to prove certain charges or specifications is
not related to any credibility determinations, but rather its failure to prove the5
elements of its charge, provide sufficient evidence to support its charge, or
explain how or why certain behavior by the appellant was improper.
The agency proved its charge of conduct unbecoming.
The administrative judge found that the agency failed to prove any of its
15 specifications in support of its conduct unbecoming charge. ID at 4-32. On
review, the agency challenges the administrative judge’s findings concerning each
specification. PFR File, Tab 1 at 10-22. Because the administrative judge’s
findings are based on the written record, the Board is free to reweigh the evidence
and make its own findings without deferring to the administrative judge’s
credibility findings. See Deskin v. U.S. Postal Service , 76 M.S.P.R. 505, 510
(1997) (finding that the Board may substitute its own credibility determinations
for an administrative judge’s explicit or implicit credibility findings when such
findings are not based on the demeanor of witnesses); see also Haebe v.
Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002).
As set forth below, based on our review of the record, we find that the
agency has proven specifications 3, 4, 7, 9, 10, and 11. Further, we find the
agency’s proof of these specifications is sufficient to sustain the charge of
conduct unbecoming. See Burroughs v. Department of the Army , 918 F.2d 170,
172 (Fed. Cir. 1990) (finding that, when more than one event or factual
specification supports a single charge, the agency need not prove all of the
specifications; rather, proof of one or more of the supporting specifications is
sufficient to sustain the charge). In support of our finding that the agency proved
these six specifications, we note that the appellant admitted to some of the
misconduct underlying these specifications. See Chavez v. Small Business
Administration, 121 M.S.P.R. 168, ¶ 5 (2014).6
Specification 3
In specification 3, the agency alleged that the appellant gave A.P., a female
Border Patrol Agent (BPA), a gift of “Karma Sutra”2 body wash after she left the
Tucson Sector gym. IAF, Tab 5, Subtab 4(d) at 1. The agency contends that this
was not professional and made A.P. feel uncomfortable. Id. at 2. The agency
further contends that, following this incident, the appellant had additional
interactions with A.P. which made her feel uncomfortable, including hovering
over her while she was filling out a leave request and asking her to meet in the
middle of a shift at mile marker 8 in the Buenos Aires National Park. Id.
In her deposition testimony, A.P. indicates that the appellant gave her the
body wash when she was leaving the gym on the Border Patrol compound. IAF,
Tab 32 at 60. She viewed it as an inappropriate and suggestive gift and was
uncomfortable receiving it from a coworker whom she had only just met. Id.
at 61, 63. She reported it to her supervisors that same day but did not file a
formal complaint, opting instead to return the body wash to the appellant and
inform him to keep his interactions with her professional. Id. at 62-63.
Following this incident, she contends that 2 weeks later, after muster,3 the
appellant asked her if she would meet him at mile marker 8 in the Buenos Aires
National Wildlife Refuge. Id. at 66. She states that she found this request
unusual because they were not assigned to the same location, the locations they
were assigned to were far apart with rough terrain in between, to meet up at mile
marker 8 would have required the appellant to go outside of his assigned area,
and there was no work-related purpose for them to meet there. Id. at 66-69.
Finally, she states that on another occasion around this time, the appellant
2 It is unclear whether this was the name of the bodywash or a misnomer incident to the
reporting. IAF, Tab 32 at 11 n.5. The question, however, is immaterial because, in
either case, the reference to the Kama Sutra is clear.
3 Muster is when agents meet and are given assignments and information before they go
out to the field. IAF, Tab 32 at 130.7
assisted her unsolicited with filling out a leave request on the computer, hovered
over her in her personal space, and lingered too long. Id. at 63-65.
A.H., a Supervisory BPA, confirms that A.P. asked him for guidance after
she received the body wash from the appellant. In his affidavit, he indicates that
he told A.P. that, if she wanted to return the body wash, she should feel free to do
so and there would be no adverse effects to her career. IAF, Tab 5, Subtab 4(g)
at 192. He further indicates that a few weeks later, A.P. reported to him that the
appellant seemed to be interested in a personal relationship with her, she had tried
to make it clear that she was not interested, but he persisted in pursuing her. Id.
Following the appellant’s second discussion with A.P., A.H. spoke to the
appellant and told him that A.P. was not interested in a personal relationship and
asked him to keep his relationship with her professional. Id.
The appellant admits that he gave A.P., a new agent, a gift of a bottle of the
Karma Sutra body wash he sold on his adult novelty website. IAF, Tab 5,
Subtab 4(g) at 237. He also admits that she later returned it to him but disputes
that she told him to act professionally around her. Id. at 238. He also admits that
he had an interest in pursuing a personal relationship with A.P. IAF, Tab 25
at 30. Although he disputes that A.P. told him to act professionally around her
when she returned the body wash, given the context, we credit her account.4
Moreover, her statements in her memorandum, affidavit, and deposition all
consistently state that, after speaking with her supervisor, she returned the gift to
the appellant, and told him it was inappropriate and that he needed to act in a
more professional manner. IAF, Tab 5, Subtab 4(g) at 26, 113-17, Tab 32
at 60-63. In any event, after A.P. returned the gift, the appellant should have
4 In assessing the probative value of hearsay testimony, we have considered the factors
set forth in Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 87 (1981), which
include: the availability of persons with firsthand knowledge to testify at the hearing,
whether the out-of-court statements were sworn, whether the declarants were
disinterested witnesses to the events and whether their statements were routinely made,
the consistency of the out-of-court statements with other statements and evidence,
whether there is corroboration or contradiction in the record, and the credibility of the
out-of-court declarants.8
ascertained that it was an inappropriate gift for a coworker and that A.P. was not
interested in a personal relationship. Despite this, he continued to pursue her,
requiring A.H. to intervene. Thus, we find that the appellant’s interactions were
not professional.
Specification 4
In specification 4, the agency charged the appellant with asking S.R., a
female BPA, to go to his house and pose for pictures, calling her “baby,” and, in a
separate incident a week later, showing her pictures of scantily clad and
provocatively posed women and calling her a prude. IAF, Tab 5, Subtab 4(d)
at 2. S.R. asserts that, about the winter of 2013, she was assigned to patrol the
same area as the appellant. Id. at 29. She recalls he pulled up next to her in her
truck and made brief small talk before eventually asking if she was married and if
she would be interested in coming over to his house to pose for pictures and at
some point called her “baby.” Id. She recounts that, a week later, while assigned
to the highway 286 checkpoint with the appellant, he took out his cell phone and
showed her photos he had taken of other women posing provocatively wearing
only lingerie-type clothing. Id. at 133. The appellant admits that he called S.R.
“baby” and showed her pictures of scantily clad women, but he disputes that he
asked her to come to his house to pose for pictures or that he called her a prude.
Id. at 239-40. In light of the appellant’s admissions, we find that the agency has
proven that the appellant showed S.R. pictures of scantily clad women and called
her “baby.”
Applying the criteria for assessing the probative value of hearsay
testimony, we credit S.R.’s account that the appellant asked her to come to his
house to pose for pictures. See Borninkhof v. Department of Justice , 5 M.S.P.R.
77, 87 (1981). S.R. has consistently maintained that this happened in her
June 16, 2014 memorandum, her September 11, 2014 affidavit, and her
January 18, 2017 deposition. IAF, Tab 5, Subtab 4(g) at 29, 132-36, Tab 32
at 74-81. Although there are some minor discrepancies in her deposition, such as9
whether the appellant called her “baby” or “hot” during this interaction, this
appears to be due to the 4-year lapse in time between the date the incident
occurred and the date of S.R.’s deposition. Regardless, whether the appellant
called her “hot” or “baby” is of no consequence because either would be
inappropriate.
In addition, we afford less weight to the appellant’s affidavit because he
admits that he called S.R. “baby,” which partially corroborates S.R.’s version of
that encounter. Additionally, the appellant fails to explain in detail when or why
he called her “baby” or to describe his interactions with S.R. in sufficient detail
to refute her version of events. IAF, Tab 33 at 40-41. Finally, nothing suggests
that S.R. has any bias against the appellant.
Specifications 7 and 10
In specification 7, the agency alleges that the appellant engaged in
unprofessional conduct when he looked at D.F., a female mission support
assistant, in a sexually appraising manner. IAF, Tab 5, Subtab 4(d) at 2.
Similarly, in specification 10, the agency alleges that the appellant looked at J.R.,
a female BPA, in a sexually appraising manner and told her, “you look mighty
fine for just having a baby,” while licking his lips. Id.
D.F. describes an incident in which a firearms trainer stopped her to ask her
some questions. During their conversation, she looked over and saw the appellant
sitting in a chair nearby leaning back with his legs up, hand on his face, looking
at her from head to toe, and licking his lips. IAF, Tab 32 at 104-06. J.R.
similarly describes an incident in which she encountered the appellant for the first
time when she was walking in the hallway between the seized property building
and the Tucson station. Id. at 160. The appellant indicated that he had not seen
her before and she told him she just had a baby and was recently back from
maternity leave. Id. In response, he stated, “you look mighty fine for just having
a baby,” while licking his lips and looking her up and down. Id. The appellant
states that he does not recall the interaction with D.F. IAF, Tab 25 at 29. He also10
denies J.R.’s characterization of the incident and asserts that he only spoke with
J.R. on one occasion when he asked her about her baby because she had a
newborn baby with her. IAF, Tab 33 at 44.
In light of the similarities between D.F.’s and J.R.’s accounts and the lack
of any discernable bias against the appellant, we credit their version of events and
find that the agency proved both of these specifications. See Borninkhof ,
5 M.S.P.R. 77 at 87 (identifying the factors for assessing the probative value of
hearsay testimony to include the consistency of the declarants’ accounts with
other information in the case as well as their consistency with each other).
Specification 9
In this specification, the agency alleged that on June 2, 2014, while on
duty, the appellant engaged in a verbal altercation with E.G., a supervisory BPA,
in which he was physically aggressive and had to be physically restrained. IAF,
Tab 5, Subtab 4(d) at 2. According to E.G., he had asked the appellant to come to
his office to talk to him. Id., Subtab 4(i) at 6. Shortly thereafter, the appellant
came to his office accompanied by S.M., another supervisory BPA. Id. E.G. was
seated at his desk talking to J.M., another supervisory BPA. Id. E.G. asked the
appellant if he could step outside so that he could talk to S.M. before speaking to
the appellant. Id. The appellant immediately started yelling and pointing at him.
Id. He started to ask the appellant to step out again but stopped because of the
appellant’s demeanor. Id. The appellant was pointing at him and loudly yelling
at him that E.G. was trying to influence junior agents. Id. Eventually, S.M. and
J.M. restrained the appellant as he was getting closer to E.G., and S.M. repeatedly
tried to engage the appellant verbally to de-escalate the situation. Id. Eventually
S.M. and J.M. were able to physically direct the appellant out of E.G.’s office.
Id. at 6-7. In his deposition, E.G. gave a similar account and stated that he felt
concerned for his safety and was prepared to defend himself against the appellant,
who is an armed agent of larger physical stature than him. IAF, Tab 32
at 111-24.11
S.M. and J.M. both confirm that the appellant raised his voice and yelled at
E.G., something to the effect that E.G. was using his power to intimidate
subordinate agents against the appellant, they had to de -escalate the situation by
stepping between the appellant and E.G., and S.M. had to physically guide him
out of the office. IAF, Tab 5, Subtab 4(i) at 8-11, Tab 32 at 128-54. They also
both indicate that, as a result of the yelling, other supervisors and agents came to
see what was happening. IAF, Tab 5, Subtab (4)(i) at 8-10. In addition, they
both described the appellant’s demeanor and posture as concerning, rigid, and
angry, and expressed a belief that, had they not intervened, a physical altercation
would have occurred between the appellant and E.G. IAF, Tab 32 at 133-35,
148-49. S.M. also indicated that he feared for E.G.’s safety. Id. at 135.
The appellant portrays a very different scenario in which he contends that
E.G. bullied and denigrated him and asked him to come to his office where he
yelled at the appellant, causing the appellant to worry for his own safety. IAF,
Tab 33 at 43-44. However, in light of their detailed and consistent accounts, we
afford greater weight to the statements and testimony of the agency’s witnesses
than those of the appellant. Further, S.M., from whom the appellant sought
assistance, and J.M. appear to be disinterested witnesses who corroborate the
relevant portions of E.G.’s account of the appellant’s conduct. Accordingly, we
find that the agency proved this specification.
Specification 11
In this specification, the agency alleges that, while on duty, the appellant
showed D.D., a male BPA, a cover photo for his adult magazine of a female
posing in a bathing suit. IAF, Tab 5, Subtab 4(d) at 2. D.D. testified that the
appellant brought up his business and wanted to get D.D.’s opinion on a photo of
a female posing in a bathing suit for a proposed magazine cover. IAF, Tab 32
at 172. D.D. found this behavior unprofessional and tried to steer the
conversation back to talking about their kids. Id. at 173. The appellant admits
that this occurred, but he contends that D.D. asked to see a photo, and so he12
showed it to him at his request. IAF, Tab 33 at 44. We credit D.D.’s account
because it is consistent with the appellant’s behavior in another charged
specification, when he showed pictures he had taken for his outside business to
S.R., also for the purpose of getting her opinion. Supra p.9. Accordingly, we
find that the agency proved this specification.
The agency failed to prove the remaining specifications of its conduct
unbecoming charge.
Regarding specification 1, the agency disputes the administrative judge’s
finding that it failed to prove that the appellant acted unprofessionally when he
informed M.L., a female BPA, that he was going to meet a lady to take pictures of
her for his website. PFR File, Tab 1 at 10-11. The administrative judge found
that such comments were not unprofessional based on M.L.’s description of the
interaction in which she indicated that the appellant mentioned the appointment
and stated that the pictures would be tasteful, not nude. ID at 5-6. The
administrative judge noted that M.L. did not report the incident, which M.L.
viewed as the appellant being “naïve” and “kind of dumb.” ID at 6. The
administrative judge further found that the agency did not charge the appellant
with soliciting business while on duty. Id. We discern no error in the
administrative judge’s analysis. Nothing in the appellant’s outside work
authorization indicates that he was prohibited from discussing his outside
business. IAF, Tab 5, Subtab 4(g) at 41 -42. Nor does the record reflect that this
was a detailed conversation that crossed the line into improper or unprofessional
conduct.
The agency contends that the administrative judge misconstrued
specification 2, which charged the appellant with sending K.S., a female
contractor, personal and suggestive text messages that were unprofessional and
not work related. PFR File, Tab 1 at 11. We have reviewed the text messages
and discern no error in the administrative judge’s finding that the agency failed to
explain how such text messages were suggestive or improper, particularly in light13
of the fact that the agency did not charge the appellant with using Government
property to send the texts or with texting while on duty. ID at 7-8. The agency
also contends that the administrative judge failed to consider that, according to
K.S., the appellant repeatedly appeared at her car making her feel uncomfortable.
PFR File, Tab 1 at 11. However, the agency did not reference any such behavior
in this specification. IAF, Tab 5, Subtab 4(d) at 1. The Board may not impose
discipline based on a charge that the agency could have brought, but did not. See
Leaton v. Department of the Interior , 65 M.S.P.R. 331, 338 (1994), aff’d, 64 F.3d
678 (Fed. Cir. 1995) (Table); see also Minor v. U.S. Postal Service , 115 M.S.P.R.
307, ¶ 10 (2010) (stating that the Board is required to review an agency’s
decision on an adverse action solely on the grounds invoked by the agency).
Regarding specifications 5 and 6, the agency disputes the administrative
judge’s findings that it failed to prove that the appellant solicited business for his
outside adult novelties website while on duty or on Government property. PFR
File, Tab 1 at 14-15. The administrative judge found that the discussion
regarding the appellant’s business set forth in specification 5 was more accurately
characterized as idle conversation than as a solicitation because it arose during a
conversation with A.B., a female BPA, who asked the appellant questions about
his personal life that led to a discussion of his business. ID at 13-14. We discern
no error in the administrative judge’s analysis.
In specification 6, the agency charged the appellant with telling D.F., a
female Mission Support Assistant, that he personally designed and sold shoes,
and subsequently texting her a link to his company’s website. IAF, Tab 5,
Subtab 4(d) at 2. The administrative judge found that the first conversation in
which the appellant told D.F. he designed shoes and would design a pair for her
was not accurately characterized as a solicitation because it was not clear that the
appellant was trying to sell her shoes. ID at 14-15. The administrative judge also
found that the subsequent text messages exchanged did not occur while the
appellant was on duty. ID at 15. We discern no error in the administrative14
judge’s analysis. Further, the appellant denies that his intent was to solicit
business from D.F., and instead he contends that he struck up this conversation
because he wanted to date her. IAF, Tab 25 at 28, Tab 33 at 42. The off-duty
text messages appear to support his claim to the extent they reflect that the
appellant only sent the link to his website after D.F. asked him to, stopped texting
D.F. after she informed him that she was in a relationship, and never followed up
to try to sell her shoes or other merchandise. IAF, Tab 5, Subtab 4(h) at 10-16.
Regarding specification 8, the agency disputes the administrative judge’s
finding that it failed to prove that the appellant watched sexually explicit material
while on duty. PFR File, Tab 1 at 16-17. The agency contends that the
administrative judge erred in requiring it to prove that the appellant was watching
pornography. Id. However, we agree with the administrative judge that the
distinction is material. In any event, we agree that the agency failed to prove the
appellant was watching sexually explicit material. The appellant contends that he
was watching an R-rated movie. IAF, Tab 25 at 36. Although the female BPA
who reported the incident described what the appellant was watching as softcore
pornography, she did not actually see what the appellant was watching, but rather,
she overheard what she characterized as language of a sexual nature.5 IAF, Tab
5, Subtab 4(g) at 101, Tab 32 at 109-10. Further, as the administrative judge
noted, the agency did not contend that it was improper for the appellant to watch
television while on duty. ID at 17.
Regarding specifications 12 and 13, the agency disputes the administrative
judge’s finding that it failed to show that the appellant’s interactions with C.E.
and C.F., two female Transportation Security Administration employees, were
unprofessional, impolite, or disrespectful. PFR File, Tab 1 at 19-20. Regarding
5 Although we do not sustain this specification, the Board does not condone employees
viewing sexually explicit material while on duty and has sustained removals of
employees based on similar charges when proven. See, e.g., Von Muller v. Department
of Energy, 101 M.S.P.R. 91, ¶ 23 (finding that the penalty of removal was reasonable
for an employee’s use of a Government computer to send and receive sexually explicit
images via email), aff’d, 204 F. App’x 17 (Fed. Cir. 2006). 15
C.E., the agency alleged that, during training at the Federal Law Enforcement
Training Center, the appellant commented on her shoe size after she indicated she
was going shoe shopping and stated that her feet looked small. IAF, Tab 5,
Subtab 4(d) at 3. He also later approached her and told her that he had asked his
classmates about her. Id. Regarding C.F., the agency alleged that he said “hello”
and patted her on the arm, a few minutes later told her that he saw her walking
from the dorm the night before, and subsequently approached her on two other
occasions. Id. We recognize the difficulty in establishing reasonable guidelines
for appropriate social behavior among coworkers and acknowledge that the
appellant’s overly friendly interactions with these employees may have caused
them to feel uncomfortable. However, we agree with the administrative judge
that the agency failed to prove that these interactions were unprofessional,
impolite, or disrespectful under the particular facts of this case.
Regarding specifications 14 and 15, the agency contends that the appellant
displayed unprofessional and angry behavior, loudly tapped a computer keyboard,
and angrily slammed a computer mouse during a role-playing exercise. IAF,
Tab 5, Subtab 4(d) at 3. The agency contends that the administrative judge
summarily declined to sustain the appellant’s alleged unprofessional behavior
because he was engaging in role play at the time without considering the effect of
the appellant’s behavior. PFR File, Tab 1 at 21-22. However, we agree with the
administrative judge that it was improper for the agency to ask the appellant to
engage in role play, characterize that role play as unprofessional, and then cite it
in support of a removal charge. ID at 23.
The agency failed to prove its remaining charges.
In its lack of candor charge, the agency charges the appellant with failing
to be fully forthcoming in an internal interview when he denied having solicited
employees while at work for his outside business and denied watching softcore
pornography while at work. IAF, Tab 5, Subtab 4(d) at 3. However, we agree
with the administrative judge that the agency failed to prove that the appellant16
solicited business for his outside business or that he watched sexually explicit
material while on duty. Thus, the agency failed to prove its lack of candor
charge. See Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 16-17
(2016) (finding that a lack of candor charge involves an element of deception and
requires proof of two elements: (1) that the employee gave incorrect or
incomplete information; and (2) that he did so knowingly).
Regarding the failure to seek approval for outside employment, the agency
charged the appellant with failing to submit a new written request for approval of
his outside employment when the nature of his business changed from
maintaining a website to sell adult novelties to include photographing models to
market the products he sold online and to establish a new online magazine. Id.
at 3-4. The administrative judge found that the agency failed to show that the
appellant knew that he was required to submit a new request for approval of these
new business expansions. ID at 29. She found that the agency’s May 2011
approval letter did not inform him of such a requirement, nor did any agency
regulation specify such a requirement. Id.
On review, the agency argues that such findings were erroneous and the
appellant was on notice based on a signed agency form 3031 request to engage in
outside employment or business activities in which he certified that he would
submit a new request for approval “if the nature of [his] employment or business
change[d].” PFR File, Tab 1 at 24. We find such a standard to be too ambiguous
to put the appellant on notice that he was to submit another request for approval
under the circumstances charged by the agency. Accordingly, we agree with the
administrative judge that the agency failed to prove this charge.
Regarding the failure to follow supervisory instructions charge, the agency
charged the appellant with failing to leave a training session that he had disrupted
after having been unintentionally kneed in the groin. IAF, Tab 5, Subtab 4(d)
at 4. The agency contends that the appellant did not comply with instructions to
leave after being asked three times to do so and having to be walked out. Id. The17
agency also charged the appellant with failing to timely submit a memorandum
regarding his disruption during the training session as instructed. Id. We agree
with the administrative judge that the evidence fails to establish that the appellant
had to be walked out of the training session. ID at 30. Regarding the
memorandum, the administrative judge found that the individual who instructed
the appellant to write the memorandum testified that he could not recall what
deadline he imposed for the appellant to submit it. ID at 31. She further found
that the agency failed to prove that it provided the appellant with proper
instructions regarding how to turn in the memorandum to the required individual,
who was not scheduled to teach the appellant for the next 5 days. Id. We discern
no error in the administrative judge’s analysis.
There is a nexus between the sustained misconduct and the efficiency of
the service.
The agency also must prove by preponderant evidence that its action
promotes the efficiency of the service. See 5 U.S.C. § 7513(a); Booker v.
Department of Veterans Affairs , 110 M.S.P.R. 72, ¶ 12 (2008). However, it is
well settled that there is a sufficient nexus between an employee’s conduct and
the efficiency of the service when, as here, the conduct occurred on agency
premises and while the appellant was on duty. See, e.g., Miles v. Department of
the Navy, 102 M.S.P.R. 316, ¶ 11 (2006); Ray v. Department of the Army ,
97 M.S.P.R. 101, ¶ 60 (2004) (finding nexus when the misconduct included,
among other things, using inappropriate terms when addressing female
coworkers), aff’d, 176 F. App’x 110 (Fed. Cir. 2006). Therefore, we find that the
agency has proven that a nexus exists between the appellant’s misconduct and the
efficiency of the service.
The penalty of removal is reasonable in light of the sustained charge.
When an agency fails to prove all of its charges, the Board must consider
carefully whether the sustained charges merit the penalty imposed by the agency.
Reid, 118 M.S.P.R. 396, ¶ 24. In such circumstances, if the agency does not18
indicate that it desires a lesser penalty to be imposed on fewer charges, the Board
may mitigate to the maximum reasonable penalty if a careful balancing of the
mitigating factors warrants, or the Board may impose the same penalty imposed
by the agency based on justification of that penalty as the maximum reasonable
penalty after balancing those factors. Lachance v. Devall , 178 F.3d 1246, 1260
(Fed. Cir. 1999); Parker v. U.S. Postal Service , 111 M.S.P.R. 510, ¶ 6, aff’d,
355 F. App’x 410 (Fed. Cir. 2009).
Here, the agency did not indicate a desire that a lesser penalty be imposed
for fewer charges. Rather, the deciding official testified that he would have
removed the appellant based on the conduct unbecoming charge alone. IAF,
Tab 32 at 247-48. We find that the deciding official properly considered the
factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981),
and that the penalty of removal is reasonable in light of the sustained charge. The
deciding official testified that removal would have been warranted based on the
conduct unbecoming charge alone due to the serious, intentional, and repetitive
nature of the appellant’s inappropriate interactions with female employees.6 IAF,
Tab 32 at 247. He also expressed concern regarding the appellant’s temperament,
noting that officers are on the front lines interacting with the public and perform
their duties and responsibilities without direct supervision. Id. at 248-49. Thus,
he was concerned about the appellant’s ability to remain calm, polite, and
professional in the face of provocation on the front lines. Id. Finally, he
emphasized that the appellant’s misconduct was especially unacceptable because,
as a law enforcement officer, he is held to a higher standard of conduct. IAF,
Tab 5, Subtab 4(b) at 1, Tab 32 at 244.
The deciding official also considered the appellant’s 7 years of Federal
service, satisfactory performance, and his admission during his oral reply that he
6 An indication of the seriousness of the appellant’s misconduct is a supervisory BPA’s
sworn statement indicating that he and other shift supervisors had adjusted scheduling
so as not to assign the appellant to work with J.P., S.R., or, if possible, any other female
employees. IAF, Tab 5, Subtab 4(g) at 193. 19
may have been overly aggressive pursuing female employees as mitigating
factors, but found they did not outweigh the seriousness of his misconduct. IAF,
Tab 32 at 243, 246. The deciding official also considered the appellant’s prior
2-day suspension for misuse of his position when he solicited the wife of a BPA
for his outside employment and used his position as a BPA to vouch for his
reliability. Id. at 243. Considering the appellant’s status as a law enforcement
officer, the fact that his position involves working unsupervised with female
BPAs in remote locations, the numerous affidavits from female employees
indicating that they did not feel comfortable working with the appellant, and
keeping in mind the employing agency’s primary discretion in assessing
penalties, we find that removal does not exceed the tolerable limits of
reasonableness for the sustained misconduct. See Todd v. Department of Justice ,
71 M.S.P.R. 326, 330 (1996) (recognizing that law enforcement officers are held
to a high standard of conduct). Accordingly, we sustain the agency’s removal
action.
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
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.20
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. 21
(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: 22
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. 23
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.24 | Timmons_Stefan_L_CH-0752-16-0331-I-1_Final_Order.pdf | 2024-02-02 | STEFAN L. TIMMONS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-0752-16-0331-I-1, February 2, 2024 | CH-0752-16-0331-I-1 | NP |
2,446 | https://www.mspb.gov/decisions/nonprecedential/Schleck_Timothy_R_DC-1221-17-0377-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY R. SCHLECK,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-1221-17-0377-W-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel Tesler , Esquire, Beverly, Massachusetts, for the appellant.
Matthew B. Hawkins , Esquire, Meghan Stoltzfus , Dahlgren, Virginia,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of Board
jurisdiction because he failed to raise a nonfrivolous allegation that he made a
protected disclosure under 5 U.S.C. § 2302(b)(8). 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 claims that the appellant exhausted before the Office
of Special Counsel (OSC); the appellant’s additional allegation of making a
protected disclosure; the appellant’s claim that the agency perceived him as a
whistleblower; and the administrative judge’s failure to rule on the appellant’s
discovery motions, we AFFIRM the initial decision.
BACKGROUND
On August 24, 2015, the agency appointed the appellant to the position of
Scientist, ND-1520-02, subject to a 1-year probationary period. Initial Appeal
File (IAF), Tab 14 at 59.2 In this role, the appellant served as a system safety
engineer, conducted safety analysis, and evaluated critical systems for safety
hazards. IAF, Tab 1 at 23.
2 As the administrative judge did in the initial decision , we cite to the agency’s
evidence here solely for background purposes. We have not considered the agency’s
argument or evidence with regard to the dispositive jurisdictional issues. See generally
Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1368-69 (Fed. Cir. 2020)
(explaining that the Board may not deny jurisdiction in an IRA appeal by crediting the
agency’s interpretation of the evidence as to whether the alleged disclosures fell within
the protected categories or whether the disclosures were a contributing factor in an
adverse personnel action).
3
On April 7, 2016, the appellant sent an email to eight agency supervisors
entitled, “Tim’s Attempt at Formalization of Hazard Theory.” Id. at 50. In this
email, the appellant sought input on and consideration of researching an
alternative to the method used by the agency for the identification, classification,
and mitigation of hazards. Id. The appellant attached a spreadsheet with
definitions and mathematical formulas to support his attempt at a new theory. Id.
at 51-52.
On April 14, 2016, the appellant had a conversation regarding the April 7,
2016 email with his first-line supervisor. IAF, Tab 1 at 12, 65. The appellant
claims that during this conversation, his supervisor advised that others at the
agency had a problem with the email. Id. at 65. His supervisor further expressed
frustration with the division and how nothing could be done, to which the
appellant allegedly responded, “because nobody shines the light of day on it.” Id.
On May 19, 2016, the appellant sent his supervisors an email stating that he
was resigning from his position. IAF, Tab 14 at 52. The appellant’s supervisors,
both of whom received the April 7, 2016 email, met with him to provide
encouragement and permitted him to retract his resignation, which he did. IAF,
Tab 1 at 50, Tab 14 at 29. However, the appellant’s supervisors advised him that
he needed to improve his performance, as he was still in his probationary period.
IAF, Tab 14 at 29. The appellant failed to improve his performance, prompting
the agency to terminate him during his probationary period, effective July 27,
2016. IAF, Tab 1 at 54-56, Tab 14 at 43.
On November 2, 2016, the appellant filed a request for corrective action
with OSC, claiming that the agency terminated him in reprisal for making
whistleblowing disclosures. IAF, Tab 1 at 60-69. The appellant cited the April 7,
2016 email and the conversation that he had with his first -line supervisor on
April 14, 2016, as his protected disclosures. Id. at 65. The appellant also
claimed that the agency perceived him as a whistleblower. Id. at 61, 67.
4
On March 10, 2017, the appellant filed an IRA appeal with the Board and
requested a hearing, raising the same allegations as in his OSC complaint, as
more than 120 days had elapsed since the filing of his request without notification
of whether OSC would take action. IAF, Tab 1 at 3, 17-19, 60-61, 65, 67; see
5 U.S.C. § 1214(a)(3)(B). After the parties submitted argument and evidence, the
administrative judge issued an initial decision on the written record, dismissing
the appeal for lack of Board jurisdiction. IAF, Tab 17, Initial Decision (ID). In
the initial decision, the administrative judge found that the appellant exhausted
his administrative remedies with OSC when he raised the April 7, 2016 email as
his protected disclosure, but the email was not a nonfrivolous allegation of a
protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 5-8. The absence of a
nonfrivolous allegation of a protected disclosure divested the Board of
jurisdiction. ID at 5-9. The initial decision reached no conclusion on the
appellant’s additional claims. Id. There is also no ruling in the record on the
discovery motions filed by the appellant.3
The appellant filed a petition for review on August 4, 2017, arguing that
the initial decision failed to address his claim that the agency perceived him as a
whistleblower, while also containing erroneous findings of material facts and
application of law. Petition for Review (PFR) File, Tab 1 at 5-17. The appellant
then claims that he made a nonfrivolous allegation that his protected disclosures
and/or perceived whistleblower status was a contributing factor in his
termination. Id. at 17-19. The agency responded in opposition and the appellant
filed a reply. PFR File, Tabs 3-4.
3 On April 24, 2017, in a single pleading, the appellant filed a motion to compel, a
request for a subpoena, and a request for an extension of time to conduct discovery.
IAF, Tab 4.
5
DISCUSSION OF ARGUMENTS ON REVIEW4
The Board has jurisdiction over an IRA appeal if an appellant proves that
he 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 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 Graves v. Department of Veterans Affairs , 123 M.S.P.R.
434, ¶ 12 (2016). A nonfrivolous allegation is an assertion that, if proven, could
establish the matter at issue. Lewis v. Department of Defense , 123 M.S.P.R. 255,
¶ 7 (2016). 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).
The appellant exhausted his administrative remedies before OSC.
Absent an action directly appealable to the Board, only allegations of
protected disclosures of information, along with personnel actions, that an
appellant first raises and exhausts with OSC may be considered by the Board in
an IRA appeal. See Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 8 (2011); Davis v. Department of Defense , 103 M.S.P.R. 516, ¶ 7 (2006).
To satisfy the exhaustion requirement, an appellant must inform OSC of the
precise ground of his charge of reprisal for whistleblowing, giving OSC a
sufficient basis to pursue an investigation which might lead to corrective action.
Ward v. Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir. 1992);
Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3, ¶ 6 (2014),
4 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5 The appellant does not allege that he engaged in protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
6
aff'd per curiam , 626 F. App’x 261 (Fed. Cir. 2015). The test of the sufficiency
of an appellant’s charges of reprisal for whistleblowing to OSC is the statement
that he makes in the complaint requesting corrective action, not his post hoc
characterization of those statements . Ellison v. Merit Systems Protection Board ,
7 F.3d 1031, 1036 (Fed. Cir. 1993); see Miller, 122 M.S.P.R. 3, ¶ 6. If, as in this
case, 120 days pass after the filing of a request for corrective action with OSC,
and an appellant has not received notification of whether OSC will take action, an
IRA appeal may be filed with the Board. 5 U.S.C. § 1214(a)(3)(B); see IAF,
Tab 1 at 19-20, 60.
The undisputed record shows that the appellant filed a request for
corrective action with OSC on November 2, 2016, claiming that the agency
terminated him in reprisal for his whistleblowing disclosures. IAF, Tab 1
at 60-69. In this request, the appellant cited the April 7, 2016 email and the
conversation that he had with his first-line supervisor on April 14, 2016, as his
protected disclosures. Id. at 65. The appellant also claimed that the agency
perceived him as a whistleblower. Id. at 61, 67. The administrative judge
correctly determined in the initial decision that the appellant exhausted his
administrative remedies with OSC regarding his allegation that the agency
retaliated against him for the April 7, 2016 email. ID at 5. However, the initial
decision is silent on whether the appellant also exhausted his other alleged
protected disclosure, the April 14, 2016 conversation with his first-line
supervisor, and his claim that the agency perceived him as a whistleblower. ID
at 5. Because the appellant raises these claims in this appeal, included both in his
request for corrective action with OSC, and a sufficient basis existed for OSC to
initiate an investigation, these too were exhausted. IAF, Tab 1 at 17-18, 61, 65,
67. As such, these must be analyzed to determine if either meets the nonfrivolous
allegation standard in order for the appellant to further establish Board
jurisdiction over his appeal.
7
The April 7, 2016 email and April 14, 2016 conversation are not nonfrivolous
allegations of protected disclosures under 5 U.S.C. § 2302(b)(8).
To establish jurisdiction over an IRA appeal, an appellant is not required to
prove that he made protected disclosures; rather, he is required to make a
nonfrivolous allegation that his disclosures were protected. Grubb v. Department
of the Interior, 96 M.S.P.R. 377, ¶ 11 (2004). Protected whistleblowing takes
place when an appellant makes a disclosure that he reasonably believes evidences
a violation of law, rule, or regulation; gross mismanagement; a gross waste of
funds; an abuse of authority; or a substantial and specific danger to public health
and safety. DeLeonardo v. Equal Employment Opportunity Commission ,
103 M.S.P.R. 301, ¶ 6 (2006). The proper test for determining whether an
appellant had a reasonable belief that his disclosures revealed misconduct
prohibited under the whistleblower protection statutes is whether a disinterested
observer, with knowledge of the essential facts known to and readily
ascertainable by an appellant, could reasonably conclude that the disclosure
describing the actions of the Government evidences wrongdoing as defined in
5 U.S.C. § 2302(b)(8). DeLeonardo, 103 M.S.P.R. 301, ¶ 6.6
The appellant claimed that the April 7, 2016 email that he sent constitutes a
nonfrivolous allegation of a protected disclosure because it identifies gross
mismanagement, a gross waste of funds, and/or a specific danger to public health
or safety.7 IAF, Tab 1 at 17-18, 50. The email does not mention or provide
6 The Whistleblower Protection Enhancement Act (WPEA), which went into effect on
December 27, 2012, does not affect the relevant holding in this cited authority, nor does
it affect the relevant holdings in the other authorities cited herein that were issued prior
to the effective date of the WPEA. See Pub. L. No. 112-199, 126 Stat. 1465 (2012).
7 Although we are cautious in considering documentary evidence at the jurisdictional
stage, we need not consider the appellant’s allegations “in a vacuum.” See Hessami,
979 F.3d at 1365 n.5. Beyond an appellant’s allegations, “the Board may also consider
sources such as ‘matters incorporated by reference or integral to the claim, items
subject to judicial notice, [and] matters of public record.’” Id. (citing A&D Auto Sales,
Inc. v. United States , 748 F.3d 1142, 1147 (Fed. Cir. 2014)). We find it appropriate to
look beyond the appellant’s allegation to consider the documents, i.e., the April 7, 2016
email the appellant attached and referenced, to give his allegation greater context.
8
examples of any of these areas. Id. at 50. Instead, through this email, the
appellant seeks input and consideration from supervisors on researching an
alternative to the method that the agency used for the identification,
classification, and mitigation of hazards. The language used by the appellant in
the April 7, 2016 email further establishes that he did not reasonably believe that
he was disclosing a situation specified in 5 U.S.C. § 2302(b)(8). The appellant
asks for permission to proceed with the work when he started the email with, “For
your consideration -here is the humble beginning of an attempt I was making at
formalizing Hazard Theory.” Id. The appellant states that definitions under the
current method to which he was proposing change can be “interpreted differently
by equally reasonable people . . . .” Id.
The appellant may have disagreed with the agency’s policies regarding the
identification, classification, and mitigation of hazards, an area over which there
might be subjective differences of opinion. The April 7, 2016 email illustrates
this position and was the appellant’s attempt to research a different approach. It
is well settled that the whistleblower protection statutes are not a tool to be used
in arguments over policy disagreements. See McCarthy v. International
Boundary and Water Commission , 116 M.S.P.R. 594, ¶ 61 (2011), aff’d,
497 F. App’x 4 (Fed. Cir. 2012). Questioning management decisions, criticizing
standards, or expressing general policy disagreements with agency decisions or
actions are not protected unless they separately constitute a protected disclosure
of one of the categories of wrongdoing listed in section 2302(b)(8)(A). Webb v.
Department of the Interior , 122 M.S.P.R. 248, ¶ 8 (2015) (finding that a position
paper was a policy disagreement with the agency’s decisions and was not a
protected disclosure). Similarly, speculations of danger, with nothing more, are
not protected disclosures. See Schoenig v. Department of Justice , 120 M.S.P.R.
318, ¶ 10 (2013) (holding that a disclosure of speculative danger is not a
protected disclosure). Therefore, we find that the administrative judge properly
9
determined that the appellant failed to nonfrivolously allege that the April 7, 2016
email was a protected disclosure. ID at 5-8.
The appellant also claims that the April 14, 2016 conversation with his
supervisor constitutes a nonfrivolous allegation of a protected disclosure. IAF,
Tab 1 at 17-18, 65. During this conversation, the participants discussed the
April 7, 2016 email. Id. at 65. The appellant claims that his supervisor also
expressed frustration with the division and how nothing could be done, to which
the appellant purportedly responded, “because nobody shines the light of day on
it.” Id. The absence of any other information regarding this conversation,
coupled with the finding that the April 7, 2016 email was not a nonfrivolous
allegation of a protected disclosure, leads to the conclusion that the appellant did
not reasonably believe that he was disclosing wrongdoing during this
conversation. See Keefer v. Department of Agriculture , 82 M.S.P.R. 687, ¶ 10
(1999) (finding that general conclusory allegations lacking in specificity of any
disclosure of wrongdoing do not constitute a nonfrivolous allegation of a
protected disclosure in an IRA appeal).
Thus, we find that the appellant did not meet his burden of proving that the
April 7, 2016 email and April 14, 2016 conversation are nonfrivolous allegations
of protected disclosures.
The appellant failed to make a nonfrivolous allegation that the agency perceived
him as a whistleblower.
An appellant who is perceived as a whistleblower by an agency is still
entitled to the protections of the whistleblower protection statutes, even if he has
not made a protected disclosure. King v. Department of the Army , 116 M.S.P.R.
689, ¶ 6 (2011). However, an appellant alleging reprisal under this theory still
must meet the Board’s jurisdictional requirements for an IRA appeal. King,
116 M.S.P.R. 689, ¶ 9.
The appellant’s claim that the agency perceived him as a whistleblower
hinges on the fact that he was removed a little more than 4 months after he sent
10
the April 7, 2016 email. The mere fact that a personnel action occurred is not
enough to determine that the appellant nonfrivolously alleged that the agency
perceived him as a whistleblower. The Board requires an appellant to provide
more than vague, conclusory, and unsupported assertions to meet the nonfrivolous
standard. El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015), aff’d per
curiam, 663 F. App’x 921 (Fed. Cir. 2015). The appellant falls short of this
threshold here.
The variety of fact patterns that the Board has found to support a claim that
an individual was perceived as a whistleblower, i.e., evidence of agency officials
appearing to believe that an appellant engaged in or intended to engage in
whistleblowing activity, are not present in this appeal. For example, in Special
Counsel v. Department of the Navy , 46 M.S.P.R. 274, 276, 280 (1990), the Board
held that an employee’s perception as a whistleblower arose from the fact that the
agency mistakenly believed that the employee was the individual who telephoned
an agency hotline. In Holloway v. Department of the Interior , 82 M.S.P.R. 435,
¶ 15 (1999), the appellant set forth a nonfrivolous allegation that the agency
perceived him as a whistleblower after a newspaper reported that he disclosed
“fraud, waste and abuse” at his agency. In Mausser v. Department of the Army ,
63 M.S.P.R. 41, 44 (1994), the appellant compiled a list of “waste, fraud, and
abuse,” “safety issues,” and violation of “government regulations” that he
observed at the agency, with the intention of disclosing the list to the Inspector
General. The Board found that the agency may have perceived the appellant as a
whistleblower to the extent that the agency knew of the list and the appellant’s
intention to disclose it. Mausser, 63 M.S.P.R. at 44. In Thompson v. Farm
Credit Administration , 51 M.S.P.R. 569, 581-82 (1991), 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.”
Based on our review of the facts and the law, we find that the appellant here
11
failed to set forth a nonfrivolous allegation that the agency perceived him as a
whistleblower.
The appellant failed to raise any other basis to grant his petition for review.
The appellant argues on review that the administrative judge erred by not
considering whether his alleged protected disclosures and status as a perceived
whistleblower were a contributing factor in his termination. PFR File, Tab 1
at 17-19. Having found that the appellant failed to nonfrivolously allege that he
made a protected disclosure or that he was perceived as a whistleblower divests
the Board of jurisdiction; thus, there is no need to further assess his claims under
the jurisdictional standard. See Downing v. Department of Labor , 98 M.S.P.R.
64, ¶¶ 6, 14 (2004) (holding that because the appellant did not make a
nonfrivolous allegation that he made a protected disclosure, the Board did not
address whether the purported disclosure was a contributing factor in the
agency’s decision to remove him), aff’d, 162 F. App’x 993 (Fed. Cir. 2006).
To the extent that the administrative judge committed an adjudicatory error
by not ruling on the appellant’s April 24, 2017 discovery motions, we find that
such an error was not prejudicial nor were any of the appellant’s substantive
rights negatively impacted. Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984); see Bedynek-Stumm v. Department of Agriculture , 57 M.S.P.R.
176, 178-79 (1993) (holding that the administrative judge did not commit a
prejudicial error by failing to rule on a motion to compel).
On April 24, 2017, the appellant filed three discovery motions in a single
pleading: a motion to compel the agency to respond to written discovery, a
request for the administrative judge to issue a subpoena to the agency to respond
to some of the appellant’s written discovery requests, and a motion to extend the
discovery period. IAF, Tab 4. However, the appellant, represented by counsel,
did not fulfill the requirements regulating discovery requests and motions set
forth in 5 C.F.R. § 1201.73, as he filed his motion to compel before the agency’s
responses to discovery were even due. 5 C.F.R. § 1201.73(d)(2); IAF, Tab 4 at 4,
12
14. Further, the record is unclear on whether the appellant ever served his
discovery requests on the agency’s proper representative, even after learning that
the agency official initially served with the discovery requests had retired prior to
the filing of the appeal and that a new representative was not designated until
April 26, 2017, or took on a good faith effort to work through the issues prior to
filing his motion to compel, as required by 5 C.F.R. § 1201.73(a), (c). IAF, Tab 4
at 6-7, 14, Tab 6 at 5; see Lee v. Environmental Protection Agency , 115 M.S.P.R.
533, ¶ 12 (2010) (noting that an administrative judge may deny a motion to
compel discovery if a party fails to comply with the requirements set forth in
5 C.F.R. § 1201.73). As such, we find that the failure to rule on these motions
was not prejudicial to the appellant and his rights were not negatively impacted.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
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
14
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:
15
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.
16
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. | Schleck_Timothy_R_DC-1221-17-0377-W-1_Final_Order.pdf | 2024-02-02 | TIMOTHY R. SCHLECK v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-1221-17-0377-W-1, February 2, 2024 | DC-1221-17-0377-W-1 | NP |
2,447 | https://www.mspb.gov/decisions/nonprecedential/Stephens_Tess_D_CH-0752-15-0370-C-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TESS STEPHENS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-15-0370-C-2
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tess Stephens , Terre Haute, Indiana, pro se.
Kyle C. Mardis , Esquire, Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the compliance initial
decision, which denied her petition for enforcement . 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 compliance initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
The sole issue in this petition for enforcement is whether the agency
breached the August 2018 settlement agreement. See generally, King v. Reid,
59 F.3d 1215, 1217-19 (Fed. Cir. 1995) (explaining that the Board retains
jurisdiction over settlement agreements entered into the record pursuant to its
power to enforce its own orders and that such jurisdiction is limited in scope).
The appellant has presented no basis for disturbing the administrative judge’s
finding that she failed to identify any provision of the August 2018 settlement
agreement that the agency breached. Petition for Review (PFR) File, Tab 1
at 6-18; see Stephens v. Department of Veterans Affairs , MSPB Docket No.
CH-0752-15-0370-C-2, Appeal File (C-2 AF), Tab 11, Compliance Initial
Decision at 8.
The appellant has raised several arguments that are immaterial to this issue,
including claims of harmful procedural error by the agency in its decision to
remove her and claims of harassment or retaliation during her employment with
the agency. PFR File, Tab 1 at 6-18; C-2 AF, Tab 4-7. By choosing to settle her
appeal, however, the appellant waived her right to have the Board review the
merits of the removal action. See Burks v. Department of the Interior ,
84 M.S.P.R. 423, ¶ 4 (1999), aff’d, 243 F.3d 566 (Fed. Cir. 2000) (Table). 2
Thus, we affirm the initial decision.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).
2 To the extent that the appellant claims for the first time on review that the settlement
agreement was invalid due to coercion, we decline to address it. See Pridgen v. Office
of Management and Budget , 2022 MSPB 31, ¶ 34 n.10 (explaining 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).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Stephens_Tess_D_CH-0752-15-0370-C-2__Final_Order.pdf | 2024-02-02 | TESS STEPHENS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-15-0370-C-2, February 2, 2024 | CH-0752-15-0370-C-2 | NP |
2,448 | https://www.mspb.gov/decisions/nonprecedential/Wade_Joseph_E_AT-1221-22-0179-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH E. WADE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-22-0179-W-1
DATE: February 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
oseph E. Wade , Miami, Florida, pro se.
Joved Gonzalez-Rivera , Esquire, Mayaguez, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as untimely filed. On
petition for review, the appellant avers that his Board appeal was untimely
because he had requested that the Office of Special Counsel (OSC) reconsider its
decision to close its investigation into his complaint and he was awaiting a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
response therefrom.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).
The Board cannot waive the statutory time limit for filing an IRA appeal
for good cause. Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 9
(2014). However, the Board might invoke the doctrine of equitable tolling to
suspend the filing period for equitable reasons, such as when the appellant has
been induced or tricked by his adversary’s misconduct in allowing the deadline to
pass or filed a defective pleading during the statutory period. Heimberger,
121 M.S.P.R. 10, ¶ 10; 5 C.F.R. § 1209.5(b). The Board only applies this remedy
in unusual circumstances and generally requires a showing that the litigant has
been pursuing his rights diligently and some extraordinary circumstances stood in
his way. Heimberger, 121 M.S.P.R. 10, ¶ 10; 5 C.F.R. § 1209.5(b).
2 The appellant also seemingly contends that the Board has jurisdiction over his IRA
appeal and argues the merits of the same. Petition for Review File, Tab 1 at 6-10.
These contentions, however, are not material to the timeliness issue. We have also
considered the appellant’s other assertions, to include his ostensible argument that OSC
and the administrative judge, in failing to sufficiently consider the merits of his claims,
violated his due process rights and/or committed harmful procedural errors; however,
we find that these assertions do not provide a basis to toll the statutory filing deadline
or disturb the initial decision. Id.; see 5 U.S.C. § 1214(a)(3)(A). 2
Here, the appellant disagreed with OSC’s determination to close its
investigation into his complaint, and he requested that OSC conduct a
higher-level review of the determination; he then apparently waited for OSC to
comply with this request while the statutory time limit for filing his IRA appeal
with the Board passed. Petition for Review (PFR) File, Tab 1 at 6-7; Initial
Appeal File, Tab 16 at 6-7.3 Neither the appellant’s disagreement with OSC’s
determination nor his request that OSC “senior management” conduct a higher-
level review provides a basis for equitable tolling. PFR File, Tab 1 at 6-7; see
Kalus v. Department of Homeland Security , 123 M.S.P.R. 226, ¶ 10 (2016)
(explaining that an appellant’s request for OSC to reopen a matter does not
impact the deadline to file an IRA appeal with the Board); see also Gingery v.
Office of Personnel Management , 119 M.S.P.R. 43, ¶¶ 16-18 (2012) (finding that
the appellant’s allegation that he was waiting for the Office of Personnel
Management to reconsider a decision while a statutory filing deadline passed did
not support equitable tolling).
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
3 The appellant did not discernably argue that he did not timely receive OSC’s
November 17, 2021 final decision letter; rather, he argued that the letter did not
constitute OSC’s final decision, apparently because he believed that he was entitled to
internal higher-level review of OSC’s determination to terminate its investigation. IAF,
Tab 16 at 6-7. Indeed, despite submitting a copy of OSC’s final decision letter, which
explicitly informed him of his Board appeal rights, the appellant seemingly maintains
that OSC has yet to provide him with a final decision. IAF, Tab 12 at 23-26, Tab 16
at 6-7; PFR File, Tab 1 at 7.
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 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. 115-195,6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Wade_Joseph_E_AT-1221-22-0179-W-1_Final_Order.pdf | 2024-02-02 | JOSEPH E. WADE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-22-0179-W-1, February 2, 2024 | AT-1221-22-0179-W-1 | NP |
2,449 | https://www.mspb.gov/decisions/nonprecedential/Porter_Kathy_H_CH-0752-17-0010-C-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHY H. PORTER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-17-0010-C-1
DATE: February 1, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kathy H. Porter , Rochester, Kentucky, pro se.
Thao Pham , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon, Member
ORDER
The appellant has filed a petition for review of the compliance initial
decision, which granted in part and denied in part her petition for enforcement.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the compliance initial
decision.
In an April 28, 2017 initial decision that became the final decision of the
Board after neither party filed a petition for review, the administrative judge
found the appellant’s retirement to be involuntary and ordered the agency to
reverse her separation and to restore her effective October 1, 2014. Porter v. U.S.
Postal Service, MSPB Docket No. CH-0752-17-0010-I-1, Initial Decision
(Apr. 28, 2017). The administrative judge also ordered the agency to pay the
appellant “the appropriate amount of back pay, with interest[,] and to adjust
benefits with appropriate credits and deductions as required by Postal Service
regulations no later than 60 calendar days after the date of the final decision of
the Board.” Id. On October 10, 2017, the agency sent the appellant a letter of
compliance indicating the following: (1) on or about May 27, 2017, the agency
placed the appellant in a Part-Time Flexible (PTF) Sales, Service Distribution
Associate position at the hourly rate of $29.42 with an effective date of
September 30, 2014; (2) the agency calculated her gross back pay to be
$100,918.64 and her adjusted gross back pay after wage offsets to be $29,657.25;
(3) on July 17, 2017, she received a back pay check (after deductions and taxes)
in the amount of $1,440.52; (4) on August 16, 2017, the appellant received the
interest on her back pay in the amount of $1,738.36; and (5) as of August 2017,
the agency restored the appellant’s sick and annual leave. Porter v. U.S. Postal2
Service, MSPB Docket No. CH-0752-17-0010-C-1, Compliance File (CF), Tab 1
at 14, 16.
On November 13, 2017, the appellant filed a petition for enforcement
alleging that the agency was not in compliance with the Board’s final order
because it did not fully restore her annual leave, improperly deducted a Pay for
Performance (PFP) bonus and union dues from her back pay, failed to correctly
calculate the interest on her back pay, failed to file the proper forms with the
Office of Personnel Management (OPM) to allow her to recover insurance
premiums deducted from her annuity while she was retired, and overcharged her
for insurance premiums from January 2016 through present. Id. at 2. In
response, the agency asserted that it had complied with the Board’s order as
indicated in its October 10, 2017 compliance letter and provided documents
demonstrating its efforts to calculate and provide the appellant the back pay and
benefits to which she was entitled. CF, Tab 3. After the administrative judge
issued a close of record order, the parties submitted closing briefs reiterating their
respective positions. CF, Tabs 6, 8-9. In a compliance initial decision based on
the written record, the administrative judge granted, in part, and denied, in part,
the appellant’s petition for enforcement. CF, Tab 15, Compliance Initial Decision
(CID).
The appellant has filed a petition for review of the compliance initial
decision, asking the Board for review without identifying any particular error by
the administrative judge. Compliance Petition for Review (CPFR) File, Tab 1.
The agency has not responded.
ANALYSIS
When the Board finds a personnel action unwarranted, the aim is to place
the appellant, as nearly as possible, in the situation she would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy ,3
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam , 167 F. App’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board’s order
by a preponderance of the evidence.2 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
As noted above, the administrative judge granted, in part, the appellant’s
petition for enforcement. In particular, he found that the agency was not in
compliance with the Board’s order to the extent that it deducted her 2014 PFP
bonus and union dues from her back pay. CID at 10-13. Although the
administrative judge found that the agency used the proper method to calculate
the interest owed on the appellant’s back pay, he found that the agency did not
pay the proper amount of interest due to its improper deduction of the PFP bonus
and union dues. CID at 14-15. In addition, he observed that, although there was
no dispute as to her placement in the Sales, Service Distribution Associate
position, there was a dispute as to the effective date of her placement in that
position. CID at 3 n.2. Accordingly, he ordered the agency to pay the appellant
the appropriate amount of back pay plus interest consistent with his findings, to
provide her with an explanation of its updated back pay calculations, and to
ensure the correct effective date of her placement in the Sales, Service
Distribution Associate position. CID at 17. The parties have not challenged the
administrative judge’s findings of noncompliance, and we discern no basis to
disturb them.
The administrative judge also denied, in part, the appellant’s petition for
enforcement, finding that she did not rebut the agency’s evidence showing that it
2 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
restored the proper amount of annual leave to her and deducted the correct
amount for health insurance premiums from her back pay. CID at 8-9, 15-17.
Regarding annual leave, he agreed with the agency that the maximum amount of
annual leave that could be restored as a result of corrective action for an
employee like the appellant—i.e., a nonpreference-eligible, Executive and
Administrative Schedule employee—was 560 hours. CID at 8-9 (citing the
Employee and Labor Relations Manual §§ 436.2.d and 512.321). Thus, he found
that the agency demonstrated compliance by showing that, as of September 14,
2017, the appellant had 639 hours of annual leave, which included both the
annual leave restored to her as part of her back pay award as well as the leave she
accrued following her restoration to duty in May 2017. CID at 9; CF, Tab 3
at 41. Although he acknowledged the appellant’s frustration at not receiving all
the annual leave she would have received had she not retired, he concluded that
she failed to rebut the agency’s evidence showing that it restored the maximum
amount of annual leave to which she was entitled. CID at 9. The appellant has
not specifically challenged this finding on review, CPFR File, Tab 1, and we
discern no basis to disturb it.
Regarding the health insurance premiums, the record reflects that the
agency deducted $13,966.02 from the appellant’s back pay award for retroactive
health benefits from October 1, 2014, through June 6, 2017. CID at 15; CF,
Tab 3 at 11-12, 25, Tab 9 at 15. The appellant argued below that the agency
should have deducted health insurance premiums at a lower rate from
January 2016 through the date of her reinstatement because she changed her
health insurance plan with OPM from a family plan to a “Self Plus One” in
January 2016. CF, Tab 8 at 5-6. However, the administrative judge found that
the appellant did not provide any evidence to establish the specific premiums she
paid or when she paid them, and thus he concluded that she failed to rebut the
agency’s evidence of compliance. CID at 16-17. The appellant does not
specifically challenge this finding on review, CPFR File, Tab 1, and we agree5
with the administrative judge that the appellant has not rebutted the agency’s
evidence that it deducted the appropriate amount of health insurance premiums
from her back pay, CF, Tab 3 at 11-12, 25, Tab 9 at 15.3
In light of the foregoing, we affirm the administrative judge’s findings in
the compliance initial decision. Outstanding issues of compliance remain with
respect to the agency’s payment of the 2014 PFP bonus and union dues that were
improperly deducted from the appellant’s back pay award, as well as the
calculation of interest owed to the appellant. CID at 9-15, 17. On September 6,
2018, the agency submitted a compliance letter describing its efforts to comply
with the compliance initial decision under Porter v. U.S. Postal Service , MSPB
Docket No. CH-0752-17-0010 -X-1, which is currently pending in the Board’s
Office of General Counsel. The appellant’s petition for enforcement will
therefore be referred to the Board’s Office of General Counsel, and, depending on
the nature of the submissions, an attorney with the Office of General Counsel
may contact the parties to further discuss the compliance process. The parties are
required to cooperate with that individual in good faith. Because the purpose of
the proceeding is to obtain compliance, when appropriate, an Office of General
Counsel attorney or paralegal may engage in ex parte communications to, among
other things, better understand the evidence of compliance and/or any objections
to that evidence. Thereafter, the Board will issue a final decision fully addressing
the appellant’s petition for review of the compliance initial decision and setting
forth her further appeal rights and the right to attorney fees, if applicable.
3 The administrative judge acknowledged that there were outstanding issues regarding
the amount OPM reimbursed the appellant for health insurance premiums deducted from
her annuity while she was retired. CID at 5, 16; CF, Tabs 10, 12-14. However, he
found that any dispute regarding the reimbursement amount paid by OPM to the
appellant was not relevant to the compliance at issue in this appeal and was instead a
dispute between the appellant and OPM. CID at 16 . Moreover, he found that the
agency acted with due diligence in working with OPM to ensure the appellant was
appropriately reimbursed. Id. We agree with these findings. 6
ORDER
The appellant may respond to the agency’s September 6, 2018 submission
within 20 days of the date of this Order. 5 C.F.R. § 1201.183(a)(8). If the
appellant does not respond to the agency’s evidence of compliance, the Board
may assume that she is satisfied with the agency’s actions and dismiss the petition
for enforcement. The appellant’s response should be filed in the compliance
referral matter currently pending in the Board’s Office of General Counsel,
MSPB Docket No. CH-0752-17-0010 -X-1. All subsequent filings should refer to
MSPB Docket CH-0752-17-0010 -X-1 and should be faxed to (202) 653-7130 or
mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the Office of the General Counsel of the Merit
Systems Protection Board to show cause why the Board should not impose
sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183(a).
The Board’s authority to impose sanctions includes the authority to order that the
responsible agency official “shall not be entitled to receive payment for service as
an employee during any period that the order has not been complied with.”
5 U.S.C. § 1204(e)(2)(A).7
This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
the remaining issues in this petition for enforcement, a final order shall be issued,
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Porter_Kathy_H_CH-0752-17-0010-C-1_Order.pdf | 2024-02-01 | KATHY H. PORTER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-17-0010-C-1, February 1, 2024 | CH-0752-17-0010-C-1 | NP |
2,450 | https://www.mspb.gov/decisions/nonprecedential/LaForge_Kim_S_PH-0752-15-0435-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIM S. LAFORGE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
PH-0752-15-0435-I-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
W. Scott LaForge , Carolina, Puerto Rico, for the appellant.
Aaron Baughman , Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her separation by involuntary workforce reduction (IWR). 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).
2
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 by this Final Order to find
that the Board has jurisdiction over the appellant’s allegation of age
discrimination, and to adjudicate that allegation, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed in the agency’s Office of Security Operations
(OSO) as a Transportation Security Manager (TSM), SV-1801-I, at the Barnstable
Municipal Airport located on Cape Cod, Massachusetts. Initial Appeal File
(IAF), Tab 8 at 29. In December 2014, three of the appellant’s managers visited
her to discuss an upcoming IWR. IAF, Tab 30, Hearing Compact Disc (HCD)
(testimony of the appellant). The managers told her that her position would be
eliminated, and she was being reassigned to a vacant TSM position at Boston’s
Logan International Airport. Id. The reassignment, however, did not occur.
3
In March 2015, the agency implemented the IWR2 within OSO to abolish a
number of TSM positions that it determined were no longer necessary. IAF,
Tab 8 at 74-77. The agency sent out notices to affected TSMs, including the
appellant. Id. at 70; IAF, Tab 30, HCD (testimony of the appellant). The notice
informed the appellant that she would be required to find a new position during
one of two stages of the IWR. During stage one, she would be able to request
voluntary placement into 1 of 12 vacant positions in the Boston hub/spoke, at or
below her current pay band, subject to agency determination of her qualifications.
IAF, Tab 8 at 68, 70-71. If the appellant did not secure a position during stage
one, she would have the opportunity to move onto stage two and compete for
vacancies on a nationwide level. Id. at 70-73.
The stage one list of 12 vacant positions did not include the TSM position
referenced by the three agency managers who met with the appellant prior to
issuance of the notices. Id. at 68. The appellant chose three of the vacant
positions listed in stage one for voluntary placement–Supervisory Human
Resources (HR) Specialist, Nonsupervisory HR Specialist, and Assistant Federal
Security Director -Generalist (AFSD -G). Id. at 67-68. The agency informed the
appellant that she was not qualified for the HR positions, and that, although she
was qualified for the AFSD -G position, she was not eligible because that position
was in a professional series, with more opportunities for pay band promotion than
the series she currently occupied. Id. at 67. The lengthy list of stage two
vacancies that the appellant would have to compete for, however, included the
TSM position in Boston, and the agency selected her to fill it. Id. at 35, 38-59.
2 The agency’s IWR procedures are similar to reduction in force (RIF) procedures;
however, the two procedures are not identical. Title 5 RIF provisions are not applicable
to the TSA. See Garofalo v. Department of Homeland Security , 108 M.S.P.R. 169,
¶¶ 7-8 (2008). Instead, the agency applies its internal IWR policy, Human Capital
Policy No. 351-3. IAF, Tab 8 at 195-218. In this nonprecedential decision, we use the
acronym IWR when the acronym RIF would be used in a separation pursuant to
5 C.F.R. part 351. Despite the fact that Title 5 RIF procedures are inapplicable to the
TSA, the Standard Form 50 effecting the appellant’s separation indicates that the nature
of the action is “separation-RIF.” Id. at 29.
4
The appellant declined the position. Id. at 34. The agency then offered her a
lower-graded Transportation Security Officer position at Barnstable Municipal
Airport. Id. at 33. She also declined the lower-level position, and the agency
separated her from service. Id. at 29-33.
The appellant filed a Board appeal, alleging that she was treated unfairly
during the IWR by not being given the AFSD-G position merely because it was in
a different job series. IAF, Tab 1 at 4. She also alleged that, during an earlier
IWR, employees had been allowed to “jump job series,” id., and that the agency
engaged in age discrimination by not allowing her to do so. IAF, Tab 28 at 3.
The administrative judge found that the agency complied with its
regulations governing reorganization and realignment. IAF, Tab 32, Initial
Decision (ID) at 9-10. Regarding the appellant’s assertion that she was treated
differently from two employees who, during an earlier IWR, were allowed to
circumvent restrictions on what job series they were allowed to transfer into, the
administrative judge found that this prior placement violated agency procedures
and the agency was not required to continue to violate its procedures for the
appellant’s benefit. ID at 9. He also found that the appellant failed to show that
the agency managers actively misled her by telling her that she would be
reassigned to Boston prior to the IWR, or that she mistakenly relied upon
information provided by agency managers regarding her ability to transfer to a
position listed in stage one of the IWR, information that allegedly caused her to
limit her selection of positions on the stage one list, a decision that later turned
out to be detrimental to her interests. ID at 10.
In addition, the administrative judge found that the Board does not have
jurisdiction over the appellant’s allegation of age discrimination. He found that
her discrimination allegation was not based on a claim that the agency separated
her while retaining younger employees impacted by the reassignment. ID at 11.
Rather, her claim was based on her assertion that the agency permitted two
younger employees to circumvent restrictions on what job series they were
5
allowed to transfer into during an earlier IWR, while the agency did not allow her
to do so in her transfer request during phase one of the IWR process. He
characterized the denial of her transfer request as a nonselection, and found that
her discrimination allegation in the nonselection was beyond the scope of the
action over which the Board has jurisdiction, her separation. ID at 11-12.
In her petition for review, the appellant asserts that the administrative
judge erred in denying two of her requested witnesses and that he was biased
against her in his description of the facts and rulings on witnesses.3 Petition for
Review (PFR) File, Tab 2 at 8, 10-11.4 She also asserts, as she did below, that
she was deceived by her supervisors into believing that she would get any
position she requested during stage one, including the AFSD-G position. Id.
at 8-11. She asserts that she had been performing the AFSD-G position duties for
more than 9 years and that that position still exists at Barnstable.5 Id. at 9. The
agency has filed a response to the petition for review. PFR File, Tab 4.
3 On review, the appellant states that the agency did not provide some documents to her
during the processing of her appeal that she requested about jobs that were provided to
other employees. PFR File, Tab 2 at 8. She states, however, that the information that
she sought through the documents was provided through the testimony of the agency’s
witness. Id. She does not indicate that she sought this information through discovery
and does not explain how her case was harmed by the agency’s failure to provide these
documents.
4 The appellant filed two identical petitions, one timely filed by facsimile transmittal,
PFR File, Tab 1, and one by e-filing, PFR File, Tab 2. For ease of reference, we cite to
the e-filed petition for review at Tab 2.
5 The appellant also alleges that the agency violated 5 U.S.C. § 2302(b)(4), which
prohibits deceiving or willfully obstructing any person regarding such person’s right to
compete for employment, and section 2302(b)(6), which prohibits granting any
preference or advantage not authorized by law, rule, or regulation to any employee or
applicant for employment to improve or injure the prospects of any particular person for
employment. PFR File, Tab 1 at 11. The appellant raises these allegations for the first
time on review. IAF, Tab 28 (Summary of Prehearing Conference). We decline to
consider this argument because the appellant has not shown that it is based on new and
material evidence not previously available despite her due diligence. Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980).
6
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not shown that the administrative judge was biased.
In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if his comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362 -63 (Fed.
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 (1994)); Smets v.
Department of the Navy , 117 M.S.P.R. 164, ¶ 15 (2011), aff’d, 498 F. App’x 1
(Fed. Cir. 2012). The appellant’s allegations on review, which do not relate to
any extrajudicial conduct by the administrative judge, do not satisfy that standard.
The administrative judge did not abuse his discretion in denying two of the
appellant’s witnesses.
The appellant requested two witnesses to testify about the emotional impact
that the IWR process had on her, about the unfairness of the process, and about
how agency employees were not informed and were confused during the IWR
process. IAF, Tab 23 at 13-14. The administrative judge denied these witnesses,
finding that such testimony was not relevant to the issue of whether the agency
followed its internal IWR procedures. IAF, Tab 28 at 6-7. On review, the
appellant contends that the administrative judge’s decision to deny these
witnesses was detrimental to her case. PFR File, Tab 2 at 8.
It is well established that administrative judges have broad discretion to
regulate the proceedings before them, including the discretion to exclude
witnesses. See Fritz v. Department of Health and Human Services , 87 M.S.P.R.
287, ¶ 15 (2000); Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985)
(stating that an administrative judge has wide discretion under 5 C.F.R.
§ 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their
7
testimony would be relevant, material, and nonrepetitious). Here, the appellant
has failed to show that the denied witnesses would have given testimony relevant
to the agency’s application of the IWR procedures to her. To the extent that they
could have corroborated the appellant’s assertions that agency managers did not
provide sufficient information when conducting the IWR and that employees were
confused about the IWR process, she herself had the opportunity to testify about
the IWR process and employees’ understanding of it. HCD (testimony of the
appellant). She also elicited testimony from agency officials who implemented
the IWR. HCD (testimony of Human Resources Specialist). We therefore find
that the administrative judge did not abuse his discretion in denying these
witnesses.
The Board’s scope of review of the IWR is the same as its scope of review in a
reduction in force (RIF) under 5 C.F.R. part 351.
The Board has jurisdiction over an appeal challenging the RIF separation of
an excepted-service TSA employee. See Wilke v. Department of Homeland
Security, 104 M.S.P.R. 662, ¶ 16 (2007). However, under 49 U.S.C. § 114(n),
TSA has the authority to modify the RIF procedures applicable to its
excepted-service employees, id., ¶ 22, and it has done so, implementing
procedures for an IWR, IAF, Tab 8 at 195-218 (Human Capital Management
(HCM) Policy No. 351-3); see Garofalo v. Department of Homeland Security ,
108 M.S.P.R. 169, ¶¶ 7-12 (2008).
The U.S. Court of Appeals for the Federal Circuit has held that “[a]n
agency is accorded wide discretion in conducting a [RIF]; absent a clear abuse of
that discretion, a substantial departure from applicable procedures, a
misconstruction of governing statutes, or the like, we do not upset a final agency
decision.” Cooper v. Tennessee Valley Authority , 723 F.2d 1560, 1562 (Fed. Cir.
1983) (quoting Dancy v. United States , 229 Ct. Cl. 300 (1982)); Garofalo,
108 M.S.P.R. 169, ¶ 15. We recognize that the IWR procedures at issue here
differ from traditional RIF procedures. However, we find that, even in a case
8
such as this, when the workforce reduction is implemented under unique
procedures, the Board is afforded only a limited scope of review. See Pettis v.
Department of Health and Human Services , 803 F.2d 1176, 1179 (Fed. Cir.
1986); Cooper, 723 F.2d at 1562; Garofalo, 108 M.S.P.R. 169, ¶ 5. We have
provided the appropriate scope of review in this case.
The agency properly applied its IWR procedures to the appellant’s TSM position.
The appellant does not dispute that HCM Policy No. 351-3 contains the
standards by which the agency’s action in this appeal should be evaluated. HCM
Policy No. 351-3 encourages management officials to consider a number of
options before initiating IWR separations. IAF, Tab 8 at 198. These options
include implementing hiring freezes, encouraging voluntary actions such as
resignations or retirements, directing the reassignment of employees to other
locations, and offering employees within affected organizations the opportunity to
volunteer for IWR separations. Id. at 198-99. The policy does not require any of
the enumerated options to be used in any particular case, however. Id. Once
employees are identified for separation pursuant to IWR procedures, HCM Policy
No. 351-3 authorizes management officials to offer those employees other
positions within TSA, and states that, before alternative positions are offered, the
employees must be fully qualified for placement in the alternative positions. Id.
at 205. Such offers are not required, however. Id. The policy also states that
employees identified for separation do not have assignment rights (bump or
retreat rights). Id. The IWR procedures are applied to employees based on their
positions of record. Id. at 200.
Although the appellant argued that she had been performing the AFSD -G
position duties for years before the agency initiated the IWR at issue, that job was
not her position of record. HCM Policy No. 351-3 defines “position of record”
as:
9
The employee’s permanent position, as documented on the
Notification of Personnel Action (SF-50 or equivalent), the current
job description, and any other pertinent job documentation for the
employee’s current, permanent position. The position of record is
defined by the employee’s permanent pay band, occupational
category, job series, work schedule type, and any other conditions
that determine coverage under human capital management systems.
Id. at 197. A position to which an employee is temporarily assigned, i.e.,
detailed, acting, or temporarily promoted, is not considered the position of record
for that position. Id. The record establishes that the appellant’s position of
record was TSM SV-1801-I. Id. at 29. Thus, the agency correctly used that
position in determining the appellant’s proper placement during the IWR.
The appellant’s TSM position was in the I-band. Id. In the agency’s notice
of opportunity to request voluntary placement, it stated that stage one placements
only would be to positions at the same pay band and with the same pay band
opportunity or to a lower pay band with no greater opportunity than previously
held. Id. at 70. The appellant requested voluntary placement into the three
I-band positions on the vacancy list provided, including the AFSD -G position.
Id. at 68. The agency explained to the appellant, however, that, although she
qualified for the position, she was ineligible for placement in it under
noncompetitive procedures. Id. at 67. The agency further explained that the
appellant’s TSM position had the promotion potential to the I -band, while the
AFSD-G position was in the professional category and had the promotion
potential of a higher level, the L -band. Id. at 64-65. The agency stated that its
Management Directives/Handbook provides that an employee must compete for
entry into a different job category that has a higher promotion potential. Id.
at 64. The agency indicated that it listed the AFSD -G position on the stage one
list that the appellant received because other TSMs, who also received the list,
may have held professional category positions in the past and thus might have
been eligible for placement into that job category without competition. Id. The
agency’s explanation for the appellant’s nonselection into the AFSD -G position is
10
consistent with the official information that it provided the appellant regarding
stage one of the IWR. This determination was within the agency’s discretion,
i.e., during stage one, only making placements to positions at the same pay band
and with the same pay band opportunity. IAF, Tab 8 at 70; Cooper, 723 F.2d
at 1562. We therefore disagree with the appellant that the agency misled her into
believing that she would get any position she requested during phase one,
including the AFSD -G position.
The Board does have jurisdiction over the appellant’s claim of age discrimination.
The appellant contended below that the agency unfairly failed to offer her
reassignment to a vacant AFSD -G position during stage one of the IWR process,
i.e., the offer of vacant positions, based on her age, and thus the agency
implemented HCM Policy No. 351-3 discriminatorily. As noted above, the
administrative judge treated the appellant’s claim as an allegation of nonselection
for the AFSD-G position, rather than as an allegation of discrimination in the
conduct of the IWR. As explained below, however, under the circumstances of
this case, the appellant’s claim that she was not offered the vacant AFSD -G
position because of her age rises to an allegation of discrimination in the conduct
of the IWR.
As noted above, HCM Policy No. 351-3 does not require the offer of vacant
positions to employees identified for potential separation. It states that “[a]n
employee whose position is eliminated and who is identified for potential
separation may be offered another vacant TSA position.” IAF, Tab 8 at 205
(emphasis in original). However, the agency’s use of this alternative at stage one
of the IWR makes it part of the IWR. As such, any improper motivation in
extending the offers of vacant TSA positions during the IWR, including any age
discrimination in violation of the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 631, 633a, may taint the IWR. Cf. Decker v. Department
of Health and Human Services , 40 M.S.P.R. 119, 127 (1989) (finding that, even
though an agency establishes that a RIF was conducted for a valid management
11
reason, its improper motivation will taint the RIF). We therefore disagree with
the administrative judge that the appellant’s nonselection for the AFSD -G
position was a nonselection outside of the IWR process.
In Garofalo, the appellant raised a claim of age discrimination in his
separation under IWR procedures. The Board found that, because the record was
fully developed, the inquiry was whether Mr. Garofalo met his ultimate burden of
proving that his age was a determinative factor in the action. Thus, the Board
reviewed all of the evidence to determine whether the agency intentionally
discriminated against Mr. Garofalo. Garofalo, 108 M.S.P.R. 169, ¶ 19; Jackson
v. U.S. Postal Service , 79 M.S.P.R. 46, 51-52 (1998). Here, the record is fully
developed. Thus, we have reviewed all the evidence to determine whether the
appellant established her allegation of age discrimination.
In Wingate v. U.S. Postal Service , 118 M.S.P.R. 566, ¶ 7 (2012), the Board
held that a Federal employee may prove age discrimination by showing that age
was “a factor” in the personnel action, even if it was not a but-for cause. Id., ¶ 7.
In this case, the appellant has provided no evidence to support her
allegation that her age was a factor in the agency’s decision. She contends that,
during an earlier IWR, the agency allowed two similarly situated younger
employees to transfer to positions with greater promotion potential, but because
of her age, it did not afford her similar treatment. However, the appellant has
provided no evidence to support her assertion that this difference in treatment was
motivated by age discrimination. See Wingate, 118 M.S.P.R. 566, ¶ 9 (finding
that the appellant’s speculation about the agency’s motives does not establish that
age was a factor in the agency’s actions). Additionally, the violation of the rule
did not relate to the agency’s actions in the current IWR that resulted in the
appellant’s separation, but related to actions in a different IWR that occurred a
year earlier. Because the appellant’s evidence is insufficient to establish that her
age was a factor in the agency’s decision not to transfer her into the vacant
12
AFSD-G position, we find that she failed to prove her claim of age
discrimination.6
Accordingly, we affirm the initial decision, as modified by this Final
Order.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
6 Because the appellant failed to show that her age was a motivating factor in the
agency’s decision to separate her, we do not reach the question of whether age was a
but-for cause of her separation. See Johnson v. Department of Veterans Affair s,
2023 MSPB 9, ¶ 5 n.2
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.
13
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
14
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:
15
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.
16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board | LaForge_Kim_S_PH-0752-15-0435-I-1_Final_Order.pdf | 2024-02-01 | KIM S. LAFORGE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-0752-15-0435-I-1, February 1, 2024 | PH-0752-15-0435-I-1 | NP |
2,451 | https://www.mspb.gov/decisions/nonprecedential/Long_Scott_DC-1221-19-0606-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT LONG,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.DOCKET NUMBER
DC-1221-19-0606-W-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Scott Long , Reston, Virginia, pro se.
Claudine Landry , Esquire, and Obed B. Morales , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant asserts that the agency’s conduct
evidences a violation of 5 U.S.C. § 7116, the prohibition against unfair labor
practices, and 5 U.S.C. § 7117(d)(2), the requirement that a labor organization
having consultation rights “be informed of any substantive change in conditions
of employment proposed by the agency” and “be permitted reasonable time to
present its views and recommendations regarding the changes.” Petition for
Review File, Tab 1 at 5-7. For the reasons stated in the initial decision, the
appellant failed to nonfrivolously allege that he made a protected disclosure under
5 U.S.C. § 2302(b)(8). Initial Appeal File (IAF), Tab 8, Initial Decision at 5-9.2
2 Although the appellant alleged below that the agency violated 5 U.S.C. § 2302(b)(9)
when it denied him a promotion, the administrative judge did not address this allegation
in the initial decision. IAF, Tab 1 at 5, 172. The administrative judge, however,
properly advised the appellant of the jurisdictional requirements for an IRA appeal
based on a claim of retaliation for a protected disclosure under 5 U.S.C. § 2302(b)(8)
and for protected activity under 5 U.S.C. § 2302(b)(9). IAF, Tab 3. The appellant does
not raise a claim under 5 U.S.C. § 2302(b)(9) on review and has not provided a basis for
disturbing the initial decision under the circumstances. 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 you wish to challenge the Board’s rulings on your whistleblower claims5
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.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 | Long_Scott_DC-1221-19-0606-W-1__Final_Order.pdf | 2024-02-01 | SCOTT LONG v. SMALL BUSINESS ADMINISTRATION, MSPB Docket No. DC-1221-19-0606-W-1, February 1, 2024 | DC-1221-19-0606-W-1 | NP |
2,452 | https://www.mspb.gov/decisions/nonprecedential/Kubisiak_James_E_CH-844E-18-0406-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES E. KUBISIAK,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-18-0406-I-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
. Brian Henson , Esquire, and Christopher Vaughn , Decatur, Georgia, for
the appellant.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management denying the
appellant’s application for disability retirement. On petition for review, the
appellant challenges the administrative judge’s finding that he is not entitled 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).
benefits. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 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:
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 | Kubisiak_James_E_CH-844E-18-0406-I-1_Final_Order.pdf | 2024-02-01 | JAMES E. KUBISIAK v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-18-0406-I-1, February 1, 2024 | CH-844E-18-0406-I-1 | NP |
2,453 | https://www.mspb.gov/decisions/nonprecedential/Drevaleva_Tatyana_E_DE-0752-19-0097-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TATYANA E. DREVALEVA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-19-0097-I-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tatyana E. Drevaleva , Daly City, California, pro se.
Mark Zorfas , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction without a hearing. On petition for
review, the appellant argues that her appeal concerns constitutional violations and
that the administrative judge was biased against her. 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.2 Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. §
1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 We note in particular that the Board does not have standalone jurisdiction to
adjudicate alleged violations of an individual’s constitutional rights. Moore v.
Department of State , 15 M.S.P.R. 488, 489-90 (1983), aff’d, 765 F.2d 159
(Fed.Cir.1985) (Table); Riddick v. Department of the Navy , 41 M.S.P.R. 369, 372
(1989). The types of appeals that the Board can hear are set forth in sections 1201.2
and 1201.3 of title 5 of the Code of Federal Regulations.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and 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.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
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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Drevaleva_Tatyana_E_DE-0752-19-0097-I-1__Final_Order.pdf | 2024-02-01 | TATYANA E. DREVALEVA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-19-0097-I-1, February 1, 2024 | DE-0752-19-0097-I-1 | NP |
2,454 | https://www.mspb.gov/decisions/nonprecedential/Yabraian_Francesca_P_DC-0752-18-0143-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCESCA PERLA YABRAIAN,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-18-0143-I-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ryan Torrens , Tampa, Florida, for the appellant.
Rachel Trafican , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as untimely filed. 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 petition for review, the appellant argues that she has additional
evidence to show that her appeal was timely filed. She also contends that, before
the close of the record below, she attempted to file that evidence, but due to
“technological error,” the pleading was not filed . Under 5 C.F.R. § 1201.115, 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. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980). The appellant has made no such showing. The
additional evidence that the appellant submits with her petition was available to
her before the close of the record below. Further, the appellant’s assertion that
she attempted to file that evidence into the record below is unavailing. She does
not explain the alleged “technical error” she references as the cause of her failing
to submit the emails into the record before the administrative judge.
Additionally, there is no showing that the appellant made any effort to bring the
“technical error” to the administrative judge’s attention in an attempt to resolve
this alleged error before the close of record. Thus, there is no basis for the Board
to consider the evidence. 2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Yabraian_Francesca_P_DC-0752-18-0143-I-1_Final_Order.pdf | 2024-02-01 | FRANCESCA PERLA YABRAIAN v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-18-0143-I-1, February 1, 2024 | DC-0752-18-0143-I-1 | NP |
2,455 | https://www.mspb.gov/decisions/nonprecedential/Dugas_Michael_P_PH-0752-18-0104-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL P. DUGAS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-18-0104-I-1
DATE: February 1, 2024
THIS ORDER IS NONPRECEDENTIAL1
Amanda Moreno , Esquire, and Gary Poretsky , Esquire, Houston, Texas,
for the appellant.
Scott W. Flood , Esquire, Portsmouth, New Hampshire, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND 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
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 held the position of Welder at the Portsmouth Naval
Shipyard. Initial Appeal File (IAF), Tab 5 at 28-30. In September 2016, officers
from the Kittery Police Department responded to a domestic disturbance that
occurred while the appellant was off-duty, involving him and his brother. E.g.,
IAF, Tab 6 at 110-12. Generally speaking, witness statements indicate that this
altercation included the appellant firing a gun several times, without hitting
anything of consequence, and his brother striking the appellant’s vehicle with an
ax. Id. Police arrested both. IAF, Tab 6 at 112, Tab 50 at 19. In the days that
followed, the agency barred the appellant from the shipyard and placed him in a
non-duty pay status. IAF, Tab 6 at 107. Several months later, in January 2017,
the appellant resolved the criminal matter by pleading guilty to a single count of
reckless conduct. IAF, Tab 50 at 92-98.
In July 2017, the agency proposed the appellant’s removal for criminal
conduct unbecoming. IAF, Tab 5 at 135-39. The deciding official sustained the
charge and removed the appellant, effective November 13, 2017. Id. at 28-30.
The appellant timely challenged his removal by filing the instant appeal.
IAF, Tab 1. In April 2018, the agency informed the administrative judge that it
had discovered an unspecified error and would soon cancel the removal action.
IAF, Tab 13 at 4-5. However, the agency indicated that it would not be returning
him to work, implying that it intended to correct the unspecified error and remove
the appellant again. IAF, Tab 13 at 4-5, Tab 14 at 4.
Over the following months, the parties worked to reach an agreement about
outstanding matters, but those efforts were unsuccessful. IAF, Tabs 18-19, 24.
The agency then filed a motion to dismiss this appeal as moot. IAF, Tab 25 at 4.
In support of its motion, the agency indicated that it had cancelled the appellant’s
removal, and it provided a sworn declaration regarding back pay. IAF, Tab 27
at 7. The appellant opposed the motion to dismiss, arguing that he had not yet
received all the back pay and benefits to which he was entitled. IAF, Tab 28 at 2.2
The administrative judge informed the parties of the Board’s standards
regarding mootness and status quo ante, and indicated that the record was not
sufficiently developed on the matter. Id. at 2-4. Consequently, both parties filed
additional arguments and evidence. IAF, Tabs 29-30. After reviewing the
parties’ submissions, the administrative judge requested more information, IAF,
Tab 31, and both parties responded once more regarding mootness and status quo
ante relief, IAF, Tabs 32, 35.
Without any resolution to the dispute over the appellant’s return to status
quo ante, the agency reversed course and filed a motion to proceed to a hearing,
citing the extensive delays that it attributed to the appellant. IAF, Tab 36. The
administrative judge acquiesced. IAF, Tab 37.
After further developing the record and holding the requested hearing, the
administrative judge issued an initial decision that affirmed the cancelled removal
action. IAF, Tab 61, Initial Decision (ID). The appellant has filed a petition for
review. Petition for Review (PFR) File, Tab 1. The agency has filed a response.
PFR File, Tab 3.
On review, the appellant argues that the administrative judge erred by
adjudicating a cancelled removal rather than his return to status quo ante. PFR
File, Tab 1 at 6-7. In the alternative, the appellant presents a number of
arguments about the merits of the cancelled removal action. Id. at 7-13. The
agency filed a response. PFR File, Tab 3.
The Clerk of the Board issued an order, instructing the parties to provide
additional information regarding mootness and status quo ante relief from the
cancelled removal action. PFR File, Tab 4. The appellant responded, arguing
that the agency still owed him overtime pay, annual leave hours, compensatory
time, reimbursement for work boots, and a return to duty. PFR File, Tab 5. The
agency disagreed, arguing that the appellant received all the relief to which he
was entitled. PFR File, Tab 8. Notably, the agency indicated that it had
continued paying the appellant until March 2020, when the agency effectuated his3
removal, again, for the same conduct that formed the basis of its cancelled
removal action. Id. at 9-10. That alleged removal is not before us in this appeal.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred by affirming a cancelled removal action.
Once again, the agency cancelled the November 2017 removal action, but
the parties could not agree about whether the agency had returned the appellant to
status quo ante. Rather than reaching a conclusion about the disputed matter,
status quo ante relief, the administrative judge adjudicated and affirmed the
cancelled removal action. By doing so, the administrative judge erred.
In Kitt v. Department of the Navy , 116 M.S.P.R. 680 (2011), the Board
concluded that an agreement to cancel or rescind an adverse action required that
the associated Standard Form 50 (SF-50) be removed from an employee’s Official
Personnel File (OPF). To reach this conclusion, the Board relied on a decision by
the U.S. Court of Federal Appeals for the Federal Circuit, which found that to
“rescind” a record of an adverse action meant to “destroy it, erasing” it from the
employee’s professional record. Id., ¶ 7 (quoting Conant v. Office of Personnel
Management, 255 F.3d 1371 (Fed. Cir. 2001)). The Board also relied on
language from the Office of Personnel Management’s (OPM) Guide for
Processing Personnel Actions,2 which instructs agencies to remove an SF-50 that
documents a cancelled personnel action from an employee’s OPF. Id., ¶ 10
(citing Office of Personnel Management, Guide to Processing Personnel Actions ,
https://www.opm.gov/policy-data-oversight/data-analysis-documentation/
personnel-documentation/#url=Personnel-Actions (last visited Feb. 1, 2024)).
2 While OPM guides and handbooks lack the force of law, the Board has held that they
are entitled to deference in proportion to their power to persuade. See Warren v.
Department of Transportation , 116 M.S.P.R. 554, ¶ 7 n.2 (2011) (addressing an OPM
retirement handbook), aff’d, 493 F. App’x 105 (Fed. Cir. 2013); Luten v. Office of
Personnel Management , 110 M.S.P.R. 667, ¶ 9 n. 3 (2009) (granting “some deference”
to an OPM retirement Handbook). Here, we find that OPM’s Guide is persuasive for
explaining the consequences of an agency’s decision to rescind or cancel a personnel
action. 4
The Board in Kitt observed that to “cancel” an action meant “to bring [it] to
nothingness,” to “omit” or “to remove” it. Id., ¶ 8 (citing Webster’s Ninth New
Collegiate Dictionary 200 (9th ed. 1985)).
In the chapter of OPM’s guide covering cancellation and replacement
actions, OPM states that “[a] cancellation rescinds an earlier action that was
improper, that was proper but contains references to an improper action, or that
contains remarks that are inappropriate or erroneous and that should not have
been recorded.” Guide to Processing Personnel Actions , Ch. 32.2.b. It identifies
examples of situations where a cancellation is necessary, including where “[a]n
appointing officer determines an action should never have occurred . . . .” Id.
The guide further states that, “[w]hen a replacement action is required to erase the
effects of a cancelled action,” agencies should “record only the replacement
action, making no reference to the cancelled action.” Id. at Ch. 32.5.c. Finally, it
states that the cancellation SF-50 should not be included in the OPF, and agencies
should “remove from the OPF the personnel action (SF 50) being cancelled, the
related SF 52, and supporting documents . . . destroy[ing] the material removed
from the OPF.” Id. at Ch. 32.5.d.
In this case, while there remains a dispute about the return to status quo
ante, the agency has consistently acknowledged that it cancelled the appellant’s
removal. To do so, the agency returned him to a pay status, provided substantial
back pay, and purged his OPF of any reference to the November 2017 removal
action. E.g., IAF, Tab 30 at 16, Tab 32 at 7. Based on our interpretation of the
aforementioned authorities, the agency’s actions brought the November 2017
removal action to nothingness, rendering it legally inoperable. Accordingly, we
must vacate the administrative judge’s decision to affirm the cancelled
removal action. 5
The administrative judge must further develop the record and determine whether
the appellant has been returned to status quo ante.
Although an action may be within the Board’s jurisdiction, subsequent
events may render an appeal moot and foreclose the Board’s review. Rodriguez v.
Department of Homeland Security , 112 M.S.P.R. 446, ¶ 12 (2009). A case is
moot when the issues presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome of the case. Hess v. U.S. Postal Service ,
124 M.S.P.R. 40, ¶ 8 (2016). Mootness can arise at any stage of litigation, and an
appeal will be dismissed as moot if, by virtue of an intervening event, the Board
cannot grant any effectual relief in favor of the appellant. Rodriguez,
112 M.S.P.R. 446, ¶ 12 . However, an agency’s unilateral modification of its
personnel action after an appeal has been filed cannot divest the Board of
jurisdiction, unless the appellant consents to such divestiture or the agency
completely rescinds the action being appealed.3 Id.
For a rescission to be complete, the appellant must be returned to the status
quo ante and not left in a worse position as a result of the cancellation than he
would have been in if the matter had been adjudicated and he had prevailed. Id.
Accordingly, if the agency cancelled the appellant’s removal and returned him to
status quo ante, as it alleged, this appeal is moot and the Board is divested of
3 The Board has routinely held that if an appeal is not truly moot despite cancellation of
the action under appeal, the proper remedy is for the Board to retain jurisdiction and to
adjudicate the appeal on the merits. E.g., Price v. U.S. Postal Service ,
118 M.S.P.R. 222, ¶ 8 (2012). To the extent that the parties or administrative judge
may have construed this precedent otherwise, we note that the Board retains
jurisdiction, but adjudicates only the live issues that remain. See, e.g., Sabio v.
Department of Veterans Affairs , 124 M.S.P.R. 161, ¶¶ 3, 9, 44 (2017) (adjudicating a
discrimination claim, but not the underlying removal, where an agency rescinded the
removal after the appellant filed her appeal); Hess v. U.S. Postal Service,
123 M.S.P.R. 183, ¶¶ 6, 9-10 (2016) (finding that although an agency’s removal action
was rendered moot by its post-appeal rescission, associated equal employment
opportunity claims by the appellant required adjudication); Blyther v. U.S. Postal
Service, 112 M.S.P.R. 537, ¶¶ 3, 14 (2009) (adjudicating discrimination and reprisal
claims that remained after the agency rescinded the reduction in grade that formed the
basis for the appellant’s appeal). 6
jurisdiction. If, however, the agency cancelled the appellant’s removal without
returning him to status quo ante, as the appellant alleged, the appeal is not moot
because that issue remains live.
Restoration to the status quo ante generally requires that the employee be
placed back in his former position or in a position substantially equivalent in
scope and status to his former position. Harris v. Department of the Air Force ,
96 M.S.P.R. 193, ¶ 6 (2004). Specifically, return to the status quo ante requires
return, with back pay, to a position of the same grade, pay, status, and tenure as
the one occupied before the agency’s action. Id. Additionally, restoration to the
status quo ante requires that the agency remove all references to the adverse
action from the appellant’s personnel file. Id. An appellant is not, however,
entitled to be placed in a better position than he would have enjoyed had the
appealable action not occurred. Sink v. Department of Energy , 110 M.S.P.R. 153,
¶ 19 (2008).
As previously mentioned, the parties disagreed about several issues
regarding the appellant’s return to status quo ante below, and the administrative
judge did not reach any conclusions about the disagreement. Compare IAF,
Tabs 27, 30, 32 (agency’s filings regarding the relief provided), with IAF,
Tabs 29, 35 (appellant’s arguments about further relief). The appellant argued
that although the agency provided some relief, it still owed him for approximately
$65,000 for additional overtime pay, IAF, Tab 29 at 9, 11 hours of compensatory
time, id. at 1, more than 100 hours of annual leave, id. at 20, and $107
reimbursement for work boots, IAF, Tab 35 at 3.
On review, the Clerk of the Board ordered the parties to submit additional
argument and evidence regarding the appellant’s return to status quo ante. PFR
File, Tab 4. Most notably, the order explained the following: an agency is
required to provide an appellant with a full accounting of his back pay award.
De Luca v. U.S. Postal Service , 76 M.S.P.R. 487, 489 (1997). Placing an
appellant on administrative leave following the cancellation of an adverse action7
generally does not constitute a return to the status quo ante. Id. at 488. An
agency can decline to restore an employee to his prior position only if it has a
strong overriding interest requiring reassignment to another position. Shelton v.
U.S. Postal Service , 53 M.S.P.R. 483, 485 (1992). However, an agency’s
assertion that it is contemplating reinstating charges against an appellant is not
such an interest. De Luca, 76 M.S.P.R. at 488-89.
In his response, the appellant once again presents evidence and argument
regarding overtime pay, compensatory leave, annual leave, and work boots. PFR
File, Tab 5 at 4-5. He also notes that the agency never returned him to duty.
Id. at 6.
For its part, the agency presented arguments about only some of the matters
raised by the appellant, and no evidence. PFR File, Tab 8. The agency’s
response contains no mention of the overtime or leave balances the appellant has
characterized as required for his return to status quo ante. Concerning the
appellant’s allegations about reimbursement for work boots, the agency merely
describes the demand as unreasonable.4 PFR File, Tab 8 at 7 n.3. The agency
provided no further information, such as any underlying policy regarding this
alleged entitlement. Concerning the appellant’s placement on administrative
leave, rather than his return to duty, agency counsel asserts that he has been
removed a second time, which could render that specific matter moot. Id. at 6
n.1, 9-10; see Williams v. Department of the Army , 97 M.S.P.R. 246, ¶ 8 (2004)
(recognizing that an agency’s placement of an appellant on administrative leave
after cancelling its first removal action became moot when the agency removed
him a second time because the Board could not provide any relief), overruled on
other grounds by Durr v. Department of Veterans Affairs , 99 M.S.P.R. 283
(2005). But, as previously warned, agency counsel’s statements in a pleading do
4 The receipt the appellant submitted into the electronic record for his work boots is
difficult to read. PFR File, Tab 5 at 36. It appears to be dated January 2017, which is
after the September 2016 date on which the agency first removed him from duty but
before his November 2017 removal. E.g., IAF, Tab 6 at 104-07.8
not constitute evidence. Hendricks v. Department of the Navy , 69 M.S.P.R. 163,
168 (1995); PFR File, Tab 4 at 3.
Under these circumstances, we are unable to determine whether the
appellant is entitled to additional relief because the record remains insufficiently
developed, despite repeated attempts to gather relevant evidence from the agency.
IAF, Tabs 28, 31; PFR File, Tab 4. We therefore remand this appeal to the
administrative judge for further adjudication of the appellant’s return to status
quo ante. Reed v. U.S. Postal Service , 98 M.S.P.R. 585, ¶ 12 (2005) (remanding
the appeal of an action that was cancelled as the appeal was pending for further
adjudication regarding the appellant’s return to status quo ante), overruled on
other grounds by Fernandez v. Department of Justice , 105 M.S.P.R. 443, ¶ 5 n.1
(2007).
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 | Dugas_Michael_P_PH-0752-18-0104-I-1_Remand_Order.pdf | 2024-02-01 | MICHAEL P. DUGAS v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-18-0104-I-1, February 1, 2024 | PH-0752-18-0104-I-1 | NP |
2,456 | https://www.mspb.gov/decisions/nonprecedential/Robinson_Forestine_DC-0752-18-0163-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FORESTINE ROBINSON,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.DOCKET NUMBER
DC-0752-18-0163-I-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Forestine Robinson , Greenbelt, Maryland, pro se.
Dorothy Kerr , Greenbelt, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as untimely. On petition for review, the appellant discusses
the Board’s lack of quorum at the time she filed her petition, but she does not
identify any error in the initial decision. Petition for Review File, Tabs 1, 4.
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).
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 | Robinson_Forestine_DC-0752-18-0163-I-1__Final_Order.pdf | 2024-02-01 | FORESTINE ROBINSON v. NATIONAL AERONAUTICS AND SPACE ADMIN, MSPB Docket No. DC-0752-18-0163-I-1, February 1, 2024 | DC-0752-18-0163-I-1 | NP |
2,457 | https://www.mspb.gov/decisions/nonprecedential/Wiggins_Franceska_CH-315H-18-0522-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCESKA WIGGINS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-315H-18-0522-I-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M
ichael Boone , Dayton, Ohio, for the appellant.
Demetrious A. Harris , Esquire, Dayton, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant, a preference eligible, has filed a petition for review of the
initial decision in which the administrative judge found that she was not an
“employee” under 5 U.S.C. § 7511(a)(1)(B), divesting the Board of jurisdiction
over the appeal of her excepted service trial period termination. Initial Appeal
File (IAF), Tab 8, Initial Decision (ID); Petition for Review (PFR) File, Tab 1.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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).
Upon review, we discern no error in the administrative judge’s
determination to dismiss this appeal for lack of jurisdiction without holding a
hearing. An appellant bears the burden of proving Board jurisdiction by
preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). There is no statutory
requirement that the Board hold a hearing on the threshold issue of jurisdiction
when an appellant fails to raise a nonfrivolous allegation relating to jurisdiction
which cannot be resolved by the documentary record. Miller v. U.S. Postal
Service, 46 M.S.P.R. 407, 409-10 (1990), aff’d, 956 F.2d 1172 (Fed. Cir. 1992)
(Table). The Board has jurisdiction over appeals of adverse actions filed by an
“employee” as defined in 5 U.S.C. § 7511(a)(1). 5 U.S.C. §§ 7512, 7513(d); see
Anderson v. General Services Administration , 56 M.S.P.R. 316, 318, aff’d,
12 F.3d 1069 (Fed. Cir. 1993). An “employee” under 5 U.S.C. § 7511(a)(1)(B)(i)
is defined as “a preference eligible in the excepted service who has completed
1 year of current continuous service in the same or similar positions . . . in an
Executive agency . . . .” Prior Federal service can be credited towards the2
completion of a trial period in the excepted service where: (1) the prior service
was performed in the same agency; (2) it was performed in the same line of
work; and (3) it was completed with no more than one break in service of less
than 30 days. McCrary v. Department of the Army , 103 M.S.P.R. 266, ¶ 12
(2006).
In this case, the agency terminated the appellant, a preference eligible,
from her excepted service position as a Medical Support Assistant for
postappointment reasons prior to her completion of 1 year of current continuous
service in the same or similar positons. IAF, Tab 7 at 5, 24-26. The appellant’s
previous Federal service in this same position with the agency does not count
towards the completion of her trial period, as she had more than one break in
service of more than 30 days prior to her appointment to the position to which she
was terminated.2 Id. at 27, 33-43. Thus, the appellant does not meet the
definition of an “employee” under 5 U.S.C. § 7511(a)(1)(B) and is not entitled to
appeal her trial period termination to the Board. See Goodman v. U.S. Postal
Service, 36 M.S.P.R. 127, 130 (1988) (holding that because the appellant did not
show that he was an “employee” under 5 U.S.C. § 7511(a)(1)(B), the
administrative judge properly dismissed his appeal for lack of Board jurisdiction).
The undisputed record supports the conclusion drawn by the administrative judge
in the initial decision. See Hardy v. Merit Systems Protection Board , 13 F.3d
1571, 1575 (Fed. Cir. 1994) (finding that the documentary evidence was ample to
resolve the jurisdictional issue without a hearing); Clede v. Department of the
Air Force, 72 M.S.P.R. 279, 286 (1996) (stating that “[t]he uncontradicted
evidence of record simply does not furnish a nonfrivolous showing of jurisdiction
2 The record shows that the appellant previously occupied a Medical Support Assistant
position with the agency from 2007 to 2008, and held other Federal positions, without a
break in service, until 2010. IAF, Tab 7 at 27, 29-33. The appellant then had an over
4-year break in service until she was appointed to another Federal position in 2014. Id.
at 27, 34-36. The appellant held that position for less than a year and then had a break
in service of approximately 20 months before receiving a Federal appointment for less
than 1 week. Id. at 27, 34-41. The appellant was then appointed to the position at issue
in this appeal 3 months later. Id. at 5, 27. 3
entitling the appellant to a hearing”), aff'd, 113 F.3d 1257 (Fed. Cir. 1997)
(Table).
In her petition for review, the appellant argues that the administrative judge
erred by not holding a telephonic status conference. PFR File, Tab 1 at 3. We
see no indication that it was improper for the administrative judge to dismiss this
appeal prior to convening a telephonic status conference.3 See Miller v.
Department of Defense , 85 M.S.P.R. 310, ¶ 8 (2000) (outlining that an
administrative judge has wide discretion to control the proceedings). The
appellant also contests the agency’s reasoning for her termination and alleges that
the agency committed harmful errors in the termination process. PFR File, Tab 1
at 3-4. Due to the Board’s lack of jurisdiction over the appellant’s appeal, we are
without the authority to address the merits of her termination and any harmful
procedural error affirmative defense. See Penna v. U.S. Postal Service ,
118 M.S.P.R. 355, ¶ 13 (2012) (holding that the Board lacks jurisdiction over a
claim of harmful procedural error absent an appealable underlying action).
On review, the appellant argues that the administrative judge erred by not
providing her with the opportunity to respond to the agency’s filing on
jurisdiction. PFR File, Tab 1 at 3. An appellant must receive specific
information on what is necessary to establish an appealable jurisdictional issue.
Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir.
1985). Any shortcoming in providing this notice and an opportunity to submit
argument and evidence on the matter can be cured if the initial decision puts the
appellant on notice of her burden to demonstrate jurisdiction, thus giving her a
chance to meet it on review. Easterling v. U.S. Postal Service , 110 M.S.P.R. 41,
¶ 11 (2008).
In the jurisdictional notice sent to the parties in this instant case, the
administrative judge referred to the appellant as holding a position in the
3 There is no indication that the appellant contacted the administrative judge to request
a status conference. 4
competitive service at the time of her termination and provided her the standard
for establishing jurisdiction applicable to individuals in the competitive service.4
IAF, Tab 3. However, the appellant, a preference eligible, occupied a position in
the excepted service when terminated. IAF, Tab 7 at 5, 24. The definition of an
“employee” with Board appeal rights differs between an individual in the
competitive service and a preference eligible in the excepted service. 5 U.S.C.
§ 7511(a)(1). Notwithstanding, the initial decision contained the correct
standard, and the administrative judge assessed whether the appellant was an
“employee” with Board appeal rights accordingly. ID at 2-4. Therefore, the
appellant received notice through the initial decision of what she had to prove to
meet her jurisdictional burden, and she then set forth her argument and evidence
on review. PFR File, Tab 1. As outlined herein, the appellant failed to meet this
standard on review.
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.
4 The appellant did not respond to the jurisdictional notice issued by the administrative
judge prior to the initial decision. ID at 3.
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
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 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.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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
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FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Wiggins_Franceska_CH-315H-18-0522-I-1_Final_Order.pdf | 2024-02-01 | FRANCESKA WIGGINS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-315H-18-0522-I-1, February 1, 2024 | CH-315H-18-0522-I-1 | NP |
2,458 | https://www.mspb.gov/decisions/nonprecedential/Smith_Lawrence_DA-0752-16-0383-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE SMITH,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-0752-16-0383-I-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer D. Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Susan E. Gibson , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Effective May 13, 2016, the agency removed the appellant from his
position as a Deputy U.S. Marshal. Initial Appeal File (IAF), Tab 4 at 10-11, 15.
According to the following undisputed facts, his removal stemmed from a
February 11, 2015 incident, in which he entered the Whole Foods Market (WFM)
in Austin, Texas, ordered two tacos valued at $6.00 at a computer kiosk, picked
up his order at an adjacent counter, and left the store without paying for them.
IAF, Tab 26, Initial Decision (ID) at 2. A store loss prevention officer (LPO)
confronted the appellant and escorted him inside to pay for the tacos. ID at 2-3.
At the cash register, the appellant took out his Marshal’s credential case, which
he was using as a wallet, the LPO detained the appellant, directed him to the loss
prevention security office (security office), and notified the Austin Police
Department (APD) of the incident. ID at 2-3; IAF, Tab 4 at 108. The LPO was
joined by other security personnel, and one stood guard over the appellant during
the following hour while he was detained. ID at 3; IAF, Tab 4 at 204-06, 209-10,
238-39. When the APD failed to respond after an hour, the appellant signed a
statement admitting to wrongfully depriving WFM of its property, and he was
released. ID at 3. WFM declined to prosecute. Id. The APD reported the
incident as “Theft by Shoplifting” and referred the matter to the agency’s U.S.2
Marshals Service Office of Professional Responsibility-Internal Affairs
(OPR-IA). Id. Much of the appellant’s behavior at WFM, as well as his
detention in the loss prevention office, is captured on store security video. ID
at 5-6, 16.
OPR-IA conducted an investigation, during which the appellant and the
WFM LPO were interviewed under oath. IAF, Tab 4 at 123-24, 200, 219. During
his June 30, 2015 OPR-IA interview, the appellant claimed that he took the tacos
without paying for them because they were complementary (“comped”), that he
signed the February 11, 2015 statement admitting to the dishonest conduct under
duress, and that the security personnel’s aggressive treatment of him prevented
him from explaining that the tacos were comped. Id. at 225-27, 234-37, 256,
272-73. The LPO described the appellant’s conduct throughout the incident,
stated that the appellant did not explain his actions, and asserted that he acted and
treated the appellant professionally during his detainment. Id. at 211-15, 313-14,
Tab 18 at 39-40.
After OPR-IA’s investigation, the agency proposed the appellant’s removal
based on four charges: (1) dishonest conduct for taking the tacos without paying
for them; (2) failure to report that he was detained and accused of criminal
conduct while on official duty as required by agency policy; (3) failure to follow
an agency directive that prohibited the use of his credential case to store personal
items, including his cash and driver’s license; and (4) lack of candor during a
June 30, 2015 OPR-IA investigative interview into his alleged misconduct.2 IAF,
Tab 4 at 107-19. Upon finding that the appellant admitted to charges 2 and 3 and
2 Although the proposed removal referred to the OPR -IA interview as taking place on
June 23, 2015, the interview in fact took place on June 30, 2015. IAF, Tab 4 at 62-64,
112, 219. The parties have not alleged that this error was harmful to the appellant and
we find that it was not. See Viana v. Department of the Treasury , 114 M.S.P.R. 659,
¶ 5 (2010) (finding that an agency’s error in its proposal notice as to the date of the
alleged misconduct was not harmful because the appellant was on notice of the correct
date and had the opportunity to make an informed reply).3
that the record supported the remaining two charges and specifications, the
deciding official removed the appellant. Id. at 11-16.
The appellant filed the instant Board appeal, challenging the merits of his
removal and raising an affirmative defense of harmful error. IAF, Tab 1 at 7, 15.
He withdrew his request for a hearing. IAF, Tab 15 at 4-6. After the close of the
record, the administrative judge issued an initial decision on the parties’
submissions, sustaining the removal action. ID at 1-2. She found that the agency
proved all of the charges and the underlying specifications; that the appellant
failed to prove that the agency committed harmful error in reaching its removal
decision; and that the penalty of removal was reasonable and promoted the
efficiency of the service. ID at 9-11, 14-16, 19-20, 23-24.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition for review, to which
the appellant has replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
On petition for review, the appellant argues that the administrative judge
erred in finding that the agency proved the dishonest conduct and lack of candor
charges and that the penalty of removal was reasonable. PFR File, Tab 1 at 8-12,
14, Tab 4 at 4, 13-15. Specifically, he reasserts that the tacos were comped; that
his February 11, 2015 written statement admitting to the dishonest conduct should
not be considered because it was signed under duress; that the statements of the
LPO should not be credited over his own; and that the de minimis value of the
items taken and the other identified mitigating factors should outweigh the fact
that he was a law enforcement officer (LEO). PFR File, Tab 1 at 8-14, Tab 4
at 4-15. For the reasons below, we find that the appellant’s contentions do not
provide a basis for review.
Because the administrative judge’s findings are based on the written record,
the Board is free to reweigh the evidence and make its own findings without4
deferring to her credibility findings. See Haebe v. Department of Justice ,
288 F.3d 1288, 1302 (Fed. Cir. 2002) (finding that when an administrative
judge’s findings are not based on observing witnesses’ demeanor, the Board is
free to re-weigh the evidence and substitute its own judgment on credibility
issues). We have reviewed the record evidence, but nonetheless find that the
administrative judge properly weighed the evidence, considering such factors as
the inconsistency of the appellant’s statements, the inherent improbability of his
claims, the LPO’s opportunity and capacity to observe the incident, and the
consistency of the LPO’s statements with the other evidence in the record. ID
at 7-9, 13-15; see Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987)
(finding a number of factors relevant to credibility determinations, including a
witness’s opportunity and capacity to observe the event in question, any prior
inconsistent statements by a witness, evidence which contradicts or is consistent
with a witness’s version, and the inherent improbability of a witness’s version).
The administrative judge correctly sustained the charge of dishonest conduct.
As stated by the administrative judge, to sustain a charge of dishonest
conduct, the agency must prove intent to deceive. Vilt v. U.S. Marshals Service ,
Department of Justice , 16 M.S.P.R. 192, 199 (1983). Intent to deceive or mislead
may be established by circumstantial evidence or inferred. Id.; see Boo v.
Department of Homeland Security , 122 M.S.P.R. 100, ¶ 10 (2014) (discussing
intent in the context of a charge of misrepresentation). In determining whether
the requisite intent exists, the totality of the circumstances must be considered,
including the appellant’s plausible explanations. Boo, 122 M.S.P.R. 100, ¶ 10.
In finding that the appellant intended to take the tacos without paying for
them, the administrative judge relied on the appellant’s written statement from
February 11, 2015, in which he “voluntarily state[d] and admit[ted], without force
or threats of any kind,” to taking the tacos “without making payment or having
the owner’s consent.” ID at 6; IAF, Tab 4 at 147. On review, the appellant
argues, as below, that the statement should not be considered because he signed it5
under duress. PFR File, Tab 1 at 13; IAF, Tab 19 at 28-29. He claims that the
LPO treated him aggressively by pushing him in the back and “snatching” his
credentials from his hands, and that the LPOs detained him “against his will.”
PFR File, Tab 1 at 4, 13; IAF, Tab 4 at 233, 256, Tab 19 at 28-29.
The administrative judge determined that the security personnel were not
aggressive with the appellant, and we agree with this finding. ID at 15-16. Like
the administrative judge, we credit the LPO’s assertion that he acted
professionally over the appellant’s claims of mistreatment.3 Id.; IAF, Tab 18
at 39. The LPO consistently described his encounter with the appellant over the
course of two OPR -IA interviews and in a written statement he provided to the
agency. IAF, Tab 4 at 208-14, 309, 313-15, 321-22, Tab 18 at 39. The appellant,
on the other hand, made a number of statements that were inconsistent with each
other and the video evidence, as discussed further below in connection with the
lack of candor charge. Moreover, it is unlikely that the appellant would not
understand the impact of the statement, given his LEO experience. See Cooper v.
U.S. Postal Service , 42 M.S.P.R. 174, 179 n.2 (1989) (finding that the appellant
was not likely susceptible to being tricked into an admission, given his 15 years
of experience in law enforcement), aff’d per curiam , 904 F.2d 46 (Fed. Cir. 1990)
(Table).
In finding that WFM did not comp the appellant’s tacos, as he claimed, the
administrative judge considered the security video from WFM and the LPO’s
statements. ID at 5-9. She relied on the LPO’s statement to OPR -IA that he
observed the entirety of the appellant’s transaction at the taco bar and that there
was no verbal interaction between the appellant and the WFM employee who
prepared the tacos. ID at 8; IAF, Tab 4 at 307-08, 310-11. She credited the
LPO’s assertion that the appellant waited no more than 5 minutes for his food to
be prepared, which was confirmed by the time stamp on the receipt and the
3 The LPO confirmed that the appellant was not free to leave because the security team
had called and was waiting for the APD. IAF, Tab 4 at 322. We decline to find that the
appellant’s detention coerced him into falsely admitting that he took the tacos.6
surveillance video. ID at 7; IAF, Tab 4 at 146, Tab 9, Surveillance Camera
Recording (150211 Suspect going towards middle aisle.avi) at 00:25. Moreover,
according to the LPO, the appellant acted suspiciously after retrieving the tacos.
IAF, Tab 4 at 307-08. The LPO also observed that the appellant’s receipt was
marked unpaid and did not contain the notation normally included on the receipt
of an item provided free of charge. ID at 7-8; IAF, Tab 4 at 146, 311-12.
The appellant has shown no error in the administrative judge’s decision not
to credit his later statements that the tacos were comped because the statements
were inconsistent with each other. ID at 6-7, 9; PFR File, Tab 1 at 2-4, 6, 9. In
his OPR-IA interview, the appellant asserted that he told the security personnel at
the time that the tacos were comped. IAF, Tab 4 at 263-64. However, in his
March 22, 2016 declaration responding to his proposed removal, he stated that he
“did not believe the value of the tacos was worth the trouble or hassle of trying to
explain” that they were comped. Id. at 94. Those statements are also
contradicted by the appellant’s verbal concession to the security personnel while
in the security office at WFM that “there [] [was] no excuse” for his actions, as
well as his February 11, 2015 written statement that he took the tacos without
WFM’s consent and without paying for them. IAF, Tab 4 at 147, 168. The
administrative judge therefore found that the appellant did not explain his having
comped merchandise until his OPR -IA interview and that it was inherently
improbable he would delay making such a claim if it were true. ID at 8-9.
We find that the administrative judge correctly found that the appellant’s
proffered reason for taking the tacos was not credible and that he intended to take
them without paying for them. See Hanker v. Department of the Treasury ,
73 M.S.P.R. 159, 164 (1997) (finding that a failure to disclose information in
response to a question on a Standard Form 86, coupled with a lack of plausible
explanation for that failure, warranted an inference of an intent to deceive). The
appellant’s arguments otherwise constitute mere disagreement with the
administrative judge’s findings. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98,7
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). Accordingly,
we agree with the administrative judge that the agency proved the appellant took
the tacos from WFM with the intent to deceive.
The administrative judge correctly sustained the lack of candor charge.
A lack of candor charge requires proof of the following elements: (1) that
the employee gave incorrect or incomplete information; and (2) that he did so
knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330, ¶ 17
(2016). The administrative judge found that the agency proved that the appellant
made two incorrect statements in his sworn OPR-IA interview. ID at 11-16.
Those statements were that the security personnel prevented the appellant from
explaining that his tacos were comped and that they were “yelling and throwing
paper and pens at [him].” IAF, Tab 4 at 13-14, 77-79. The administrative judge
further determined that the appellant knew that the first statement was incorrect,
but made no similar finding regarding the second statement. ID at 14-16. She
nonetheless sustained both specifications of the agency’s lack of candor charge.
Id.
Regarding the first specification, the administrative judge found that the
appellant had ample opportunity to fully explain his actions when he was
confronted by the LPO in the parking garage and at the register. ID at 12. She
further found that the video evidence revealed that the appellant had the
opportunity to explain his actions while in the security office, but failed to do so.
ID at 13. While the appellant was in the office, he discussed the APD’s
involvement, his need to make a phone call, and he asked for water. IAF, Tab 4
at 239, 248, 261-63. Also, rather than remain “silen[t] at the back end of the
interview,” as he claims on review, PFR File, Tab 5 at 14, the appellant asserted,
without any prompting from the security personnel present, “I ain’t trying to8
steal,” IAF, Tab 4 at 162; but, he again failed to further explain his conduct, even
after being asked directly why he did not pay for the tacos, id., at 168. To the
extent the security office video did not capture the entirety of the incident, as the
appellant alleges, PFR File, Tab 1 at 13, Tab 4 at 14, the LPO’s statements to the
OPR-IA confirm that the appellant did not “offer any excuses” for taking the
tacos without paying for them or otherwise state that they were comped. IAF,
Tab 4 at 208-09, 211, 313-14, 321-22.
As for the second specification, the administrative judge found that the
evidence refuted the appellant’s claims that the security personnel yelled and
threw paper and a pen at him. ID at 15-16. In making this finding, she relied on
the video of the appellant in the security office and the LPO’s statements. ID
at 16. The LPO denied pushing, using any inappropriate language toward, or
throwing a pen and paper at the appellant. IAF, Tab 4 at 313-14, Tab 18 at 39-40.
The video evidence generally supports the LPO’s statements, even if it did not
capture every aspect of the encounter. We discern no error in this finding. See
Hillen, 35 M.S.P.R. at 458. Moreover, we find that the appellant’s description of
the encounter shifted over time, from stating in his OPR -IA interview that the
security personnel were not physically aggressive, to claiming in the same
interview that they threw a pen at him, to asserting in his March 22, 2015
declaration that one of them “tossed a pen and paper” at him. IAF, Tab 4 at 94,
239, 272, 288-89.
As explained above and highlighted by the administrative judge, the
appellant’s shifting explanations during his OPR -IA interview and across his
subsequent statements are sufficiently distinct to allow for an inference that the
appellant knowingly mischaracterized the incident, as charged in specifications 1
and 2. ID at 12-16; see Boo, 122 M.S.P.R. 100, ¶ 10 (explaining that intent to
mislead may be inferred when the misrepresentation is made with a reckless
disregard for the truth or with conscious purpose to avoid learning the truth) .
Thus, the administrative judge’s failure to explicitly find the appellant knowingly9
gave incorrect or incomplete information as charged in specification 2 did not
affect the appellant’s substantive rights. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (finding that adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision). Additionally, because the agency proved that the appellant took
the tacos with the intent to deceive, it follows that his attempts to deny doing so
lacked candor. Ludlum v. Department of Justice , 278 F.3d 1280, 1283-85 (Fed.
Cir. 2002) (approving of the Board’s finding that when an underlying misconduct
charge has been proven, a lack of candor charge based on an appellant’s failure to
respond truthfully or completely when questioned about matters relating to the
proven misconduct also must be sustained). Thus, we agree with the
administrative judge that the appellant’s statements to repudiate his prior
admissions, made during the OPR -IA investigation, also lacked candor. We
therefore find that the administrative judge correctly sustained the lack of candor
charge and the supporting specifications.
The administrative judge properly deferred to the agency’s chosen penalty.
When all of the agency’s charges are sustained, the Board will modify or
mitigate an agency -imposed penalty only if it finds the agency failed to weigh the
relevant factors or the penalty clearly exceeds the bounds of reasonableness. See
Ellis v. Department of Defense , 114 M.S.P.R. 407, ¶ 11 (2010). The
administrative judge found that the deciding official considered the relevant
mitigating factors and deferred to her selection of removal as a reasonable
penalty. ID at 23. We agree.
On review, the appellant claims that the administrative judge ignored or
gave insufficient weight to the mitigating factors of his lack of prior discipline,
length of Federal civilian service, positive work history, multiple character
letters, decorated military history, and the $6.00 value of the tacos. PFR File,
Tab 1 at 9, Tab 4 at 9. As for his rehabilitation potential, the appellant argues
that he was experiencing transient stress due to a divorce. PFR File, Tab 4 at 9.10
He also appears to assert that the nature and seriousness of his conduct did not
warrant removal, given that “he did not gain control over the tacos as a direct
result of his job responsibilities,” WFM did not file criminal charges against him,
APD declined to report to the scene, and he voluntarily returned to the store to
pay for the items. Id. He further claims that the table of penalties for dishonest
conduct “provides a lesser penalty than removal on the first offense.” Id. The
administrative judge addressed these claims. ID at 21-23. We agree with her
finding that the deciding official appropriately considered these factors. ID
at 21-23; compare PFR File, Tab 4 at 9, with IAF, Tab 4 at 14-15, 80-83, Tab 18
at 53-59. The appellant’s disagreement with the weight the deciding official gave
to particular factors does not provide a basis for reversing the initial decision.
Ellis, 114 M.S.P.R. 407, ¶ 11.
The appellant argues for the first time on review that the penalty of
removal should be mitigated because the agency permitted him to continue
working for 3 months after proposing his removal. IAF, Tab 4 at 68, 129; PFR
File, Tab 1 at 9. Because he did not raise this argument below, we decline to
consider it on review. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980) (explaining that the Board will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence).
The appellant argues that the de minimis value of the goods involved is an
appropriate factor for the Board to consider in its penalty review. PFR File,
Tab 1 at 8-14, Tab 4 at 4-13. We agree. See, e.g., Miguel v. Department of the
Army, 727 F.2d 1081, 1084 (Fed. Cir. 1984); McGowan v. Department of the Air
Force, 28 M.S.P.R. 314, 318 (1985). Nevertheless, even in cases in which the
value of stolen goods was minimal, the Board’s penalty analysis must account for
all of the relevant factors. Mallery v. U.S. Postal Service , 41 M.S.P.R. 288, 292
(1989). In this regard, we observe that the Board recently mitigated the removal
of an employee who stole food from an agency cafeteria, and it considered the de11
minimis nature of the theft in its penalty analysis. Chin v. Department of
Defense, 2022 MSPB 34, ¶¶ 25, 27.
However, notwithstanding the similarities between these two acts of theft,
there are aggravating factors present in the instant appeal that were not present in
Chin, and we find that the de minimis nature of the theft does not outweigh those
factors. Unlike the appellant in Chin, the appellant in the instant appeal was an
LEO, and it is well established that LEOs are held to a higher standard of honesty
and integrity. Prather v. Department of Justice , 117 M.S.P.R. 137, ¶ 36 (2011);
see also O’Lague v. Department of Veterans Affairs , 123 M.S.P.R. 340, ¶ 20
(2016) (sustaining the penalty of removal for a police officer for sleeping on duty
and falsification, observing that the Board has frequently upheld the removal
penalty for falsification and that LEOs may be held to a higher standard of
conduct than other Federal employees), aff’d per curiam , 698 F. App’x 1034
(Fed. Cir. 2017); Wayne v. Department of the Navy , 55 M.S.P.R. 322, 330 (1992)
(finding that removal was appropriate for falsification, particularly in light of the
appellant’s position as a security guard). We agree with the administrative judge
that this appeal is similar to Cooper, 42 M.S.P.R. at 180-81, in which the Board
declined to mitigate an LEO’s removal for shoplifting despite his 35 years of
Federal service, lack of prior discipline, and the relatively minimal value of the
items stolen. ID at 23.
Moreover, unlike the appellant in Chin, the appellant in this case was not
removed for the act of theft alone but also for other misconduct surrounding this
same event, including failure to report the matter to the agency, storing his
driver’s license in his credential case,4 and lack of candor in the ensuing
investigation. IAF, Tab 4 at 107-19. These additional sustained charges are
arguably more serious than the dishonest conduct charge itself. For example,
under the agency’s table of penalties, the lack of candor charge carries a
4 Even if the appellant did not intend to misuse his position by showing his badge to the
WFM employees, his actions, at a minimum, created an appearance that he was
attempting to do so.12
maximum penalty of removal for a first offense. IAF, Tab 4 at 332. For these
reasons, we agree with the administrative judge that the agency’s penalty decision
was reasonable and entitled to deference.
Accordingly, we affirm the initial decision, which sustained the appellant’s
removal.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on14
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or15
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Smith_Lawrence_DA-0752-16-0383-I-1_Final_Order.pdf | 2024-02-01 | LAWRENCE SMITH v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-0752-16-0383-I-1, February 1, 2024 | DA-0752-16-0383-I-1 | NP |
2,459 | https://www.mspb.gov/decisions/nonprecedential/Ramirez_Juan_L_NY-0752-19-0065-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUAN L. RAMIREZ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0752-19-0065-I-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
J
uan L. Ramirez , Paterson, New Jersey, pro se.
Ingrid Merritt , Windsor, Connecticut, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of a reassignment to a lower-graded
position following the elimination of his prior position.2 On petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 In April 2019, the appellant moved to suspend the processing of his petition for review
because he would be out of the country between May 1 and 23, 2019. Petition for
Review File, Tab 3. These dates have since passed, and we deny his motion as moot.
the appellant challenges the merits of his reassignment and argues that the agency
committed procedural errors and a prohibited personnel practice. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 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.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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Ramirez_Juan_L_NY-0752-19-0065-I-1_Final_Order.pdf | 2024-02-01 | JUAN L. RAMIREZ v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-19-0065-I-1, February 1, 2024 | NY-0752-19-0065-I-1 | NP |
2,460 | https://www.mspb.gov/decisions/nonprecedential/Roberson_Yolanda_L_AT-3443-18-0204-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YOLANDA LANNETTE ROBERSON,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
AT-3443-18-0204-I-1
DATE: February 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Yolanda Lannette Roberson , Atlanta, Georgia, pro se.
Rachel Trafican , Washington, D.C., for the agency.
Marcus Mitchell , Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. On petition for review, the
appellant asserts that she was unable to respond to the administrative judge’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).
jurisdictional order because of the Federal Government shutdown2 and problems
accessing the Board’s e-Appeal Online system. Petition for Review (PFR) File,
Tab 1. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
For the reasons described in the initial decision, we agree with the
administrative judge’s finding that the appellant has failed to meet her
jurisdictional burden. Initial Appeal File, Tab 5, Initial Decision at 1-2; see Levy
v. Department of Labor , 118 M.S.P.R. 619, ¶ 5 (2012) (observing that an
appellant generally is entitled to a jurisdictional hearing if she raises a
nonfrivolous allegation of Board jurisdiction over the appeal); see also Wren v.
Department of the Army , 2 M.S.P.R. 1, 2 (1980) (finding that prohibited
personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Although the
appellant claims on review that she was unable to respond on the jurisdictional
issue, she has not explained what additional argument or evidence she would have
2 The Federal Government shutdown was for 3 days from January 20 through 22, 2018.
See 5 C.F.R. § 1201.64 (providing that the Board may take official notice of matters
that can be verified).2
provided. PFR File, Tab 1. Thus, we discern no basis to disturb the initial
decision.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Roberson_Yolanda_L_AT-3443-18-0204-I-1_Final_Order.pdf | 2024-02-01 | YOLANDA LANNETTE ROBERSON v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. AT-3443-18-0204-I-1, February 1, 2024 | AT-3443-18-0204-I-1 | NP |
2,461 | https://www.mspb.gov/decisions/nonprecedential/Reid_Qiana_PH-0752-16-0340-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
QIANA REID,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
PH-0752-16-0340-I-1
DATE: February 1, 2024
THIS ORDER IS NONPRECEDENTIAL1
Stephanie E. Hosea , Esquire, Washington, D.C., for the appellant.
David E. Mapp , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as moot after the agency rescinded the underlying removal
action. 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 administrative judge dismissed this appeal as moot after the agency
rescinded the underlying removal action. Initial Appeal File (IAF), Tab 21,
Initial Decision (ID). As the hearing ended, the administrative judge told the
parties that he was inclined to reverse the appellant’s removal on grounds that the
agency denied the appellant her right to due process but that the parties could
settle the appeal or the agency could rescind the action before he issued the initial
decision. Hearing Compact Disc (comments of the administrative judge). Shortly
thereafter, the agency moved for dismissal of the appeal on the ground that it had
rescinded the removal action, asserting that it had restored the appellant to the
status quo ante and had initiated processing her back pay. IAF, Tab 19 at 5-6.
After agency counsel confirmed that it had restored the appellant to her former
position and that the agency was processing the appellant’s back pay request, the
administrative judge dismissed the appeal. ID at 2.
The appellant has filed a petition for review in which she contends, among
other things, that the agency had not fully restored her to the status quo ante when
the initial decision was issued or by the time she filed her petition for review.
Petition for Review (PFR) File, Tab 1 at 9-10. In particular, the appellant asserts
that, at the time she filed her petition for review, the agency had not paid her any
back pay, provided retroactive benefits, or shown that it had removed all
references to the removal action from her personnel file. Id. at 9-10, 12. She also
asserts that the agency did not allow her to return to duty on the date it alleged by
agency counsel. Id. at 9, 12. The agency opposed the petition for review and
asked for permission to file supplemental information “at such time as back pay is
processed.” PFR File, Tab 3 at 6. In reply, the appellant asserted, among other
things, that the agency still had not issued a new Postal Service Form 50 (PS-50),
expunged the removal documents from her personnel file, restored her benefits, or
paid her back pay. PFR File, Tab 4 at 5. 2
The Clerk of the Board subsequently ordered both parties to provide further
evidence and argument addressing whether, while the petition for review was
pending, the agency had afforded the appellant all of the relief that she might
have obtained if she had prevailed before the Board. PFR File, Tab 5 at 2. The
agency responded with a declaration from agency counsel and other
documentation concerning the agency’s efforts to return the appellant to the status
quo ante. PFR File, Tab 6. The appellant did not respond.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is determined by the nature of the agency’s action
at the time an appeal is filed with the Board. See Gillespie v. Department of
Defense, 90 M.S.P.R. 327, ¶ 7 (2001). An agency’s unilateral modification of its
adverse action after an appeal has been filed cannot divest the Board of
jurisdiction unless the appellant consents to such divestiture or the agency
completely rescinds the action being appealed. Id. Thus, the Board may dismiss
an appeal as moot if the appealable action is canceled or rescinded by the agency.
Id. For the appeal to be deemed moot, however, the agency’s rescission of the
appealed action must be complete. Id. That is, the employee must be returned to
the status quo ante and not left in a worse position because of the cancellation
than she would have been in if the matter had been adjudicated. Id. If an appeal
is not truly moot despite cancellation of the action under appeal, the proper
remedy is for the Board to retain jurisdiction and to adjudicate the appeal on the
merits. Fernandez v. Department of Justice , 105 M.S.P.R. 443, ¶ 5 (2007). The
agency has the burden of proving mootness. See Friends of the Earth,
Incorporated v. Laidlaw Environmental Services (TOC), Incorporated , 528 U.S.
167, 189 (2000) (reflecting that the burden of proving mootness is on the moving
party); Price v. U.S. Postal Service , 118 M.S.P.R. 222, ¶ 10 (2012) (finding that
an administrative judge did not, as an appellant claimed, allow an agency to avoid
its burden of proving mootness).3
The administrative judge erred when he dismissed the appeal as moot because the
agency’s rescission of the removal was not complete.
The administrative judge stated in his October 3, 2016 initial decision that
the agency “has granted the appellant’s request by rescinding the removal action
and processing the appellant’s back pay request.” ID at 2. He explained that the
appellant would be reinstated on the day that the initial decision was issued. Id.
In response to the appellant’s petition for review, the agency explained that the
appellant returned to her former position effective October 1, 2016. PFR File,
Tab 3 at 4-5, 8, 12, 19-22. The appellant’s pay resumed during the pay period
ending October 7, 2016, and on September 29, 2016, the agency initiated action
for her to recover back pay. Id. at 8, 12, 14-17. In her reply to the agency’s
response, the appellant offered a declaration stating that, as of November 4, 2016,
she had not yet received any back pay, nor had the agency given her a PS -50
documenting her reinstatement, expunged the documents related to her removal
from her official personnel folder, or informed her that her benefits had been
restored. PFR File, Tab 4 at 7. Based on these facts, we find that the appeal was
not moot when the initial decision was issued. Therefore, we vacate the initial
decision.
The appeal must be remanded for adjudication of the merits.
While the appellant’s petition for review was pending, the Clerk of the
Board ordered the parties to provide evidence, preferably in the form of sworn
statements with supporting exhibits, and arguments addressing whether the
appellant had obtained all of the relief that she might have obtained if she had
prevailed before the Board. PFR File, Tab 5 at 2. The agency submitted a
declaration with exhibits, documenting that the appellant had been issued back
pay on February 16, 2017. PFR File, Tab 6 at 5-6, 20-24. The back pay
documentation includes data on the agency’s withholding for her retirement
benefits and the record indicates that the agency would have addressed any other
matters related to benefits when it processed her back pay. Id. at 12, 20-24. The4
agency also submitted the appellant’s most recent PS-50, dated January 7, 2017.
Id. at 5, 15.
Restoration to the status quo ante requires, among other things, that the
agency remove all references to the adverse action from the appellant’s personnel
file. See Price, 118 M.S.P.R. 222, ¶ 13. The agency has not alleged, nor offered
evidence to demonstrate, that it purged the proposal to remove or the removal
decision from the appellant’s record. PFR File, Tabs 3, 6. On remand, the
administrative judge should resolve whether the agency can meet its burden of
proving that it did so. In supporting its assertions, the agency should be mindful
that the statements of a party’s representative in a pleading do not constitute
evidence. Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995).
Should the administrative judge find that the agency has failed to return the
appellant to the status quo ante, he shall adjudicate the appeal on the merits.
The administrative judge did not abuse his discretion when he declined to issue a
bench ruling reversing the removal action.
The appellant asserts that the administrative judge abused his discretion
when he informed the parties from the bench that the agency could rescind the
removal before the initial decision was issued, rather than issue an immediate
ruling reversing the removal on grounds that the agency had violated her right to
due process. PFR File, Tab 1 at 10. The Board’s regulations give its
administrative judges broad discretion to regulate the course of hearings and to
issue initial decisions. 5 C.F.R. § 1201.41(b)(6), (15). We have reviewed the
administrative judge’s comments relevant to this matter and find no abuse of
discretion.
The administrative judge’s actions do not indicate he was biased in the agency’s
favor.
Finally, the appellant argues that the administrative judge’s ruling is
indicative of partiality and thus warrants a new adjudication before a different
administrative judge. PFR File, Tab 1 at 11-13. She contends that his comments5
at the hearing advising the parties that the agency could rescind the removal
action were in the nature of legal advice given to benefit the agency. Id. at 11.
She further contends that the administrative judge made improper ex parte contact
with the agency when he verified that she had been returned to the position from
which she was removed. Id. at 12; ID at 2.
In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540,
555 (1994)).
We find that the administrative judge’s comments here do not evidence
bias. He was simply informing the parties of their options under Board law and
acting within his authority to do so. See, e.g., Barnes v. U.S. Postal Service ,
49 M.S.P.R. 21, 24-25 (1991). The appellant’s allegations of ex parte contact,
however, are troubling. Board regulations generally prohibit oral or written
communications between an administrative judge and an interested party to a case
before him when those communications concern the merits of a matter before the
Board for adjudication and when they are made without providing the other party
to the appeal with an opportunity to participate. Martinez v. U.S. Postal Service ,
89 M.S.P.R. 152, ¶ 24 (2001); 5 C.F.R. §§ 1201.101, 1201.102. Nevertheless,
even if the administrative judge’s action was inappropriate, the appellant has not
shown that she was harmed. See, e.g., Martinez, 89 M.S.P.R. 152, ¶ 24; Reape v.
Department of Health and Human Services , 41 M.S.P.R. 406, 409 (1989), aff’d,
897 F.2d 538 (Fed. Cir. 1990) (Table). The administrative judge explained in the
initial decision that the agency’s motion to dismiss the appeal had been filed6
before the effective date of her reinstatement, and his contact with the agency
representative appears to have been intended to verify that the agency had carried
out its intention. ID at 2. Moreover, the appellant already had received an
opportunity to respond to the agency’s motion to dismiss and to explain why she
believed the appeal was not yet moot. IAF, Tab 20. The initial decision informed
the appellant of the ex parte communication, and she has been afforded the
opportunity to contest the sufficiency of the agency’s evidence of having
completely rescinded the removal action on review to the Board. She also has not
shown that the administrative judge’s actions evidence a deep-seated favoritism
or antagonism that would make fair judgment impossible. Accordingly, we find
her allegations of bias to be unavailing.
ORDER
Based on the foregoing, we remand this appeal to the regional office for a
determination as to whether, after the parties have had an opportunity to respond,
the agency has returned the appellant to the status quo ante. This includes
purging of both the proposed removal and the removal decision from the
appellant’s personnel file. If the agency has done so, the administrative judge
shall dismiss the appeal as moot. If the agency has not done so, the
administrative judge shall adjudicate the removal appeal on the merits.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Reid_Qiana_PH-0752-16-0340-I-1__Remand_Order.pdf | 2024-02-01 | QIANA REID v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-16-0340-I-1, February 1, 2024 | PH-0752-16-0340-I-1 | NP |
2,462 | https://www.mspb.gov/decisions/nonprecedential/DeLong_Lucille_D_AT-0831-14-0710-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUCILLE D. DELONG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-14-0710-I-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lucille D. DeLong , Deland, Florida, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the reconsideration decision of the
Office of Personnel Management (OPM) regarding a possible overpayment of her
deferred retirement annuity under the Civil Service Retirement System.
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).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
In her appeal filed in May 2014, the appellant appeared to challenge the
amount of her annuity. Initial Appeal File (IAF), Tab 1 at 4. However, OPM’s
response indicated that it had rescinded its April 28, 2014 final decision due to
administrative error,2 and it moved that the appeal be dismissed for lack of
jurisdiction. IAF, Tab 5. In a July 10, 2014 initial decision, the administrative
judge found that, because OPM completely rescinded the reconsideration
decision, the Board no longer retains jurisdiction over the appeal stemming from
that reconsideration decision, and he dismissed the appeal. IAF, Tab 6, Initial
Decision (ID) at 2.
More than 4 years later, on July 10, 2018, the appellant submitted an appeal
form to the Board’s Atlanta Regional Office in which she again challenged the
computation of her annuity. The submission was forwarded to the Office of the
Clerk of the Board for consideration as a petition for review. Petition for Review
2 Neither the reconsideration decision, nor OPM’s rescission of it, appears in the record.
3
(PFR) File, Tab 1 at 1, 5. The Office of the Clerk of the Board afforded the
appellant the opportunity to address the untimeliness of her petition, PFR File,
Tab 2, and she did so, PFR File, Tabs 4-5. The agency argued that the appellant
failed to establish that her petition for review was timely filed or that good cause
existed for its untimeliness. PFR File, Tab 6 at 4. Notwithstanding, OPM argued
that, on review of the appellant’s records, it determined that it erroneously
informed her in its August 12, 2014 final decision that her request for
reconsideration of her overpayment was “moot” because OPM had already
collected the disputed debt.3 Id. OPM requested that the Board vacate the initial
decision and remand the case to OPM for issuance of a “more complete final
decision.” Id. at 4-5.
ANALYSIS
As the administrative judge found, where, as here, OPM completely
rescinds a reconsideration decision, the Board no longer has jurisdiction over the
appeal in which that reconsideration decision is at issue, and the appeal must be
dismissed. See, e.g., Richardson v. Office of Personnel Management ,
101 M.S.P.R. 128, ¶ 3 (2006); ID at 2. Therefore, the administrative judge’s
dismissal of the appellant’s appeal, stemming from OPM’s April 28, 2014
reconsideration decision, was correct.4 The fact that OPM subsequently issued
another reconsideration decision on August 12, 2014, has no bearing on the
propriety of the initial decision. Moreover, neither that fact, nor OPM’s further
determination that that reconsideration decision was also incorrect, provides any
basis for the Board to vacate the initial decision, and we decline to do so. Nor
need we remand this case to OPM for issuance of yet another reconsideration
decision. OPM is free to issue such a decision at any time without action by the
3 This reconsideration decision is also not in the record.
4 Because we agree with the administrative judge’s determination that the Board lacks
jurisdiction over the appellant’s appeal, we have made no findings on the timeliness of
her petition for review.
4
Board. Nonetheless, we urge OPM to do so and to provide the appellant with a
final decision that addresses all the issues she has raised in her petition for review
and affords her proper appeal rights to the Board.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 on
6
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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. | DeLong_Lucille_D_AT-0831-14-0710-I-1__Final_Order.pdf | 2024-01-31 | LUCILLE D. DELONG v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-14-0710-I-1, January 31, 2024 | AT-0831-14-0710-I-1 | NP |
2,463 | https://www.mspb.gov/decisions/nonprecedential/Alexander_Edward_DE-0752-19-0008-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD ALEXANDER,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DE-0752-19-0008-C-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer L. Olson , Farmington, New Mexico, for the appellant.
Larrisa Emerson and Sharon Begay-McCabe , Window Rock, Arizona, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement of the parties’ settlement
agreement. 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.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
2 The appellant argues on petition for review that the agency induced him into signing
the settlement agreement by making promises regarding retirement benefits and health
benefits and that he would not have entered into the agreement otherwise. Compliance
Petition for Review File, Tab 1. A settlement agreement may be set aside or voided
only on the basis of certain limited grounds, including fraud, coercion, or mutual
mistake. Harris v. Department of Veterans Affairs , 99 M.S.P.R. 609, ¶ 3 (2005).
However, it is well settled that an attack on the validity of a settlement agreement must
be made in the form of a petition for review of the initial decision dismissing the appeal
as settled and not in a petition for enforcement. Hatcher v. Department of Justice ,
76 M.S.P.R. 97, 99 (1997). Thus, to the extent that the appellant seeks to attack the
validity of the settlement agreement, he may file a petition for review of the initial
decision dismissing his original appeal as settled. The Board makes no finding
regarding whether such a petition for review would be timely or, if untimely, whether
good cause exists for its untimeliness.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent
jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. 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.
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 | Alexander_Edward_DE-0752-19-0008-C-1_Final_Order.pdf | 2024-01-31 | EDWARD ALEXANDER v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DE-0752-19-0008-C-1, January 31, 2024 | DE-0752-19-0008-C-1 | NP |
2,464 | https://www.mspb.gov/decisions/nonprecedential/Covington_Carolyn_F_AT-1221-18-0560-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROLYN COVINGTON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-18-0560-W-1
DATE: January 31, 2024
THIS ORDER IS NONPRECEDENTIAL1
Carolyn Covington , Dillon, South Carolina, pro se.
Karla Dolby , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
On March 7, 2016, the appellant was appointed to a nursing position with
the agency at the William Jennings Bryan Dorn VA Medical Center in Columbia,
South Carolina. Initial Appeal File (IAF), Tab 2 at 4, 6. Pursuant to her
appointment authority, the appointment was subject to the completion of a 2-year
probationary period, at some point during which a Professional Standards Board
(PSB) would be convened to conduct a review of her conduct and make a
recommendation concerning her retention or separation from the agency. Id. at 4.
Following its required review of the appellant, id. at 30-33, the agency issued her
a notice of termination, stating that the PSB recommended that she be separated
during her probationary period, effective February 23, 2018, id. at 4.
Subsequently, the appellant filed a complaint with the Office of Special
Counsel (OSC), arguing that she was terminated in retaliation for filing an equal
employment opportunity (EEO) discrimination complaint, for disclosing to
management that patients were being burned by the use of an antibacterial soap
called “hibiclens,” and for seeking guidance from her local union about issues she
was having with management. Id. at 1. On June 6, 2018, OSC informed the
appellant that it was terminating its inquiry into her claims and that she had a
right to seek corrective action with the Board. Id.
On June 11, 2018, the appellant filed the instant IRA appeal with the
Board, arguing that her termination, among other things, was in retaliation for her
whistleblowing activity. IAF, Tabs 1-2. On September 17, 2018, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to nonfrivolously allege that she made a protected disclosure or
engaged in protected activity under the Whistleblower Protection Act (WPA).
IAF, Tab 13, Initial Decision (ID) at 8-10. The appellant has filed a petition for
3
review, and the agency has responded. Petition for Review (PFR) File,
Tabs 1, 3.2
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant established jurisdiction over her IRA appeal.
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedy before OSC and has made nonfrivolous
allegations that she 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) and the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C.
§ 1221(e)(1); Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed.
Cir. 2001); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
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. 5 U.S.C. § 2302(b)(8)(A); Chambers v. Department of
the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008); Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶ 18 (2013). A nonfrivolous allegation of a
2 Following the close of the record on review, the appellant submitted a motion to
submit an additional pleading. PFR File, Tab 6. In her motion, she provides a narrative
argument, asserting that she did not have access to any of the PSB files or results and
that the agency never witnessed her performing her duties, yet issued poor performance
evaluations. Id. at 7-8. She also raises a discrimination claim and references two
complaints related to this matter that were filed with the Equal Employment
Opportunity Commission in 2017 and 2018. Id. at 8-9. The Board generally does not
permit an additional pleading after the close of the record on review unless the party
demonstrates a need for such a pleading. See 5 C.F.R. § 1201.114(a)(5) (requiring that
a motion for leave to file an additional pleading on review “describe the nature of and
need for the pleading”). Although the appellant’s motion includes arguments related to
her appeal, she has not specifically identified what she wishes to submit. PFR File,
Tab 6. Further, given that we are remanding this appeal for further adjudication on the
merits, the appellant will have the opportunity to submit additional evidence and
argument when the record reopens below. Accordingly, we deny the appellant’s motion
to submit an additional pleading.
4
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)(A). Salerno, 123 M.S.P.R. 230, ¶ 6. 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. Once an appellant establishes jurisdiction
over her IRA appeal, she is entitled to a hearing on the merits of her claim.
Id. at 5.
The appellant nonfrivolously alleged that she made
protected disclosures.
It appears undisputed that the appellant exhausted her remedy with OSC.
IAF, Tab 2 at 1-3; ID at 8. At issue here is whether the appellant has
nonfrivolously alleged that she made a protected disclosure or engaged in
protected activity that was a contributing factor in at least one personnel action
taken against her. ID at 9-10; PFR File, Tab 1 at 6, 8-9, 17, 25-31. In the initial
decision, the administrative judge found that an individual’s filing of an EEO
complaint is not one of the forms of protected activity covered under the WPA by
5 U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). ID at 9.
He also found that the disclosure regarding the use of hibiclens was not a
protected disclosure because “there is no evidence in the record about how
common or serious the patient reactions” were. Id.
On review, the appellant appears to reassert her claim that her EEO
complaint constituted protected activity, and she contends that the disclosure
regarding the use of hibiclens constituted a protected disclosure, as did her
communication with her union regarding placement of a falsified proficiency
evaluation in the package submitted to the PSB. PFR File, Tab 1 at 8, 19, 14, 24,
26. Regarding the August 10, 2017 EEO complaint, we agree with the
5
administrative judge that this activity is not covered under the WPA. Although
the appellant’s EEO complaint does not appear to be included in the record, the
appellant has claimed, and OSC has stated, that it was based on claims of
discrimination. IAF, Tab 1 at 6; Tab 2 at 56. Such activity is not protected by
5 U.S.C. § 2302(b)(8) or (b)(9 ). Edwards v. Department of Labor , 2022 MSPB 9,
¶¶ 10, 21-23, aff’d, No. 2022-1967 (Fed Cir. July 7, 2023).3
Regarding the appellant’s alleged disclosure concerning the agency’s use of
hibiclens, we disagree with the administrative judge’s conclusion that the
appellant failed to make a nonfrivolous allegation that this constituted a protected
disclosure. Given the nature of the appellant’s position and her disclosure, we
look at whether the appellant made a nonfrivolous allegation that she reasonably
believed that her disclosure evidenced a substantial and specific danger to public
health or safety. 5 U.S.C. § 2302(b)(8)(A)(ii). In determining whether a
disclosure evidenced a substantial and specific danger to public health or safety,
it is relevant for the Board to consider factors such as (1) the likelihood of harm
resulting from the danger; (2) the imminence of the potential harm; and (3) the
nature of the potential harm. Chambers, 515 F.3d at 1369; Parikh v. Department
of Veterans Affairs , 116 M.S.P.R. 197, ¶ 14 (2011).
Here, the appellant has alleged that the danger posed by the agency’s use of
a specific antibacterial soap had already resulted in harm. IAF, Tab 2 at 39.
3 The Board has held that engaging in EEO activity is considered protected activity
under 5 U.S.C. § 2302(b)(9)(A)(i) only when the complaint seeks to remedy
whistleblower reprisal under 5 U.S.C. § 2302(b)(8). 5 U.S.C. §§ 1221(a), 2302(b)(9)
(A); see Bishop v. Department of Agriculture , 2022 MSPB 28, ¶ 15; Edwards, 2022
MSPB 9, ¶¶ 21-24 (clarifying that the Whistleblower Enhancement Act, Pub. L. No.
112-199, 126 Stat. 1465 (2012), did not expand the scope of section 2302(b)(8) to
include Title VII claims). The appellant’s own claims show that this is not the case
here. Further, to the extent that the appellant’s claims could fall under 5 U.S.C.
§ 2302(b)(9)(C) as a disclosure to an agency component responsible for internal
investigation or review, that provision did not become law until December 12, 2017,
postdating any personnel actions at issue in this appeal except for the termination
decision itself. National Defense Authorization Act of 2018, Pub. L. No. 115-91
§ 1097(c)(1), 131 Stat. 1283, 1618 (2017). That provision is not retroactive. Edwards,
2022 MSPB 9, ¶¶ 29-34.
6
Specifically, the appellant alleged that at least seven veterans in her unit suffered
burns as a result of the agency’s use of hibiclens and that several other units
faced the same problems. Id. Further, the fact that the witnessed dangers are
alleged to be limited to patients in the agency’s facilities does not prevent the
dangers from being substantial and specific to public health or safety. See
Wojcicki v. Department of the Air Force , 72 M.S.P.R. 628, 634 (1996) (finding
that a danger may be substantial and specific even though the perceived danger
was to a limited number of Government personnel and not to the general public at
large). Based on the foregoing, we find that the appellant nonfrivolously alleged
that she reasonably believed that her disclosure evidenced a substantial and
specific danger to public health or safety, and therefore, nonfrivolously alleged
that she made a protected disclosure. As such, we reverse the administrative
judge’s finding that the appellant’s claims could not constitute a nonfrivolous
allegation of a protected disclosure because “there is no evidence in the record
about how common or serious the patient reactions to hibiclens were.” ID at 9.
See Rusin v. Department of the Treasury , 92 M.S.P.R. 298, ¶ 17 (2002) (stating
that it is well established that the WPA is a remedial statute intended to improve
protections for Federal employees and, as such, it should be broadly construed in
favor of those whom it was meant to protect).
The administrative judge did not address the appellant’s contention that she
made a protected disclosure when she sought guidance in January 2018 from her
union because her supervisor had placed a falsified proficiency evaluation in the
package provided to the PSB.4 IAF, Tab 2 at 35, 38; PFR File, Tab 1 at 8-10,
14-15, 20. The appellant alleges that the evaluation recited accusations against
her made by other employees, she had never been given an opportunity to address
the accusations, and her supervisor falsely claimed that she had provided the
appellant with multiple opportunities to sign the document but the appellant had
4 The appellant does not allege that she filed a grievance over the matter, so she did not
engage in protected activity as defined in 5 U.S.C. § 2302(9)(A)(i).
7
declined. PFR File, Tab 1 at 17, 20. We find that the appellant has made a
nonfrivolous allegation that she reasonably believed she was disclosing an abuse
of authority when she informed her union that her manager had placed the
proficiency evaluation in a file provided to a PSB without ever showing the
evaluation to the appellant or allowing her an opportunity to address the
accusations in it or sign it. See Wheeler v. Department of Veterans Affairs ,
88 M.S.P.R. 236, 241, ¶ 13 (2001) (holding that an abuse of authority occurs
when there is an arbitrary or capricious exercise of power by a Federal official or
employee that adversely affects the rights of any person or that results in personal
gain or advantage to himself or to preferred other persons).
The appellant nonfrivolously alleged that the agency took three
personnel actions against her.
The administrative judge appears to have considered only the appellant’s
termination as a personnel action. ID at 8-10. However, the appellant alleged in
her pleadings below that, in addition to her termination, in or around late
July/early August 2017, the agency also reassigned her to a position as a nurse
educator for the nursing service orientation and 1 month later detailed her to
another position. IAF, Tab 2 at 43-44; Tab 10 at 16, 24, 27, 44. Both of these
allegations were properly exhausted before OSC, IAF, Tab 2 at 1, and are
recognized as personnel actions under 5 U.S.C. § 2303(a)(2)(A)(iv).
Accordingly, we find that the appellant nonfrivolously alleged that the agency
took three personnel actions against her—a termination, a detail, and a
reassignment.5
5 On review, the appellant also seems to assert that the agency took several other
personnel actions against her, including subjecting her to a hostile work environment,
stopping her pay and benefits 2 weeks prior to the effective date of her termination, not
allowing her to participate in interdisciplinary teams, failing to provide her with a fair
and sufficient orientation, failing to sufficiently question her during her probationary
conduct proceeding, and falsifying proficiency reports. PFR File, Tab 1 at 8, 13, 15,
22-23, 27. However, the appellant has failed to show that any of these allegations were
exhausted before OSC. We, therefore, are without jurisdiction to consider them. See
McCarthy v. Merit Systems Protection Board , 809 F.3d 1365, 1375 (Fed. Cir. 2016)
8
The appellant nonfrivolously alleged that the protected disclosure
regarding hibiclens was a contributing factor in all three personnel
actions.
We now consider whether the appellant nonfrivolously alleged that her
disclosure regarding hibiclens was a contributing factor in the personnel actions
she alleges were retaliatory. Salerno, 123 M.S.P.R. 230, ¶ 5.
In the initial decision, the administrative judge found that “even if the
hibiclens issue constituted a protected disclosure . . . the jurisdictional test for
contributing factor is nonetheless unsatisfied” because the appellant failed to
allege that she believed that it was a contributing factor in any later personnel
action against her and because it is unclear whether the PSB or deciding official
was aware of it. ID at 9-10. We disagree.
An appellant may make a nonfrivolous allegation that a disclosure was a
contributing factor in a personnel action by alleging circumstantial evidence, such
as evidence that the official taking the personnel action knew of the disclosure,
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Johnson v. Department of Defense , 95 M.S.P.R. 192, ¶ 8
(2003), aff’d, 97 F. App’x 325 (Fed. Cir. 2004). First, the appellant meets the
timing part of this knowledge and timing test because the detail and reassignment
occurred within 6-7 months of the January 12, 2017 hibiclens disclosure, and the
termination occurred approximately 13 months after the disclosure. IAF, Tab 2
at 4; Tab 10 at 10 -11, 24, 44; see Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 21 (2015) (stating that a personnel action that occurs within
1 to 2 years of the protected disclosures satisfies the knowledge/timing test).
Second, although the appellant does not allege that the official who issued
the termination decision or the PSB, which established the basis for the
termination, were aware of her disclosure, she does allege that her supervisor
(finding that the Board is without jurisdiction to consider claims not exhausted with
OSC).
9
influenced the PSB proceeding against the appellant’s favor and that she had
actual knowledge of the disclosure. IAF, Tab 2 at 34, 56-58, 61; Tab 10 at 8.
Specifically, the appellant alleges, in both her pleadings below and again on
review, that her supervisor made her the “point of contact” on the hibiclens issue,
and was, therefore, aware of the disclosure. IAF, Tab 2 at 39; PFR File, Tab 1
at 24. She also alleges that her supervisor was the agency official who provided
the evidentiary file to the PSB which contained accusations of misconduct
reported by other employees and at least three falsified proficiency reports, and
who “regulated” the PSB process. IAF, Tab 2 at 56-58; Tab 10 at 8, 14; PFR
File, Tab 1 at 4, 8, 10, 16. This amounts to an allegation that the agency decision
makers either knew of the disclosure via the appellant’s supervisor, or were
influenced by the supervisor, who allegedly knew of the disclosure. See Jessup v.
Department of Homeland Security , 107 M.S.P.R. 1, ¶ 10 (2007). Because the
appellant’s burden at this stage is only to make a nonfrivolous claim, the
allegation of knowledge or constructive knowledge is sufficient to meet that low
standard. See id.
Furthermore, the appellant alleges that the same supervisor who had actual
knowledge of the disclosure, see supra p.8, was directly involved in the
July/August 2017 reassignment and detail. IAF, Tab 2 at 43-44. Moreover, the
reassignment and detail occurred approximately 7 or 8 months after the appellant
made the hibiclens disclosure. Thus, we find that the appellant has also made a
nonfrivolous allegation that the disclosure was a contributing factor in these
personnel actions.
The appellant nonfrivolously alleged that her disclosure regarding
the proficiency evaluation was a contributing factor in
the termination.
Now we must determine whether the appellant has made a nonfrivolous
allegation that her second disclosure was a contributing factor in the personnel
actions. First, she alleges that her disclosure to the union regarding the falsified
10
proficiency evaluation occurred in January 2018, which was after the
reassignment and detail, so the communication could not have been a contributing
factor in those actions. See Orr v. Department of the Treasury , 83 M.S.P.R. 117,
124 (1999) (holding that when the personnel action occurred before the protected
disclosures the disclosures could not have been a contributing factor in the
action), aff’d, 232 F.3d 912 (Fed. Cir. 2000).
Further, while it is difficult to determine definitively from this record, it
does not appear that the appellant is alleging that the individuals involved in, or
who influenced, the termination had any direct knowledge of her communication
with the union. Nonetheless, in assessing whether a disclosure was a contributing
factor in a personnel action, the Board may consider other relevant evidence,
including but not limited to, the strength or weakness of the agency’s reasons for
taking the personnel action(s), whether the whistleblowing disclosure and/or
protected activity was directed at the responsible agency officials, and whether
the responsible agency officials had a desire or motive to retaliate against the
appellant. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 65;
Powers v. Department of the Navy , 69 M.S.P.R. 150, 156 (1995).
Considering these factors, we find that, based on the current state of the
record, it is not possible to meaningfully evaluate the strength of the evidence
supporting the PSB recommendation to terminate the appellant or the termination
action itself. However, the appellant’s disclosure regarding the falsified
proficiency evaluation targeted the supervisor who provided the evidentiary file
to the PSB, and that file contained the accusations of misconduct reported by
other employees as well as the falsified proficiency report at issue. Therefore this
disclosure was directed at an individual who the appellant alleges had significant
influence over the process leading up to the termination, and who would have had
a motive to retaliate against the appellant. Accordingly, weighing the allegations
relevant to these factors, we find that the appellant has met her burden to make a
11
nonfrivolous allegation that the disclosure to the union was a contributing factor
in her termination.
The Board does not have jurisdiction to consider the appellant’s due process and
harmful procedural error claims or to consider the merits of her termination.
On review, the appellant argues that the agency violated her due process
rights because it did not provide her with a sufficient opportunity to provide her
version of events at the PSB hearing.6 PFR File, Tab 1 at 5-8, 10-18. This claim
includes her many assertions, among others, that she was not cross-examined on
the alleged misconduct before the PSB, that she did not have access to the PSB
file until shortly before the hearing, that 97% of the information that her
supervisor provided to the PSB was not witnessed by the supervisor, and that the
PSB did not fully review her evidence file. Id. at 4-7, 18.
The appellant also appears to argue on review that the agency engaged in
harmful procedural error. Id. at 15, 22, 24. Specifically, she alleges that the PSB
should have been comprised of outside employees of the agency from a different
location, but it was not. Id. at 15. She also alleges that the agency was supposed
to place a self-generated proficiency document into her personnel folder, which
would have gone to the PSB, but it did not. Id. at 23. She also alleges that the
agency was required to assist her in completing a satisfactory orientation, and it
did not. Id. at 24. However, the Board is without jurisdiction to consider due
process and harmful procedural error claims in an IRA appeal. See Parikh,
116 M.S.P.R. 197, ¶ 34 (finding that the Board lacks jurisdiction over an
allegation of a due process violation raised in an IRA appeal under 5 U.S.C.
§ 1221); see Salerno, 123 M.S.P.R. 230, ¶ 15 (finding that the Board did not have
jurisdiction to consider an appellant’s harmful procedural error claim directed at
6 The appellant appears to also allege that the agency violated her constitutional right of
equal protection; however, she does not provide any basis for this assertion, but rather
she discusses it exclusively within the context of her due process claims. PFR File,
Tab 1 at 4-7, 14-18, 31. As such, we have considered these assertions as a single claim.
12
the conduct of the OSC because the instant action before the Board was an IRA
appeal).
The appellant also spends a significant portion of her petition for review
arguing the underlying merits of the PSB proceeding and subsequent termination.
PFR File, Tab 1 at 19-31. The Board is also without jurisdiction to consider these
claims. See Geyer v. Department of Justice , 70 M.S.P.R. 682, 687 (1996) (stating
that the Board lacks the authority in an IRA appeal to adjudicate the merits of an
underlying personnel action and is limited to adjudicating the whistleblower
allegations), aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table).
Because we find that the appellant has established jurisdiction, we remand
the appeal for a hearing on the merits. See Salerno, 123 M.S.P.R. 230, ¶ 5.
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. | Covington_Carolyn_F_AT-1221-18-0560-W-1__Remand_Order.pdf | 2024-01-31 | CAROLYN COVINGTON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-18-0560-W-1, January 31, 2024 | AT-1221-18-0560-W-1 | NP |
2,465 | https://www.mspb.gov/decisions/nonprecedential/Vazquez_Roberto_J_DA-0752-15-0055-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERTO J. VAZQUEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-15-0055-I-2
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
R
oberto J. Vazquez , San Antonio, Texas, pro se.
April Garrett and Jamelda Burton-Domino, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the administrative judge’s analysis of the appellant’s affirmative defenses
of discrimination and retaliation, we AFFIRM the initial decision.
The agency removed the appellant from his position as a Medical Support
Assistant based on the following charges: (1) failure to follow established
procedures; (2) failure to follow instructions; (3) lack of candor; (4) misuse of
Government time; (5) absent without leave (AWOL); (6) offensive language; and
(7) failure to safeguard personally identifiable information. Vazquez v.
Department of Veterans Affairs , MSPB Docket No. DA-0752-15-0055-I-1, Initial
Appeal File (IAF), Tab 10, Subtabs 4d, 4k. The appellant filed a Board appeal
and requested a hearing. IAF, Tab 1. Following a hearing, the administrative
judge issued an initial decision sustaining the removal. Vazquez v. Department of
Veterans Affairs , MSPB Docket No. DA-0752-15-0055-I-2, Appeal File (AF),
Tab 38, Initial Decision (ID). She first found that the second specification of the
lack of candor charge and the AWOL charge involved the same misconduct, that
the AWOL charge was a continuation of the lack of candor specification, and she
merged the two into one AWOL charge. ID at 3-4. She also found that the
agency did not prove the misuse of Government time charge by preponderant
evidence and did not sustain the charge. ID at 12-14. The administrative judge
determined that the agency had proven the remaining charges. ID at 4-22. She
then found that the appellant had not proven his affirmative defenses of laches,
3
discrimination on the bases of his race and national origin, retaliation for prior
equal employment opportunity (EEO) activity, and due process violations. ID
at 22-29. The administrative judge concluded that a nexus existed between the
sustained misconduct and the efficiency of the service. ID at 30. Finally, despite
her decision not to sustain all of the agency’s charges, she found that the penalty
of removal was reasonable. ID at 30-32. The appellant filed a petition for review
of the initial decision; the agency did not respond. Petition for Review (PFR)
File, Tab 15.
On review, the appellant renews his arguments that he did not receive
adequate training on the procedures and instructions he was charged with failing
to follow, the charge of failure to follow instructions was inaccurate, the charges
should not be sustained on the ground of laches, agency officials discriminated
against him because of his ethnicity and in retaliation for his protected EEO
activity, the agency did not show a nexus between the misconduct and the
penalty, and he was subjected to a disparate penalty. Id. He also reargues the
merits of the charges of failure to follow instructions, AWOL, and offensive
language. Id. at 11-20. We have considered the appellant’s arguments but
conclude that they do not establish error in the administrative judge’s
well-reasoned findings. See Clay v. Department of the Army , 123 M.S.P.R. 245,
¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings when
she considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on the issue of credibility); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
We also find the appellant’s arguments regarding the administrative judge’s
rulings during the proceedings to be without merit. We find no evidence that the
administrative judge exhibited bias against the appellant or failed to advise him
of the relevant hearing procedures. PFR File, Tab 15 at 7-8. An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
4
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army , 287 F.3d 1358, 1362 -63 (Fed. Cir. 2002)
(quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). Here, the appellant’s
assertion of bias is contrary to his characterizing the administrative judge’s
conduct as “impartial and fair” immediately after the hearing and is not supported
by the hearing record. AF, Tab 34 at 3, Tab 35, Hearing Compact Disc (HCD).
Moreover, the administrative judge sufficiently advised the appellant of the
relevant elements and burdens of proof to establish his affirmative defenses, and
of general hearing procedures prior to and during the hearing. AF, Tab 13,
Tab 23, HCD.
In addition, the appellant fails to support his argument that the
administrative judge erred in excluding as cumulative or irrelevant the testimony
of one of his witnesses, and we discern no reason to disturb this ruling. PFR File,
Tab 15 at 33; AF, Tab 13 at 6 n.5. Finally, the administrative judge’s finding that
the appellant completed the annual agency privacy and information security
training on November 13, 2014, contains a typographical error, as the record
reflects that the appellant completed the training on November 13, 2013, thus we
find no merit in the appellant’s argument that the agency did not prove that he
completed the training. PFR File, Tab 15 at 21; IAF, Tab 10, Subtab 4ee; AF,
HCD (testimony of the privacy officer).
On review, the appellant also argues that the administrative judge erred in
finding that the proposing and deciding officials were not aware of his EEO
complaint in concluding that retaliation for his protected EEO activity was not a
motivating factor in his removal.2 PFR File, Tab 15 at 24-25; ID at 28-29. The
2 In addition to notifying the appellant of the elements and burdens of proof to show
discrimination on the bases of race and national origin, and retaliation for protected
EEO activity, the administrative judge issued an additional order notifying the appellant
of the elements and burdens of proof to show discrimination of the bases of disability
and religion. AF, Tabs 13, 23. The administrative judge did not address any claims of
discrimination on the bases of disability or religion in the initial decision, and the
record does not reflect that the appellant asserted discrimination on these bases.
5
proposing and deciding officials each testified that they did not recall whether
they knew of the appellant’s EEO complaint at the time of his removal. AF, HCD
(testimony of the proposing official and the deciding official). However, the
record evidence reflects that each official may have been aware of the EEO
complaint prior to the appellant’s removal. The record contains an October 14,
2014 Equal Employment Opportunity Commission (EEOC) order granting the
agency’s motion for summary judgment, in which the EEOC administrative judge
presiding over the matter found that it was not in dispute that the proposing
official was “not aware of [the appellant’s] national origin or his prior EEO
activity until this claim was presented.” IAF, Tab 10, Subtab 3b at 10. The
agency’s motion for summary judgment, the appellant’s opposition to the motion,
and the agency’s reply were filed in July and August 2013, suggesting that the
proposing official became aware of the complaint prior to the September 2014
proposed removal. Id. at 8, Subtab 4k at 1. Additionally, the appellant raised the
EEO complaint in his reply to the proposed removal, thus the deciding official
generally was aware of his EEO complaint at the time of his removal. Id.,
Subtab 4f at 9.
Even if the proposing and deciding officials were aware of the appellant’s
protected EEO activity at the time of his removal, the administrative judge cited
additional evidence in support of her finding that the appellant did not show that
retaliation for his EEO activity was a motivating factor in his removal; moreover,
she went on to find that the agency showed that it would have removed the
appellant absent any retaliatory motive, and we discern no reason to disturb these
findings. ID at 28-29. Accordingly, the appellant has not shown that any
erroneous finding affected the outcome of this matter.
In assessing the appellant’s evidence that discrimination on the bases of
race or national origin and retaliation for protected EEO activity were a
motivating factor in his removal, the administrative judge applied the evidentiary
standards set forth in Savage v. Department of the Army , 122 M.S.P.R. 612,
6
¶¶ 42-43, 51 (2015), overruled in part by Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 23-25. ID at 23-29. In Savage, the Board stated that,
when an appellant asserts an affirmative defense of discrimination or reprisal, the
Board first will inquire whether the appellant has shown by preponderant
evidence that the prohibited consideration was a motivating factor in the
contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. The Board further
stated that, in making his initial showing, an appellant may rely on direct
evidence or any of the three types of circumstantial evidence described in Troupe
v. May Department Stores Co ., 20 F.3d 734 (7th Cir. 1994), i.e., pretext,
comparator or “convincing mosaic,” either alone or in combination. Savage,
122 M.S.P.R. 612, ¶ 51.
The Board has since clarified that Savage does not require administrative
judges to separate “direct” from “indirect” evidence and to proceed as if such
evidence were subject to different legal standards, or to require appellants to
demonstrate a “convincing mosaic” of discrimination or reprisal. Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647, ¶ 29 (2016) (quoting Ortiz v.
Werner Enterprises , Inc., 834 F.3d 760, 764 (7th Cir. 2016)), clarified by Pridgen
v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-24. Instead, as the
Board stated in Savage, the dispositive inquiry is whether the appellant has shown
by preponderant evidence that the prohibited consideration was a motivating
factor in the contested personnel action. Gardner, 123 M.S.P.R. 647, ¶ 30; see
Savage, 122 M.S.P.R. at 613, ¶ 51. Here, the administrative judge discussed the
distinction between direct and circumstantial evidence, but there is no indication
that she disregarded any evidence because it was not direct or circumstantial, and
we conclude that she properly considered the evidence as a whole in finding that
the appellant failed to prove by preponderant evidence that discrimination or
retaliation was a motivating factor in the removal action.3 ID at 23-29. As such,
3 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusion regarding this claim, we do not reach the question of whether
discrimination or retaliation was a “but-for” cause of the removal action. See
7
we discern no basis upon which to disturb the administrative judge’s findings
denying the appellant’s affirmative defenses.
On review, the appellant also alleges that the agency officials involved in
his removal committed prohibited personnel practices; however, the alleged
prohibited personnel practices are not related to his removal and do not establish
a basis for review. PFR File, Tab 15 at 22-31. The appellant further renews his
arguments that agency officials retaliated against him for filing complaints with a
member of Congress and a complaint with the agency’s Inspector General. Id.
at 7, 23-26, 30-31. He also argues that the deciding official ignored complaints
he made to her about alleged threats the proposing official made to him and about
an alleged criminal assault by a supervisor in the polytrauma unit of the hospital.
Id. at 7, 23-26. Although the appellant’s arguments could be construed as raising
an affirmative defense of retaliation for whistleblowing, the appellant’s
substantive arguments regarding these complaints are those that he raised in
connection with his affirmative defense of discrimination; namely, that agency
officials ignored his complaints or treated him more harshly than other employees
because of his Mexican-American heritage. The administrative judge identified
the appellant’s affirmative defenses as discrimination on the bases of race and
national origin and retaliation for protected EEO activity. AF, Tab 13 at 1-2, ID
at 22. The appellant did not object to the administrative judge’s characterization
of his affirmative defenses in her summary of the prehearing conference or at the
outset of the hearing. AF, Tab 13, HCD (statement of the appellant).
Consequently, the administrative judge discussed the incidents that the appellant
complained of in the context of his claim of discrimination and found that they
did not evidence discrimination. ID at 24-28. On review, the appellant reargues
the merits of his complaints and does not contest the administrative judge’s
analysis of the complaints in the context of his affirmative defense of
discrimination. We discern no reason to disturb the administrative judge’s
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 29-33.
8
findings in this regard. See Brown v. Department of the Army , 96 M.S.P.R. 232,
¶ 6 (2004) (finding that a party cannot object on review to an administrative
judge’s characterization of a charge when the party did not object to the
characterization set forth in the prehearing conference summary despite being
afforded the opportunity to do so); 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-related rulings).
The appellant has filed numerous supplemental exhibits to his petition for
review, the majority of which are contained in the record below. PFR File,
Tabs 15-17. To the extent the remaining supplemental exhibits are not in the
record, the appellant has not shown that they were unavailable, despite his due
diligence, before the record closed, and we decline to consider them. See
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (providing that
under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted for
the first time on review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence). Accordingly, we affirm the initial
decision as modified herein.
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
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.
9
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
10
for Merit Systems Protection Board appellants before the 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
11
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.
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. | Vazquez_Roberto_J_DA-0752-15-0055-I-2_Final_Order.pdf | 2024-01-31 | ROBERTO J. VAZQUEZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-15-0055-I-2, January 31, 2024 | DA-0752-15-0055-I-2 | NP |
2,466 | https://www.mspb.gov/decisions/nonprecedential/Wilson_Evelyn_AT-0752-21-0207-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EVELYN WILSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-21-0207-I-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harvey G. Orr , Riverdale, Georgia, for the appellant.
Greg Allan Ribreau , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal for lack of jurisdiction without a hearing. On
petition for review, the appellant argues that the 5 U.S.C. § 7511(a)(1)(B)
definition of “employee” does not apply to City Carrier Assistants. She also
argues that the administrative judge should have sanctioned the agency and that
the administrative judge should have determined whether she was a preference
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
eligible because preference eligibles have the right to appeal based on denial of
due process and harmful procedural error. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Wilson_Evelyn_AT-0752-21-0207-I-1__Final_Order.pdf | 2024-01-31 | EVELYN WILSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-21-0207-I-1, January 31, 2024 | AT-0752-21-0207-I-1 | NP |
2,467 | https://www.mspb.gov/decisions/nonprecedential/Tatum_Valerie_D_CH-0831-18-0079-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALERIE D. TATUM,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0831-18-0079-I-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Valerie D. Tatum , Detroit, Michigan, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as barred by res judicata her appeal of the decision of the Office of
Personnel Management denying her application for annuity benefits under the
Federal Employees’ Retirement System. On review, the appellant argues the
merits of her appeal, but she does not address the issue of res judicata. 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 | Tatum_Valerie_D_CH-0831-18-0079-I-1__Final_Order.pdf | 2024-01-31 | VALERIE D. TATUM v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-18-0079-I-1, January 31, 2024 | CH-0831-18-0079-I-1 | NP |
2,468 | https://www.mspb.gov/decisions/nonprecedential/Nuttall_Mariya_DE-0752-17-0445-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIYA NUTTALL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-17-0445-I-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Denise Baker , Albuquerque, New Mexico, for the appellant.
Deanna Livingston , Esquire, Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant, formerly a Nursing Assistant with the agency’s New Mexico
VA Health Care System, has filed a petition for review of the initial decision,
which dismissed her involuntary resignation appeal for lack of jurisdiction.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’s petition for review was untimely filed by 2 days. Petition for Review
File, Tab 1. Because we agree with the administrative judge that the Board lacked
jurisdiction over the appeal, it is not necessary to make a finding regarding the
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 challenges the administrative judge’s
finding that she failed to show that the agency subjected her to duress or
coercion, or provided her with misleading or deceptive information, and thus, she
did not show that her resignation was involuntary. Initial Appeal File, Tab 26,
Initial Decision (ID) at 7-8; Petition for Review (PFR) File, Tab 1. Specifically,
the appellant renews her argument that it was the agency’s past practice to permit
an employee to resign after the agency had proposed disciplinary action against
the individual, and the agency would issue a “clean” Standard Form 50 (SF-50)
effecting the resignation that did not reference the disciplinary action. PFR File,
Tab 1 at 5-6. She contends that, in the past, the union did not have to specifically
request that the agency issue such an SF-50 and that the agency did not
communicate to the union that it intended to change this established practice in
her case. Id. at 6.
timeliness of the appeal. See Dean v. U.S. Postal Service , 115 M.S.P.R. 56, ¶ 13 n.5
(2010) (stating that, in light of the Board’s finding that the appellant failed to carry his
jurisdictional burden, it need not reach the issue of timeliness). 2
Our review of the record reflects that the administrative judge properly
considered the appellant’s arguments in finding that the agency issued to the
appellant an SF -50 showing a resignation in lieu of an involuntary action, which
was consistent with the appellant’s representative’s request to the agency that it
permit the appellant to resign in lieu of removal, and that the agency did not
represent to the appellant or to her representative that she would be permitted to
resign with a “clean” record that did not reflect an involuntary separation. ID
at 4-7. Thus, we discern no reason to disturb the administrative judge’s
well-reasoned findings. See Clay v. Department of the Army , 123 M.S.P.R. 245,
¶ 6 (2016) (finding no reason to disturb the administrative judge’s findings when
she considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on the issue of credibility); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). Accordingly,
we agree with the administrative judge that the appellant failed to prove by
preponderant evidence that the agency provided her with misleading information,
and thus, she did not show that her resignation was involuntary. ID at 7-8; see
Aldridge v. Department of Agriculture , 111 M.S.P.R. 670, ¶ 8 (2009) (holding
that an appellant who claims that an involuntary action resulted from
misinformation must show that the agency made misleading statements, and she
reasonably relied on the misinformation to her detriment). The initial decision
dismissing the appeal for lack of jurisdiction is affirmed.
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
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
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 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. 115-195,6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Nuttall_Mariya_DE-0752-17-0445-I-1_Final_Order.pdf | 2024-01-31 | MARIYA NUTTALL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-17-0445-I-1, January 31, 2024 | DE-0752-17-0445-I-1 | NP |
2,469 | https://www.mspb.gov/decisions/nonprecedential/Moghadam_Nafiseh_T_SF-1221-18-0407-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NAFISEH T. MOGHADAM,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-18-0407-W-1
DATE: January 31, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kevin L. Owen and Christopher H. Bonk , Silver Spring, Maryland,
for the appellant.
Maureen Ney , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her request for corrective action in an individual
right of action (IRA) appeal. For the reasons discussed below, we GRANT the
petition for review. We VACATE the initial decision to the extent that it held
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
that the appellant did not exhaust her administrative remedies with respect to her
February 15, 2015 statement in support of a colleague’s Federal district court case
and that the appellant failed to make a nonfrivolous allegation that the statement
constituted protected activity under 5 U.S.C. § 2302(b)(9). We FIND that the
appellant exhausted her administrative remedies as to the February 15, 2015
statement and made a nonfrivolous allegation that the statement was protected
activity under 5 U.S.C. § 2302(b)(9)(B). We further FIND that the appellant
made nonfrivolous allegations that the February 15, 2015 statement was a
contributing factor in the agency’s decision to take two personnel actions;
however, the record is insufficiently developed for us to determine whether the
appellant made nonfrivolous allegations that the statement was a contributing
factor in six additional personnel actions. Therefore, we REMAND the case to
the Western Regional Office for further adjudication in accordance with this
Order.
BACKGROUND
In May 2008, the agency appointed the appellant to a Physician Assistant
position in the excepted service, in the agency’s Ear, Nose, and Throat Clinic in
the Department of Surgery, pursuant to 38 U.S.C. § 7401(1). Initial Appeal File
(IAF), Tab 6 at 8 n.2, Tab 9 at 158. In May 2010, the agency terminated the
appellant from her position. IAF, Tab 1 at 20, Tab 6 at 8. In December 2016, the
agency reinstated her to a Physician Assistant position in Geriatric Extended and
Rehabilitation Care. IAF, Tab 6 at 8, Tab 9 at 156. In September 2017, the
appellant filed a complaint with the Office of Special Counsel (OSC) in which
she alleged that the agency had committed prohibited personnel practices and
retaliated against her for whistleblowing and protected activity. IAF, Tab 1
at 16-35. In January 2018, the agency proposed the appellant’s removal for
unacceptable performance, and the agency subsequently sustained the removal
3
action, effective March 18, 2018.2 IAF, Tab 1 at 12-15, Tab 9 at 20-21. On
March 26, 2018, OSC informed the appellant that it had terminated its inquiry
into her allegations regarding the agency’s prohibited personnel practices and
notified her of her right to seek corrective action from the Board. IAF, Tab 1
at 36-37.
On March 30, 2018, the appellant timely filed a Board appeal and requested
a hearing. IAF, Tab 1. The administrative judge notified the appellant of the
elements and burdens of proof to establish Board jurisdiction over an IRA appeal
and ordered her to file a response establishing jurisdiction. IAF, Tab 3. The
appellant filed a response in which she alleged that she had engaged in activity
protected under 5 U.S.C. § 2302(b)(9) by lawfully assisting an agency physician,
who had purportedly made disclosures regarding timecard fraud and other topics
protected under 5 U.S.C. § 2302(b)(8) and initiated litigation in opposition to the
agency’s retaliation for his disclosures that was protected under 5 U.S.C.
§ 2302(b)(9). IAF, Tab 6 at 6-8. Specifically, she alleged that: (1) sometime
between 2008 and 2010, agency officials solicited her for derogatory statements
against the physician, but she refused to make false allegations against him; (2) in
July 2014 and April 2015, the physician testified before a congressional
subcommittee regarding whistleblower retaliation, and in his April 2015
testimony, he stated that the agency had terminated the appellant, in part, due to
2 In April 2018, the agency notified the Board that it had rescinded the removal,
reinstated the appellant, and reissued a proposal to remove her. IAF, Tab 9 at 8, 15.
The status of the removal action is not relevant to the issue of jurisdiction in this
matter, however. Although the appellant indicated in her initial appeal that she was
challenging her removal in addition to whistleblower retaliation, she does not argue that
the Board has jurisdiction over her removal as an independently appealable action.
IAF, Tab 1 at 9, Tab 6. Moreover, as a Physician Assistant appointed pursuant to
38 U.S.C. § 7401(1), the appellant cannot appeal her removal directly to the Board, but
she may file an IRA appeal. See 5 U.S.C. §§ 4303(e), 7511(b)(10); Hawker v.
Department of Veterans Affairs , 123 M.S.P.R. 62, ¶ 2 n.1 (2015) (observing that, as a
physician appointed under 38 U.S.C. § 7401(1), the appellant could not directly appeal
his termination to the Board, but he retained the right to file an IRA appeal alleging that
his termination was retaliatory).
4
her support of him; and (3) on February 15, 2015, the appellant prepared a written
declaration that the physician filed on March 9, 2015 in support of a complaint
alleging violations of Title VII of the Civil Rights Act, which he had filed against
the agency in the U.S. District Court for the Central District of California. Id.;
see IAF, Tab 15 at 4-18.
The appellant further alleged that, in retaliation for her assistance to the
physician: (1) in 2010, the agency improperly terminated her; (2) in
December 2016, the agency reinstated her in a practice area in which she had no
prior experience; (3) starting in January 2017, her supervisor intermittently
compelled her to stay past her duty time and prevented her from collecting
compensation for it; (4) in March 2017, the agency issued her a focused
professional practice evaluation (FPPE) raising inaccurate allegations of
performance deficiencies; (5) also in March 2017, her supervisor placed her on a
performance improvement plan (PIP); (6) in June 2017, the agency changed the
appellant’s duties and no longer permitted her to see patients; (7) in July and
August of 2017, her supervisor informed her that she had failed a second FPPE;
(8) in January 2018, the agency proposed her removal; and (9) in March 2018, the
agency issued a decision to remove her. Id. at 8-9. Finally, the appellant alleged
that the agency officials involved in these personnel actions were aware of her
support of the physician. Id. at 9-11. The parties submitted the complaints that
the physician filed in Federal district court and related orders, the appellant’s
February 15, 2015 statement, and evidence that the physician had filed two OSC
complaints and an IRA appeal with the Board. IAF, Tabs 10, 12, 15, 17.
The administrative judge subsequently issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 19, Initial Decision (ID).
Specifically, she found that the appellant had not alleged or submitted any
evidence that she assisted the physician in his congressional testimony, nor was
the physician’s testimony before a congressional subcommittee an exercise of an
appeal, complaint, or grievance right granted by statute or regulation;
5
accordingly, the appellant did not make a nonfrivolous allegation that she
testified for or otherwise lawfully assisted the physician in the exercise of an
appeal, complaint, or grievance right when he testified before a congressional
subcommittee in 2014 and 2015. ID at 4-6. Additionally, the administrative
judge found that, because the physician did not pursue the remedy of a violation
of 5 U.S.C. § 2302(b)(8) in his Federal district court case, the appellant’s
testimony in support of his case did not constitute protected activity. ID at 6-7.
Moreover, the administrative judge found that the appellant did not raise before
OSC that she testified for or lawfully assisted the physician in his Federal district
court case. ID at 7. Finally, the administrative judge found that the Board did
not have jurisdiction over any claim that the appellant assisted the physician in
his 2011 OSC complaint because the complaint did not seek to remedy a violation
of section 2302(b)(8), and the appellant did not allege that she testified or
lawfully assisted the physician in connection with his 2014 OSC complaint and
did not raise this activity before OSC. ID at 8. Accordingly, the administrative
judge found that the appellant had failed to make a nonfrivolous allegation of
jurisdiction and dismissed the appeal.3 Id.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not responded to the petition.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board jurisdiction over an IRA appeal brought pursuant to the
Whistleblower Protection Enhancement Act of 2012 (WPEA), the appellant must
3 In a prior order, the administrative judge found that the Board did not have
jurisdiction over any allegations that the agency took retaliatory actions against the
appellant prior to December 27, 2012, the effective date of the Whistleblower
Protection and Enhancement Act of 2012 (WPEA). IAF, Tab 7 at 2. The appellant has
not challenged this ruling, and we discern no reason to disturb it. See Hooker v.
Department of Veterans Affairs , 120 M.S.P.R. 629, ¶¶ 10-15 (2014) (declining to give
retroactive effect to section 101(b)(1)(A) of the WPEA, which provided the Board with
jurisdiction over requests for corrective action for any personnel action taken, or
proposed to be taken, as a result of a prohibited personnel practice described in
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D)).
6
exhaust her administrative remedies 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 as specified in 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or activity was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1);
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). Jurisdiction
in an IRA appeal is determined based on the written record. See Graves v.
Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 22 (2016) (holding that an
employee is not entitled to a jurisdictional hearing in an IRA appeal).
On review, the appellant does not challenge the administrative judge’s
findings that she did not make a nonfrivolous allegation that she testified or
lawfully assisted the physician in his congressional testimony and that such
activity was protected under 5 U.S.C. § 2302(b)(9), rather than under 5 U.S.C.
§ 2302(b)(8). We discern no reason to disturb the administrative judge’s
well-reasoned findings regarding this issue. ID at 4-6; 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 where she considered the evidence as a whole and
drew appropriate inferences); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
The appellant argues that her provision of lawful assistance to the
physician in pursuing his Federal district court case was protected activity under
5 U.S.C. § 2302(b)(9)(B), which protects an individual who testifies for or
lawfully assists another individual in the exercise of any appeal, complaint, or
grievance right, regardless of whether it seeks to remedy a violation of 5 U.S.C.
§ 2302(b)(8). PFR File, Tab 1 at 8-10. She argues that the administrative judge
erred by finding otherwise and by dismissing her claim that she assisted the
physician in connection with his OSC complaints. Id. According to the
appellant, the administrative judge also erred in finding that she did not exhaust
7
her administrative remedies before OSC with respect to her claim that she
assisted the physician by providing a written statement, and she submits
additional correspondence with OSC discussing the statement. Id. at 10-12, 19.
Finally, the appellant argues that the physician’s Federal district court case
involved the exercise of a complaint in remedying personnel actions the agency
took, or threatened to take, because of disclosures the physician made that were
protected under 5 U.S.C. § 2302(b)(8), thus the appellant’s assistance to the
physician is protected under 5 U.S.C. § 2302(b)(9)(A)(i). Id. at 12-14.
The appellant exhausted her administrative remedies with respect to her claim
that she submitted a statement in support of the physician’s Federal district court
case and the nine personnel actions she alleges that the agency took in retaliation
for her protected activity.
In an IRA appeal, the Board may consider only matters that the appellant
first raised before OSC. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). The purpose of the requirement that an appellant
exhaust her remedies with OSC prior to filing an IRA appeal with the Board is to
give OSC “the opportunity to take corrective action before involving the Board in
the case.” Ward v. Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir.
1992). The WPEA provides that, if OSC finds that there is a substantial
likelihood that the information it received discloses a violation of the Act, it
“shall transmit the information to the head of the agency involved for
investigation and report.” Id. (making this finding based on the same language in
the prior Whistleblower Protection Act); see 5 U.S.C. § 1213(b)-(c). These
inquiries by OSC and their transmittal to agencies for remedial action are a major
component of OSC’s work. Ward, 981 F.2d at 526. 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 her initial OSC
complaint or correspondence with OSC. Chambers, 2022 MSPB 8, ¶ 11. In the
8
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 MSPB appeal. Id.; Mason,
116 M.S.P.R. 135, ¶ 8. To establish Board jurisdiction, the appellant must prove
exhaustion with OSC by preponderant evidence, not just present nonfrivolous
allegations of exhaustion. Chambers, 2022 MSPB 8, ¶ 11; 5 C.F.R.
§ 1201.57(c)(1).
Our review of the record reflects that the administrative judge incorrectly
concluded that the appellant did not raise before OSC her claim that she lawfully
assisted the physician in his Federal district court case. The appellant’s
September 2017 OSC complaint stated that the physician made disclosures in
2009 to 2010 and that she was “supportive as a witness to a whistleblower.” IAF,
Tab 1 at 23, 26. OSC’s March 26, 2018 letter also reflects that the appellant
alleged that she “served as a witness in a high-profile whistleblower’s complaint
between 2009 and 2010.” Id. at 36; see Baldwin v. Department of Veterans
Affairs, 113 M.S.P.R. 469, ¶ 8 (2010) (providing that the appellant may
demonstrate exhaustion through letters from OSC). Here, although the appellant
did not explicitly identify her assistance to the physician in the pursuit of his
Federal district court case, including the February 15, 2015 statement, she
provided OSC with sufficient grounds to investigate her claim that she assisted
the physician by serving as a witness. Accordingly, the appellant’s complaint to
the Board contains a more detailed account of her alleged protected activity,
rather than a new claim of protected activity. See, e.g., Briley v. National
Archives and Records Administration , 236 F.3d 1373, 1378 (Fed. Cir. 2001)
(finding that the appellant’s letters to OSC contained the core of her retaliation
claim and provided OSC with a sufficient basis to pursue an investigation);
Chambers, 2022 MSPB 8, ¶ 10 (stating that an appellant may give a more detailed
account of her whistleblowing activities before the Board than she did to OSC).
9
Additionally, the appellant has provided supplemental correspondence with
OSC that she did not provide below. PFR File, Tab 1 at 15-26. Generally, the
Board will not consider evidence submitted for the first time on review absent a
showing that it was unavailable before the record closed despite the party’s due
diligence, but the issue of the Board’s jurisdiction is always before the Board and
may be raised by either party or sua sponte by the Board at any time during a
Board proceeding. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313,
¶ 5 (2010); 5 C.F.R. § 1201.115. We have considered the appellant’s
supplemental correspondence, which states that “[a]t some point [she] had also
provided a written statement that [the physician] was a competent
clinician/mentor.” PFR File, Tab 1 at 19. We find that this was sufficient to
exhaust her administrative remedies regarding the February 15, 2015 statement.
We agree with the administrative judge that the appellant has not proven by
preponderant evidence that she exhausted administrative remedies before OSC
with respect to her claim that she lawfully assisted the physician in his complaints
to OSC. ID at 8. As discussed by the administrative judge, the appellant has not
identified how she assisted the physician in pursuing his 2011 and 2014
complaints to OSC and asserted that she only became aware of the physician’s
2014 OSC complaint and his subsequent IRA appeal during the pendency of the
instant appeal. IAF, Tab 17 at 4-7. The appellant did not mention the physician’s
2011 OSC complaint below, and we conclude that she was similarly unaware of
the complaint before the agency filed a copy of it during the proceedings below.
IAF, Tab 15 at 29-39. Accordingly, the appellant could not have provided OSC
with a sufficient basis on which to investigate her alleged assistance to the
physician in pursuing his OSC complaints during the pendency of OSC’s
investigation into the appellant’s claims. The appellant has failed to show by
preponderant evidence that she exhausted administrative remedies before OSC
with respect to her alleged assistance to the physician in the pursuit of his 2011
and 2014 complaints to OSC. Because the appellant failed to show that she
10
exhausted administrative remedies with respect to the physician’s OSC
complaints, we vacate the administrative judge’s finding that the appellant failed
to make a nonfrivolous allegation that her assistance to the physician in
connection with the OSC complaints constituted protected activity. ID at 8.
The administrative judge did not address whether the appellant raised
before OSC each of the personnel actions she alleges that the agency took against
her in retaliation for her protected activity. Our review of the appellant’s
complaint and correspondence to OSC reflects that she exhausted her
administrative remedies before OSC with respect to each of the personnel actions
she has raised before the Board, specifically: (1) in 2010, the agency improperly
terminated her, IAF, Tab 1 at 20, 23, 34; (2) in December 2016, the agency
reinstated her in a practice area in which she had no prior experience, id. at 20,
29; (3) starting in January 2017, her supervisor intermittently compelled her to
stay past her duty time and prevented her from collecting compensation for it, id.
at 20, 29-30; (4) in March 2017, the agency issued her a FPPE raising inaccurate
allegations of performance deficiencies, id. at 20, 30; (5) also in March 2017, her
supervisor placed her on a PIP, id. at 20, 30; (6) in June 2017, the agency
changed the appellant’s duties and no longer permitted her to see patients, id.
at 20, 30-31; (7) in July and August of 2017, her supervisor informed her that she
had failed a second FPPE, id. at 31-32; (8) in January 2018, the agency proposed
her removal, IAF, Tab 6 at 13; and (9) in March 2018, the agency issued a
decision to remove her, IAF, Tab 1 at 36.
The administrative judge erred in concluding that the appellant had failed to make
a nonfrivolous allegation that her February 15, 2015 statement constituted
protected activity under 5 U.S.C. § 2302(b)(9).
The administrative judge also erred in finding that the appellant failed to
make a nonfrivolous allegation that her February 15, 2015 statement constituted
protected activity under 5 U.S.C. § 2302(b)(9). Under section 2302(b)(9)(B), it is
a protected activity to “testify[] for or otherwise lawfully assist[] any individual
11
in the exercise of any right referred to in subparagraph (A)(i) or (A)(ii).” Graves,
123 M.S.P.R. 434, ¶ 12. Section 2302(b)(9)(A), in turn, covers the protected
activities of “the exercise of any appeal, complaint, or grievance right granted by
any law, rule, or regulation—(i) with regard to remedying a violation of
paragraph (8) [concerning retaliation for whistleblowing]; or (ii) other than with
regard to remedying a violation of paragraph (8).”
The administrative judge found that, in filing a complaint in Federal district
court alleging a violation of Title VII of the Civil Rights Act, the physician was
pursuing a complaint right granted by statute, and we agree. ID at 6; see Graves,
123 M.S.P.R. 434, ¶¶ 18-19 (interpreting the phrase “appeal, complaint, or
grievance” to mean an initial step toward taking legal action against the agency
for a perceived violation of employment rights). However, the administrative
judge incorrectly found that the physician’s suit in Federal district court could not
serve as the basis of the appellant’s protected activity because he was not
pursuing a remedy of a violation of 5 U.S.C. § 2302(b)(8). ID at 7. The
appellant correctly argues that, under 5 U.S.C. § 2302(b)(9)(B), it is protected
activity for an individual to testify for or otherwise lawfully assist another
individual in the exercise of any right referred to in subparagraph (A)(i) or (A)
(ii), and subparagraph (A)(ii) explicitly provides for the exercise of a complaint
right other than with regard to remedying a violation of 5 U.S.C. § 2302(b)(8).
See Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 6 n.3 (2014)
(observing that, although 5 U.S.C. § 1221(a) limits Board appeal rights under
5 U.S.C. § 2302(b)(9)(A) to individuals who exercised appeal, complaint, or
grievance rights to those remedying a violation of 5 U.S.C. § 2302(b)(8), there is
no such jurisdictional restriction for individuals filing a Board appeal pursuant to
5 U.S.C. § 2302(b)(9)(B)). Accordingly, the statutory basis for the physician’s
suit is not a bar to the appellant’s claim of protected activity in the instant matter.
The Board previously has found that a statement such as that written by the
appellant on February 15, 2015, which the physician filed in support of his
12
complaint in Federal district court, constitutes lawful assistance of an individual
in the exercise of an appeal right and thus constitutes protected activity under
5 U.S.C. § 2302(b)(9)(B). See Canada v. Department of Homeland Security ,
113 M.S.P.R. 509, ¶ 13 (2010) (holding that the submission of the appellant’s
affidavit as an exhibit in his supervisor’s Board appeal constituted lawful
assistance of an individual in the exercise of his appeal right). Accordingly, we
find that the appellant has made a nonfrivolous allegation that the physician’s use
of her February 15, 2015 statement in support of his Federal district court case
constituted protected activity under 5 U.S.C. § 2302(b)(9)(B). Because we find
that the appellant has made a nonfrivolous allegation that her statement
constituted protected activity under 5 U.S.C. § 2302(b)(9)(B), we need not
address the appellant’s argument that her statement also constituted protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i).
The appellant made a nonfrivolous allegation that her protected activity was a
contributing factor in the agency’s decision to take two personnel actions.
The administrative judge did not address whether the appellant made a
nonfrivolous allegation that her February 15, 2015 statement was a contributing
factor in the agency’s decision to take or fail to take the personnel actions
described by the appellant as retaliatory. At the jurisdictional stage of an IRA
appeal, the appellant need only raise a nonfrivolous allegation that the protected
activity was one factor that tended to affect the personnel action in any way.
Salerno, 123 M.S.P.R. 230, ¶ 13. One way to establish this criterion is the
knowledge/timing test, under which an employee may nonfrivolously allege that
the protected activity was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the protected activity and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
protected activity was a contributing factor in the personnel action. Id.; see
5 U.S.C. § 1221(e)(1). The Board has found that a personnel action taken within
13
1 to 2 years of a protected disclosure or protected activity meets the
knowledge/timing test. Dorney v. Department of the Army , 117 M.S.P.R. 480,
¶ 16 (2012).
The appellant’s February 15, 2015 statement occurred after her 2010
removal and thus could not have been a contributing factor in her initial removal.
See Sherman v. Department of Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015)
(providing that a disclosure that occurs after the personnel action at issue was
taken cannot be considered a contributing factor in that personnel action). Of the
remaining eight personnel actions that the appellant has raised in this appeal, only
two occurred within 2 years of her alleged February 15, 2015 protected activity,
namely, that in December 2016, the agency reinstated her in a practice area in
which she had no prior experience, and that starting in January 2017, her
supervisor intermittently compelled her to stay past her duty time and prevented
her from collecting compensation for it. IAF, Tab 6 at 8-9. With respect to these
two personnel actions, we find that the appellant has nonfrivolously alleged that
agency officials involved in the actions were aware of her protected activity. The
appellant alleges that the agency officials and human resources personnel
involved in the personnel actions allegedly taken against her were aware of the
physician’s claims of reprisal and her involvement in his pursuit of remedial
action. Id. at 9-11. In support of her allegations, the appellant observes that she
and the physician worked in the same region and describes a conversation that the
physician had with the agency official who proposed her removal regarding her
connection to the physician and alleged retaliation against the appellant. Id.
at 10-11, 10 nn.3-4. We find this evidence is sufficient to make a nonfrivolous
allegation that the appellant’s statement was a contributing factor in the two
personnel actions. See Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶¶ 14-16 (2016) (observing that, to establish jurisdiction in an
IRA appeal, the appellant can nonfrivolously allege actual or constructive
14
knowledge without specifically identifying which management officials were
responsible for the reprisal).
The time between the appellant’s protected activity and the remaining six
personnel actions spans just over 2 years to just over 3 years and is too great to
meet the knowledge/timing test. IAF, Tab 6 at 8-9; see, e.g., Salinas v.
Department of the Army , 94 M.S.P.R. 54, ¶ 10 (2003) (finding that a delay of
more than 2 years was too remote to satisfy the knowledge/timing test).
However, the knowledge/timing test is not the only way for an appellant to satisfy
the contributing factor standard. 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 whistleblowing was personally directed at the
proposing or deciding officials, and whether those individuals had a desire or
motive to retaliate against the appellant. Stiles v. Department of Homeland
Security, 116 M.S.P.R. 263, ¶ 24 (2011). Alternatively, the Board may consider
whether a personnel action that occurred more than 2 years after the protected
activity occurred was “part of a continuum of related personnel actions” in
analyzing whether the appellant met the knowledge/timing test. Agoranos v.
Department of Justice , 119 M.S.P.R. 498, ¶ 22 (2013).
Although the administrative judge implied in her jurisdictional order that
there is more than one way to show that protected activity was a contributing
factor in a personnel action, she did not identify any other methods of doing so
beyond the knowledge/timing test. IAF, Tab 3 at 2-3. The record is
insufficiently developed for us to determine whether the appellant has made a
nonfrivolous allegation that her February 15, 2015 statement was a contributing
factor in the six personnel actions that occurred more than 2 years after the
alleged protected activity. Accordingly, we remand this matter for the
administrative judge to provide the parties with an additional opportunity to
15
submit evidence and argument and to make additional findings regarding this
issue.
The appellant has made a nonfrivolous allegation that the eight actions occurring
in or after December 2016 are personnel actions covered under 5 U.S.C.
§ 2302(a)(2)(A).
We find that the appellant has made a nonfrivolous allegation that each of
the eight personnel actions occurring in or after December 2016 are covered
under 5 U.S.C. § 2302(a)(2)(A). The appellant’s allegation that the agency
reinstated her to a practice area in which she had no prior experience alleges a
personnel action covered under section 2302(a)(2)(A)(iv), concerning
reassignment, and section 2302(a)(2)(A)(v), concerning reinstatement. IAF,
Tab 6 at 8-9. Her allegation that her supervisor compelled her to stay past her
duty time without compensation addresses a decision concerning pay, covered
under section 2302(a)(2)(A)(ix). Her allegations regarding her placement on a
PIP, her proposed removal, and the decision to remove her all concern
threatened or actual disciplinary or corrective action covered under
section 2302(a)(2)(A)(iii). See Gonzales v. Department of Housing and Urban
Development, 64 M.S.P.R. 314, 319 (1994) (finding that a PIP by definition
involves a threatened personnel action, such as a reduction in grade or a
removal); cf. Caddell v. Department of Justice , 52 M.S.P.R. 529, 532 (1992)
(providing that “other” disciplinary or corrective action must be in the nature of a
5 U.S.C. chapter 75 action, such as a removal, to fall within the coverage of
5 U.S.C. § 2302(a)(2)(A)(iii)).
The appellant’s allegation that her duties were changed so that she was no
longer permitted to see patients concerns a significant change in duties,
responsibilities, or working conditions, covered under section 2302(a)(2)(A)(xii).
Additionally, her allegations regarding the agency’s issuance of an inaccurate
FPPE and her failure of a second FPPE may concern a performance evaluation
under Title 38, covered under section 2302(a)(2)(A)(viii), or, at a minimum,
16
concern a significant change in duties, responsibilities, or working conditions,
given that at least one FPPE recommended that the appellant no longer be
permitted to see patients. IAF, Tab 9 at 63-81, 87-88; see King v. Department of
Health and Human Services , 133 F.3d 1450, 1452-53 (Fed. Cir. 1998) (observing
that a performance evaluation, as distinguished from a progress report, is formal,
judges the quality of past work, and has practical consequences for the
employee). Accordingly, the appellant has made a nonfrivolous allegation that
the agency took eight covered personnel actions against her.
This matter is remanded for additional proceedings regarding whether the
appellant has made a nonfrivolous allegation that her protected activity was a
contributing factor in six personnel actions and for a hearing on the merits of the
appeal.
As set forth above, on remand, the administrative judge shall provide the
parties with an additional opportunity to submit evidence and argument and shall
make additional findings regarding whether the appellant has made a nonfrivolous
allegation that her protected activity was a contributing factor in the six personnel
actions that occurred more than 2 years after the protected activity occurred under
the alternative methods to the per se knowledge/timing test.
In addition, the appellant has made nonfrivolous allegations that, by
providing her February 15, 2015 statement, which the physician filed in support
of his Federal district court case, initiated to remedy violations of Title VII, she
engaged in activity protected under 5 U.S.C. § 2302(b)(9)(B), and the protected
activity was a contributing factor in the agency’s decision to take two personnel
actions. Accordingly, the appellant is entitled to a hearing on the merits of her
claim. After the administrative judge has determined whether the appellant has
met her jurisdictional burden with respect to the remaining six personnel actions,
she shall adjudicate the appellant’s IRA appeal pursuant to the standard set forth
in Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶¶ 13-14 (2015), to
adjudicate claims of reprisal for activity protected by 5 U.S.C. § 2302(b)(9)(B).
Specifically, the administrative judge shall determine whether the appellant has
17
established by preponderant evidence that she engaged in activity protected under
section 2302(b)(9)(B). Alarid, 122 M.S.P.R. 600, ¶ 13. Next, the administrative
judge shall determine whether the appellant’s participation in the protected
activity was a contributing factor in the challenged personnel actions at issue. Id.
If the appellant makes both of these showings by preponderant evidence, the
administrative judge shall determine whether the agency has shown by clear and
convincing evidence that it would have taken the same actions in the absence of
the appellant’s protected activity. Id., ¶ 14.
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this remand order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Moghadam_Nafiseh_T_SF-1221-18-0407-W-1_Remand_Order.pdf | 2024-01-31 | NAFISEH T. MOGHADAM v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-18-0407-W-1, January 31, 2024 | SF-1221-18-0407-W-1 | NP |
2,470 | https://www.mspb.gov/decisions/nonprecedential/Mendiola_Froylan_SF-1221-13-0440-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FROYLAN MENDIOLA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBERS
SF-1221-13-0440-X-1
SF-0752-13-0436-X-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David C Washington , Dan Stormer , Barbara Enloe Hadsell and
Acrivi Coromelas , Pasadena, California, for the appellant.
Ronald P. Ackerman , Los Angeles, California, for the appellant.
John Yap , Chula Vista, California, for the agency.
Amy L Dell , San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant filed a petition for enforcement of the Board’s Final Order in
the underlying appeals, and the administrative judge issued a compliance 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 finding the agency partially noncompliant. Mendiola v. Department of
Homeland Security , MSPB Docket No. SF-1221-13-0440-C-1, Compliance Initial
Decision (May 31, 2023). For the reasons set forth below, we DISMISS the
petition for enforcement as settled.
After the compliance initial decision was referred to the full Board to
obtain compliance, pursuant to 5 C.F.R. § 1201.183(b) & (c), the parties
submitted a document entitled “SETTLEMENT AGREEMENT,” dated December
12, 2023. Mendiola v. Department of Homeland Security , MSPB Docket No. SF-
1221-13-0440-X-1, Compliance Referral File (CRF), Tab 4. The document
provides, among other things, for the withdrawal of the petition for enforcement
with prejudice, as settled. Id. at 5.
Before 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). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. CRF, Tab 4 at 6. Accordingly, we find that
dismissing the appeals with prejudice to refiling (i.e., the parties normally may
not refile these appeals) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we accept
the settlement agreement into the record for enforcement purposes.
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)). 2
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Mendiola_Froylan_SF-1221-13-0440-X-1__Final_Order.pdf | 2024-01-31 | FROYLAN MENDIOLA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-1221-13-0440-C-1, January 31, 2024 | SF-1221-13-0440-C-1 | NP |
2,471 | https://www.mspb.gov/decisions/nonprecedential/Mendiola_Froylan_SF-0752-13-0436-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FROYLAN MENDIOLA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBERS
SF-1221-13-0440-X-1
SF-0752-13-0436-X-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David C Washington , Dan Stormer , Barbara Enloe Hadsell and
Acrivi Coromelas , Pasadena, California, for the appellant.
Ronald P. Ackerman , Los Angeles, California, for the appellant.
John Yap , Chula Vista, California, for the agency.
Amy L Dell , San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant filed a petition for enforcement of the Board’s Final Order in
the underlying appeals, and the administrative judge issued a compliance 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 finding the agency partially noncompliant. Mendiola v. Department of
Homeland Security , MSPB Docket No. SF-1221-13-0440-C-1, Compliance Initial
Decision (May 31, 2023). For the reasons set forth below, we DISMISS the
petition for enforcement as settled.
After the compliance initial decision was referred to the full Board to
obtain compliance, pursuant to 5 C.F.R. § 1201.183(b) & (c), the parties
submitted a document entitled “SETTLEMENT AGREEMENT,” dated December
12, 2023. Mendiola v. Department of Homeland Security , MSPB Docket No. SF-
1221-13-0440-X-1, Compliance Referral File (CRF), Tab 4. The document
provides, among other things, for the withdrawal of the petition for enforcement
with prejudice, as settled. Id. at 5.
Before 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). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. CRF, Tab 4 at 6. Accordingly, we find that
dismissing the appeals with prejudice to refiling (i.e., the parties normally may
not refile these appeals) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we accept
the settlement agreement into the record for enforcement purposes.
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)). 2
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Mendiola_Froylan_SF-0752-13-0436-X-1__Final_Order.pdf | 2024-01-31 | FROYLAN MENDIOLA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-1221-13-0440-C-1, January 31, 2024 | SF-1221-13-0440-C-1 | NP |
2,472 | https://www.mspb.gov/decisions/nonprecedential/Lee_Ann_M_CH-0845-18-0582-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANN M. LEE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0845-18-0582-I-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ann M. Lee , Elgin, Illinois, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) to deny as
untimely filed her request for reconsideration of its overpayment determination
under the Federal Employees Retirement System (FERS). 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).
2
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).
OPM’s regulations require that a request for reconsideration of an
overpayment decision be either postmarked or received by the agency within
30 calendar days from the date of the initial decision. 5 C.F.R. § 845.204(b)(1).
The regulatory provision under FERS regarding requests for reconsideration
provides that OPM may extend the time limit for filing when the requestor shows
that she was “not notified of the time limit and [was] not otherwise aware of it;”
or that she was “prevented by circumstances beyond [her] control from making
the request within the time limit.” Id. The Board will only reverse an OPM final
decision denying reconsideration under this regulatory provision if it finds that
OPM’s denial was unreasonable or an abuse of discretion. Barnett v. Office of
Personnel Management , 88 M.S.P.R. 95, ¶ 7 (2001).
Here, OPM issued its original overpayment decision on December 12,
2017. Initial Appeal File, Tab 5 at 11. The appellant does not assert that she was
not notified of the time limit, and her request for reconsideration was postmarked
January 31, 2018. Id. at 17-19. Accordingly, her request for reconsideration was
untimely filed by 20 days. See 5 C.F.R. § 845.204(b)(1).
3
On petition for review, the appellant argues for the first time that she has “a
difficult time” leaving her home—and thus retrieving her mail in a timely
manner—because of her medical condition, and she provides approximately
172 pages of medical documentation. Petition for Review (PFR) File, Tab 1. The
Board will generally not consider evidence and argument submitted for the first
time on review absent a showing that they were previously unavailable. 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 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); Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (finding 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). In any event, with one exception,
all of the evidence the appellant submits on review pertains to medical exams that
occurred in or after July 2018. PFR File, Tab 1. The exception is that one of the
documents concerns a medical exam the appellant had in May 2017. Id.
at 158-59. None of this evidence establishes that the appellant was prevented by
circumstances beyond her control from timely filing a request for reconsideration
within 30 days of OPM’s December 12, 2017 overpayment decision.
In sum, we find that although the appellant may have had a difficult time
retrieving her mail, this falls short of the regulatory provision requiring that she
show she was “prevented” from timely filing her reconsideration request. See
Meister v. Office of Personnel Management , 52 M.S.P.R. 508, 515-16 (1992)
(finding that the substantively identical regulatory provision under the Civil
Service Retirement System required the appellant to show that her medical
condition “prevented” her from timely filing her reconsideration request, rather
than merely demonstrate that her medical condition “interfered” with her ability
to do so). Accordingly, we deny the petition for review.
4
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 any
6
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
7
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. | Lee_Ann_M_CH-0845-18-0582-I-1_Final_Order.pdf | 2024-01-31 | ANN M. LEE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-18-0582-I-1, January 31, 2024 | CH-0845-18-0582-I-1 | NP |
2,473 | https://www.mspb.gov/decisions/nonprecedential/Jucha_Lisa_SF-0752-17-0720-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA JUCHA,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-17-0720-I-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa Jucha , Torrance, California, pro se.
Brandon M. Barros , China Lake, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
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).
The appellant asserts new evidence for the first time on review. Petition
for Review File, Tab 1 at 4, 11-12. For instance, she acknowledges that she “did
not mention this in [her] filings, [but] each and every medical/psychological
person [she] consulted urged [her] to quit.” Id. at 4. She also states that she
“recently learned” that several other employees had turned in tracking reports late
and “badmouthed” coworkers but that she was the only employee “written up or
threatened with suspension.” Id. at 12. The appellant further states that she
learned that the agency had decided not to backfill her Sign Language Interpreter
(SLI) position and another SLI position, which she asserts demonstrates the
fraudulent nature of the position. Id. The appellant repeats her arguments that
the agency fraudulently “lured” her into an interpreter position that was primarily
an Equal Employment Opportunity (EEO) Specialist position, failed to provide
her adequate EEO Specialist training, and subjected her to a hostile work
environment. Id. at 4-5, 10. Finally, she argues that the administrative judge
abused his discretion in “minimizing [her] plight” and discrediting her written
testimony. Id. at 7, 10-11.
Under 5 C.F.R. § 1201.115(d), the Board will not generally 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 due2
diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).
Moreover, the Board will generally not grant a petition for review based on
“new” evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).
The appellant offers no explanation for why she did not include in her
submissions below information from the medical or psychological professionals
with whom she consulted, and she does not include any documentary evidence to
support her assertion that other individuals in her office who engaged in similar
behavior were not disciplined or that the agency did not backfill any SLI
positions. Even if we determined that the appellant’s evidence on review was
“new,” it does not warrant a different outcome. We affirm the administrative
judge’s finding that the appellant failed to prove by preponderant evidence2 that
her resignation was involuntary. Initial Appeal File (IAF), Tab 18, Initial
Decision at 5-19.
In cases wherein intolerable working conditions are alleged, both the courts
and the Board will find an action involuntary only if the employee demonstrates
that the agency engaged in a course of action that made working conditions so
difficult or unpleasant that a reasonable person in that employee’s position would
have felt compelled to resign. Markon v. Department of State , 71 M.S.P.R. 574,
577-78 (1996). When an appellant raises allegations of discrimination and
reprisal in connection with an involuntariness claim, such evidence may be
considered only in terms of the standard for voluntariness in a particular
situation. Id. at 578. The appellant’s evidence in support of her claims of
disparate treatment and reprisal does not warrant the conclusion that her
resignation was involuntary because the agency was investigating her EEO
complaint and she could have contested any agency actions or final decisions.
2 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 3
See, e.g., Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605, ¶ 17
(2009) (stating that the appellant had the option to stand and fight the alleged
discrimination, harassment, and retaliation rather than resign).
The appellant’s remaining arguments on review largely constitute mere
disagreement with the administrative judge’s findings and credibility
determinations. For example, her assertion regarding the allegedly fraudulent
nature of her SLI position is contradicted by the vacancy announcement and
position description, both of which explain that the position includes SLI duties
and EEO duties. IAF, Tab 7 at 47-49, Tab 14 at 68. Moreover, for the reasons
described in the initial decision, the appellant’s description of her work
environment does not evince the type of intolerable working conditions that
deprive an individual of a meaningful choice and would compel a reasonable
person to resign. See Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 32
(2000) (explaining that dissatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions are generally not
so intolerable as to compel a reasonable person to resign). Finally, the appellant
has not persuaded us that the administrative judge’s credibility findings were in
error. See Broughton v. Department of Health and Human Services , 33 M.S.P.R.
357, 359 (1987) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility).
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
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
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 at5
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,6
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,7
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.
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 | Jucha_Lisa_SF-0752-17-0720-I-1__Final_Order.pdf | 2024-01-31 | LISA JUCHA v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-17-0720-I-1, January 31, 2024 | SF-0752-17-0720-I-1 | NP |
2,474 | https://www.mspb.gov/decisions/nonprecedential/Green_Bradley_E_NY-0752-18-0034-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRADLEY E. GREEN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0752-18-0034-I-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nolen Dean Boyer , Esquire, New Hyde Park, New York, for the appellant.
Rachel Demarest Gold , Esquire, Brooklyn, New York, for the appellant.
Ingrid Merritt , Windsor, Connecticut, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed without a showing of good cause for the
delay. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant does not challenge the administrative
judge’s finding that the appeal was untimely filed. Instead, he argues that the
administrative judge erred when she concluded that his own negligence caused
him to miss the filing deadline and disregarded his argument that he was
experiencing technical difficulties on the Board’s electronic filing system
(e-Appeal Online) during the filing period. Petition for Review (PFR) File, Tab 1
at 1-6. He asserts that a malfunction on e-Appeal Online prevented him from
completing the appeal and that the site was not operational on or around
November 24, 2017. Id. at 3-5, 7-8. The Board’s records show that, after he
initiated the appeal on October 20, 2017, the appellant did not access his account
until November 23, 2017—the only time he did so within the filing period. No
outage or malfunction occurred on e-Appeal Online on or around November 24,
2017, as the appellant claimed. Our technical staff has advised that e-Appeal
Online was operational throughout the filing period, except for 2 -hour windows
on November 4 and November 7, 2017. The brief down -time on November 4 and
November 7 did not adversely affect the appellant or his counsel because they did
not attempt to access e -Appeal Online on those days.2
The appellant further argues that the administrative judge incorrectly
analyzed the criteria that the Board considers in determining whether he has
shown good cause to excuse his untimely filing. PFR File, Tab 1 at 7-11; see
Hairston v. Department of Defense , 119 M.S.P.R. 162, ¶ 17 (2013), modified on
other grounds by Buelna v. Department of Homeland Security , 121 M.S.P.R. 262,
¶ 18 n.7 (2014); Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184
(1980). He opines that he has exercised due diligence or ordinary prudence
through his multiple attempts to submit the appeal, in spite of technical
difficulties, on or around the filing deadline. PFR File, Tab 1 at 2-11. We find
that the appellant has not made the requisite showing under the particular
circumstances of the case. See Alonzo, 4 M.S.P.R. at 184. As discussed above,
the Board’s records show that e-Appeal Online was operational during the single
occasion the appellant attempted to submit his appeal within the filing period.
Even if we credit his assertion that technical difficulties on e -Appeal Online
prevented him from timely submitting his appeal, the Board’s records show, and
the appellant does not dispute, that he failed to request technical assistance to
resolve any issues or pursue alternate means to submit his appeal (e.g., fax or
mail) before the filing deadline on November 27, 2017. Initial Appeal File,
Tab 10 at 5.
Regarding any assertions he made below that were addressed by the
administrative judge, we agree that the appellant did not demonstrate good cause
to excuse the untimely filing of his appeal. We decline to consider any argument
or evidence that he submits on the first time for review because he has failed to
show that it was unavailable, despite his due diligence, when the record closed.
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).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 | Green_Bradley_E_NY-0752-18-0034-I-1__Final_Order.pdf | 2024-01-31 | BRADLEY E. GREEN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-18-0034-I-1, January 31, 2024 | NY-0752-18-0034-I-1 | NP |
2,475 | https://www.mspb.gov/decisions/nonprecedential/Hanson_Erik_SF-752S-19-0104-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIK HANSON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-752S-19-0104-I-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Erik Hanson , Bremerton, Washington, pro se.
Demaris Johanek , Silverdale, Washington, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of a 3-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 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 review, the appellant challenges the merits of the agency action;
however, he does not dispute that the subject action is his 3 -day suspension.
Petition for Review (PFR) File, Tab 1 at 4-6, 31 -32. Thus, we discern no basis to
disrupt the administrative judge’s reasoned finding that the appellant failed to
make a nonfrivolous allegation that the Board has 5 U.S.C. chapter 75 jurisdiction
over his appeal. Initial Appeal File, Tab 5, Initial Decision (ID) at 6; see Lefavor
v. Department of the Navy , 115 M.S.P.R. 120, ¶ 5 (2010) (explaining that a
suspension of 14 days or fewer is not an appealable action within the Board’s
chapter 75 jurisdiction).
The appellant also contends on review that the matter constitutes an
individual right of action (IRA) appeal and provides, among other things, an
Office of Workers’ Compensation Programs (OWCP) claim form regarding an
on-the-job injury he suffered. PFR File, Tab 1 at 4-5, 33. However, filing a
claim with OWCP does not constitute a protected activity for purposes of an IRA
appeal. Von Kelsch v. Department of Labor , 59 M.S.P.R. 503, 508-09 (1993)
(explaining that an OWCP claim does not constitute the exercise of any appeal,
complaint, or grievance right as defined in 5 U.S.C. § 2302(b)(9)(A)),
overruled on other grounds by Thomas v. Department of the Treasury ,
77 M.S.P.R. 224, 236 n.9 (1998), overruled by Ganski v. Department of the2
Interior, 86 M.S.P.R. 32 (2000).2 Thus, we discern no basis to disrupt the
administrative judge’s reasoned finding that the appellant failed to evince
allegations that his suspension involved actionable reprisal. ID at 5-6.
Moreover, the appellant has not even alleged that he exhausted his administrative
remedies with the Office of Special Counsel, which is a prerequisite to an IRA
appeal concerning a claim of reprisal for whistleblowing or other protected
activity. See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016); 5 C.F.R. part 1209.
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
2 Nothing in the language of the Whistleblower Protection Enhancement Act of 2012,
Pub. L. No. 112-199, 126 Stat. 1465, effective December 27, 2012, alters the Board’s
analysis of this statutory language. Linder v. Department of Justice , 122 M.S.P.R. 14,
¶ 10 (2014).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and 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.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Hanson_Erik_SF-752S-19-0104-I-1_Final_Order.pdf | 2024-01-31 | ERIK HANSON v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-752S-19-0104-I-1, January 31, 2024 | SF-752S-19-0104-I-1 | NP |
2,476 | https://www.mspb.gov/decisions/nonprecedential/Dykes_Andrew_AT-0731-18-0219-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW DYKES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0731-18-0219-I-1
DATE: January 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Dykes , Tampa, Florida, pro se.
Barbara S. Patch , Esquire, St. Petersburg, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his nonselection appeal for lack of jurisdiction. On petition for review,
the appellant argues that the Board has jurisdiction over the agency’s decision to
find him unsuitable for Federal employment as a Medical Supply Technician and
that the agency made him an offer of employment that he accepted. 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.2 Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly dismissed this appeal for lack of
jurisdiction because the record evidence does not reflect that the agency took an
appealable suitability action under 5 C.F.R. § 731.203(a). Moreover, even
assuming that the agency made an offer of a position that it later rescinded based
on suitability criteria, the appellant’s ultimate nonselection still does not
constitute an appealable suitability action. See Sapla v. Department of the Navy ,
118 M.S.P.R. 551, ¶ 12 (2012).
2 The appellant includes a copy of his resume and a signed July 24, 2017 Optional Form
306, Declaration for Federal Employment , with his petition for review. Petition for
Review File, Tab 1 at 3-10. These documents provide no basis to disturb the initial
decision because the appellant has not shown that they were unavailable before the
record closed despite his due diligence or that they are of sufficient weight to warrant a
different outcome. See Turner v. U.S. Postal Service , 123 M.S.P.R. 640, ¶ 13 n.2
(2016), aff’d per curium, 681 F. App’x 934 (Fed. Cir. 2017); 5 C.F.R. § 1201.115(d).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 | Dykes_Andrew_AT-0731-18-0219-I-1__Final_Order.pdf | 2024-01-31 | ANDREW DYKES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0731-18-0219-I-1, January 31, 2024 | AT-0731-18-0219-I-1 | NP |
2,477 | https://www.mspb.gov/decisions/nonprecedential/Stancil_Beverly_J_DC-0752-17-0153-I-1 Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BEVERLY JACKSON STANCIL,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DC-0752-17-0153-I-1
DATE: January 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Beverly Jackson Stancil , Cheverly, Maryland, pro se.
Pegah Yazdy Gorman and Jennifer Koduru , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s 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
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the administrative judge’s analysis of the
whistleblower reprisal claim under 5 U.S.C. § 2302(b)(8) and to consider the
affirmative defense of reprisal for disclosing information to the agency’s Office
of Inspector General (OIG) under 5 U.S.C. § 2302(b)(9)(C), we AFFIRM the
initial decision.
BACKGROUND
Effective November 21, 2016, the agency removed the appellant from her
Program Assistant (Special Assistant) position in the agency’s Office of
Partnerships, Youth and Community Engagement, National Capital Region,
National Park Service, based on a charge of failure to follow her supervisor’s
instructions. Initial Appeal File (IAF), Tab 2 at 2, Tab 8 at 111-18. The agency
based its charge on three specifications alleging that the appellant failed to attend
a meeting scheduled for her return from a 14-day suspension on June 20, 2016, a
standing biweekly update meeting on June 21, 2016, and a webinar meeting on
June 30, 2016, as instructed by her supervisor. IAF, Tab 8 at 112-13. In deciding
to remove the appellant, the agency considered, among other things, her prior
discipline, consisting of the following: a letter of reprimand issued on
November 20, 2015, for four instances of failing to follow her supervisor’s
directions to attend meetings; and a 14-day suspension from June 5–18, 2016, for2
five instances of failing to follow her supervisor’s instructions to attend meetings.
IAF, Tab 7 at 21-22, 37-42, Tab 8 at 111, 114. The appellant’s supervisor was
the proposing official for the 14-day suspension and removal, and the Regional
Director was the deciding official for the suspension and removal. IAF, Tab 7
at 28, 37, 49, Tab 8 at 111. The appellant appealed her removal to the Board, and
she requested a hearing. IAF, Tab 1. She raised the affirmative defenses of a
violation of her due process rights and reprisal for whistleblowing and for
disclosing information to OIG. IAF, Tab 1 at 5, Tab 14 at 3-7.
After holding a hearing, the administrative judge issued an initial decision
affirming the removal action. IAF, Tab 21, Initial Decision (ID) at 1-2, 15.2
Specifically, she found that the agency proved all three specifications of its
charge. ID at 2-7. She further found that the appellant failed to prove her
affirmative defenses of a violation of her due process rights or whistleblower
reprisal under 5 U.S.C. § 2302(b)(8). ID at 7-12. In addition, the administrative
judge found that the agency proved nexus and that the agency did not abuse its
discretion in its penalty selection. ID at 12-15.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge by preponderant evidence.
Generally, in an adverse action appeal, the agency must prove its charge by
a preponderance of the evidence.3 5 U.S.C. § 7701(c)(1)(B). To prove a charge
of failure to follow supervisory instructions, an agency must establish that an
employee was given proper instructions and that she failed to follow them,
without regard to whether the failure was intentional or unintentional. Hamilton
2 We assume that the administrative judge was referring to the agency’s removal action
when she found that the agency’s demotion action must be affirmed. ID at 15.
3 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).3
v. U.S. Postal Service , 71 M.S.P.R. 547, 555-56 (1996). Here, the record contains
strong evidence showing that the appellant was given clear instructions from her
supervisor to attend the meetings and the webinar in question. IAF, Tab 7 at 65,
81-88, 116-22. We find that the appellant’s immediate supervisor acted properly
by directing the appellant to attend the meetings and the webinar concerning her
work plan and assignments. IAF, Tab 7 at 65, 81 -88, 119; Hearing Transcript
(HT) at 11, 19-24 (testimony of the supervisor). The administrative judge found
that the supervisor credibly testified that the purpose of the individual biweekly
update meetings was to provide employees with guidance and to track their
projects, and that she sent the appellant an email scheduling a meeting to discuss
her projects upon her return from serving her suspension. ID at 4, 6; HT at 11,
19-21 (testimony of the supervisor). To the extent the appellant disputes the
administrative judge’s demeanor-based credibility findings, we find that she has
failed to present a sufficiently sound reason to disturb them. PFR File, Tab 1
at 11; see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(finding that the Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing, and that the Board may overturn
such determinations only when it has “sufficiently sound” reasons for doing so) .
Moreover, it is undisputed that the appellant failed to follow her supervisor’s
instructions to attend the meetings and the webinar.
In her petition for review, the appellant argues that she did not attend the
meetings in question because of her supervisor’s creating a hostile work
environment, harassing tactics, and escalating rage, and because it was the
agency’s policy to report harassment to the Regional Director, who was the
deciding official in this case. PFR File, Tab 1 at 7-8. We find that these
arguments are unavailing. Employees do not have an unfettered right to disregard
supervisory instructions. Howarth v. U.S. Postal Service , 77 M.S.P.R. 1, 7
(1997). Rather, an employee must first comply with an order and then, if she4
disagrees with the order, register her complaint or grievance later, except in
certain limited circumstances, such as when obedience would cause her
irreparable harm. Larson v. Department of the Army , 91 M.S.P.R. 511, ¶ 21
(2002). An employee’s subjective and unsupported apprehension of danger does
not justify her refusal to perform her duties. Id. Here, there is no evidence to
suggest that attending the scheduled meetings or webinar would have caused the
appellant irreparable harm. Thus, we find no reason to disturb the administrative
judge’s finding that the agency proved all three specifications of its charge by
preponderant evidence.4 ID at 7.
The appellant argues that the agency failed to produce pertinent evidence in
this appeal. PFR File, Tab 1 at 2-3, 5, 7, 9-11. Because the appellant did not file
a motion to compel, she is precluded from raising this discovery issue for the first
time on review, and we deny her request for the Board to direct the agency to
produce additional evidence. Id. at 2-3, 5, 10; see Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir.
2006). Although the appellant asserts that the administrative judge failed to
provide discovery instructions, PFR File, Tab 1 at 2, the record reflects
otherwise, IAF, Tab 3 at 3-4. Moreover, we cannot investigate the appellant’s
claims of harassment and a hostile work environment, as she requests on review,
because the Board lacks investigative authority. PFR File, Tab 1 at 4; see
5 U.S.C. § 1204.
4 At the time that the appellant filed this appeal, 5 U.S.C. § 2302(b)(9)(D) made it a
prohibited personnel practice to take an action against an employee for “refusing to
obey an order that would require the individual to violate a law.” Our reviewing court
considered this provision and held that “law” only included statutes, and not rules and
regulations. See Rainey v. Merit Systems Protection Board , 824 F.3d 1359, 1364-65
(Fed. Cir. 2016). However, on June 14, 2017, the President signed the Follow the Rules
Act into law. Pub. L. No. 115-40, 131 Stat. 861 (2017). The Act amends
section 2302(b)(9)(D) to provide whistleblower protection for individuals who refuse to
obey an order that would require the violation of a law, rule, or regulation.
Nevertheless, the Board has determined that this expansion does not apply retroactively
to cases pending at the time the Act was enacted. Fisher v. Department of the Interior ,
2023 MSPB 11, ¶ 19.5
The appellant further alleges that the administrative judge improperly
denied her requested witnesses. PFR File, Tab 1 at 3-4. An administrative judge
has wide discretion under 5 C.F.R. § 1201.41(b)(8), (10), to exclude witnesses
when it has not been shown that their testimony would be relevant, material, and
nonrepetitious. Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985).
Here, the administrative judge disallowed the appellant’s requested witnesses in
the Order and Summary of Telephonic Prehearing Conference and informed her
that she may object to the rulings in the summary on the morning of the hearing.
IAF, Tab 18 at 4-6. However, the appellant did not object to the administrative
judge’s rulings on witnesses at the hearing. See Tarpley v. U.S. Postal Service ,
37 M.S.P.R. 579, 581 (1988) (finding that an appellant’s failure to timely object
to rulings on witnesses precluded him from doing so on petition for review).
Nevertheless, we find that the appellant’s description of the expected testimony
of the disallowed witnesses fails to show that the administrative judge abused her
discretion. IAF, Tab 14 at 8-12. In particular, the appellant has not shown that
the disallowed witnesses would have provided relevant, material, and
nonrepetitious testimony, considering that she had the opportunity to testify and
to question her supervisor and the deciding official during the hearing.
In addition, the appellant contends that the administrative judge did not
allow her to fully answer questions during the status and prehearing conferences
and the hearing. PFR File, Tab 1 at 12. We have reviewed the hearing transcript
and find that the limits placed on the appellant’s testimony were within the
administrative judge’s broad discretion to regulate the course of the hearing under
5 C.F.R. § 1201.41(b)(3), (6). See Miller v. Department of Defense , 85 M.S.P.R.
310, ¶ 8 (2000) (finding that an administrative judge has wide discretion to
control the proceedings, including authority to exclude irrelevant or immaterial
testimony). Further, the appellant has failed to explain how her substantive rights
were harmed by any limits imposed by the administrative judge during the status
or prehearing conferences. See Panter v. Department of the Air Force ,6
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 reversing an initial
decision).
We modify the initial decision to supplement the administrative judge’s analysis
of the appellant’s affirmative defense of whistleblower reprisal under 5 U.S.C.
§ 2302(b)(8).
The appellant’s allegations of whistleblower reprisal must be analyzed
under the burden-shifting standard set forth in 5 U.S.C. § 1221(e).5 Alarid v.
Department of the Army , 122 M.S.P.R. 600, ¶ 12 (2015); 5 C.F.R. § 1209.2(e).
Under this standard, the appellant must prove 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). 5 U.S.C. § 1221(e)(1); Alarid, 122 M.S.P.R. 600, ¶¶ 12-13;
5 C.F.R. § 1209.2(e)(1). If the appellant makes such a showing, 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 such disclosure or activity.
5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600, ¶ 14; 5 C.F.R. § 1209.2(e)(2).
We begin by considering whether the appellant engaged in protected
whistleblowing by making a disclosure of information protected by 5 U.S.C.
§ 2302(b)(8). A protected disclosure described in section 2302(b)(8) generally
means a disclosure of information that an appellant reasonably believes evidences
(1) any violation of any law, rule, or regulation; (2) gross mismanagement; (3) a
gross waste of funds; (4) an abuse of authority; or (5) a substantial and specific
danger to public health or safety. Shannon v. Department of Veterans Affairs ,
5 We have reviewed the relevant legislation enacted during the pendency of this appeal.
To the extent that we cite herein to case law applying versions of law subsequently
amended by the Whistleblower Protection Enhancement Act of 2012 or other
legislation, we find that the statutory amendments do not affect the material holdings
relied upon in this decision and do not affect the outcome of the appeal.7
121 M.S.P.R. 221, ¶ 22 (2014). An appellant is not required to prove the alleged
misconduct actually occurred. Id., ¶ 28. Rather, an appellant need only prove
that a disinterested observer with knowledge of the essential facts known to and
readily ascertainable by her could reasonably conclude that the disclosed actions
of the Government evidence one of the categories of wrongdoing identified in
5 U.S.C. § 2302(b)(8). Shannon, 121 M.S.P.R. 221, ¶¶ 22, 28.
Here, the administrative judge did not discuss the appellant’s alleged
disclosures that she described in her prehearing submission. IAF, Tab 14 at 3-7;
ID at 7-11. We modify the initial decision as follows to supplement the
administrative judge’s analysis of the whistleblower reprisal claim. The appellant
alleged that she was under abusive supervision for the 11 years preceding her
removal. IAF, Tab 14 at 3. Most of the appellant’s claims of harassment and a
hostile work environment concern her supervisor, who started supervising the
appellant when she was reassigned from a different office in January 2012. IAF,
Tab 14 at 4-7, Tab 15 at 25; HT at 7 (testimony of the supervisor). In her
pleadings before the administrative judge, the appellant claimed retaliation for
reporting harassment and a hostile work environment to the OIG in August 2015
and February 2016, and to agency officials on several occasions.6 IAF, Tab 1
at 5, Tab 14 at 3-7. In particular, the appellant asserted that she made the
following disclosures: she began reporting harassment and a hostile work
environment in 2006; she requested an independent investigation of her
absent-without-leave status, leave restrictions, and reassignment from the Special
Assistant position to the Program Assistant position;7 in August 2015, she told the
6 The appellant does not allege that her claims of harassment or a hostile work
environment are based on a protected status under Title VII of the Civil Rights Act of
1964, as amended, or other basis described in 5 U.S.C. § 2302(b)(1).
7 The appellant alleged that she was “illegally demoted” when she was reassigned to a
different office in January 2012 and when her position title was changed from “Special
Assistant” to “Program Assistant.” IAF, Tab 14 at 3. The appellant does not allege,
and the record does not reflect, that these actions resulted in a reduction in grade or pay.
PFR File, Tab 1 at 5-6; IAF, Tab 2 at 2, Tab 14 at 3, Tab 15 at 13, 25. Thus, they do
not constitute independently appealable demotions under chapter 75. The appellant’s8
deciding official that she had filed an OIG complaint; in September or October
2015, she told her supervisor that they needed to inform the deciding official of a
conflict that they had had during a meeting; she asked her supervisor to schedule
meetings in the presence of the deciding official and told her that they needed to
bring their conflicts to higher -level leadership; on February 12, 2016, during her
oral reply to the proposed 14 -day suspension, she disclosed the continued
harassment and hostile work environment, her efforts to comply with agency
policy requiring employees to report harassment to the deciding official, as the
Regional Director, and her insistence to her supervisor that they had to involve
the deciding official in their conflicts; she began forwarding all emails sent from
her supervisor to the deciding official and to other agency officials; in May 2016,
she met with an equal employment opportunity (EEO) official regarding her
complaint of a hostile work environment; in September 2016, she emailed the
deciding official and other agency officials about receiving an envelope from her
supervisor (containing the notice of proposed removal), and she requested an
independent investigation of all actions taken against her since January 1, 2016;
on September 29, 2016, during her oral reply to the proposed removal, she
reiterated her claim of a hostile work environment and asserted that she was being
punished for her disciplinary actions and that she did not receive guidance
regarding her harassment and hostile work environment claims; and she emailed
the deciding official, her supervisor, and other agency officials about scheduling
a meeting with the Director of the National Park Service. IAF, Tab 14 at 3-6.
The appellant did not specify, nor does the record reveal, what she
disclosed to OIG beyond a claim of a hostile work environment or harassment.
However, the record shows that, during an agency investigation, the appellant
alleged that her supervisor took the following actions against her: subjected her
dispute on review regarding her position title does not concern a material fact. PFR
File, Tab 1 at 5-6. Thus, any error by the administrative judge in finding the appellant’s
position title undisputed is not harmful to her substantive rights. ID at 2; see Panter,
22 M.S.P.R. at 282.9
to a hostile work environment and bullying; screamed and hollered at her;
invaded her personal space; claimed that she made coworkers uncomfortable;
claimed that she made too much noise; accused her of incompetence; demeaned
her professionalism; assigned her piecemealed work; changed her work
assignments; told her that she was the boss; and created double standards.8 IAF,
Tab 8 at 46-47. The appellant further alleged during the investigation that the
agency changed her position from Special Assistant to Program Assistant, she felt
that she was “mal-assigned,” and she wanted to be reassigned out of her office.
Id. at 47. The agency concluded in its December 2013 investigative report that
only her claims regarding noise complaints, piecemeal work, and her desire for a
reassignment were substantiated. Id. at 48-51. The record further shows that,
after receiving a memorandum in March 2015 from her supervisor requiring
medical documentation for sick leave, the appellant requested an independent
investigation of the memorandum, her Program Assistant position, and her
applications for various vacancies. Id. at 34-42. In an email dated May 26, 2016,
the deciding official informed the appellant that he had asked an EEO official to
evaluate her claim of a hostile workplace. IAF, Tab 7 at 89. After meeting with
the EEO official, the appellant forwarded to him emails sent by her supervisor
concerning scheduled meetings. Id. at 90-105. In an email dated September 8,
2016, the appellant again requested an independent investigation of all actions
taken against her since January 1, 2016. IAF, Tab 8 at 19.
The appellant reasserts on review that she made protected disclosures
regarding harassment and a hostile work environment. PFR File, Tab 1 at 10.
For the following reasons, we agree with the administrative judge’s finding that
the appellant failed to prove that she made a protected disclosure. ID at 10-11.
Based on our review of the record, we find that the appellant has failed to meet
8 The former Regional Director called for this investigation. IAF, Tab 8 at 43. To the
extent the administrative judge erroneously found that the deciding official asked for
this investigation, we find that any such error has not harmed the appellant’s
substantive rights. ID at 10; see Panter, 22 M.S.P.R. at 282.10
her burden of proving that a disinterested observer could reasonably conclude that
the information she disclosed evinced wrongdoing described in 5 U.S.C.
§ 2302(b)(8). Taken as a whole, the appellant’s alleged disclosures of harassment
and a hostile work environment are fundamentally her own personal complaints
and disagreements about how she was treated by the agency, and they are not
protected whistleblowing. See Lachance v. White , 174 F.3d 1378, 1380 -81 (Fed.
Cir. 1999) (observing that an employee’s purely subjective perspective is not
sufficient to prove that a disclosure is protected); see also Carr v. Department of
Defense, 61 M.S.P.R. 172, 180-81 (1994) (finding that the appellant’s letter,
which alleged that the agency had subjected him to “unwarranted stress” and
“unjustifiable harassment,” did not constitute a protected disclosure).
In particular, an abuse of authority occurs when there is an arbitrary or
capricious exercise of power by a Federal official or employee that adversely
affects the rights of any person or results in personal gain or advantage to herself
or to other preferred persons. Herman v. Department of Justice , 115 M.S.P.R.
386, ¶ 11 (2011). Although we acknowledge that harassing or intimidating other
employees may constitute an abuse of authority in certain situations, such as
when a supervisor uses her influence to denigrate other staff members in an
abusive manner and to threaten the careers of staff members with whom she
disagrees, id., we find here that a disinterested observer could not reasonably
conclude that the described events rose to the level of an abuse of authority, see
Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363, ¶ 24 (2005) (finding
that the appellant’s allegations that agency officials were arbitrary and capricious,
discriminatory, conspiratorial, and manipulative did not constitute nonfrivolous
allegations of an abuse of authority). Further, we find that the appellant has not
proven that a disinterested observer could reasonably believe that the alleged
agency actions constituted gross mismanagement, which is a management action
or inaction that creates a substantial risk of significant adverse impact on the
agency’s ability to accomplish its mission. Embree v. Department of the11
Treasury, 70 M.S.P.R. 79, 85 (1996) (observing that gross mismanagement does
not include management decisions that are merely debatable or action or inaction
constituting simple negligence or wrongdoing). In addition, we find that the
appellant has not shown that a disinterested observer could reasonably conclude
that the information disclosed evinced any violation of any law, rule, or
regulation, including any agency policy on harassment, a hostile work
environment, or whistleblowing. She has not provided any evidence to support
her claim that there was a policy requiring all harassment accusations to be
reported to the deciding official, as the Regional Director. IAF, Tab 14 at 4, 6.
We modify the initial decision to consider the appellant’s affirmative defense of
reprisal for disclosing information to OIG under 5 U.S.C. § 2302(b)(9)(C).
The administrative judge failed to analyze the appellant’s claim of
retaliation for reporting wrongdoing to OIG as an affirmative defense of reprisal
for engaging in protected activity under 5 U.S.C. § 2302(b)(9)(C). ID at 7-11;
IAF, Tab 1 at 5, Tab 14 at 3. We modify the initial decision, as follows, to
consider such an affirmative defense. An affirmative defense of reprisal for
engaging in protected activity under 5 U.S.C. § 2302(b)(9)(C) must be analyzed
under the burden-shifting standard set forth in 5 U.S.C. § 1221(e). See Alarid,
122 M.S.P.R. 600, ¶¶ 12-15 (applying this standard to an affirmative defense of
reprisal under 5 U.S.C. § 2302(b)(9)(B)); see also Elder v. Department of the Air
Force, 124 M.S.P.R. 12, ¶¶ 15, 39 (2016) (applying this standard to an
affirmative defense of reprisal under 5 U.S.C. § 2302(b)(9)(A)(i)). Under this
standard, an appellant first must prove by preponderant evidence that she engaged
in protected activity that was a contributing factor in the personnel action at
issue. Elder, 124 M.S.P.R. 12, ¶ 39. If she does so, then the burden of
persuasion shifts to the agency to prove by clear and convincing evidence that it
would have taken the same personnel action absent her protected activity. Id.
Under the law in effect at the time of the appellant’s removal, an employee
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when she12
cooperated with or disclosed information to an agency’s OIG or the Office of
Special Counsel (OSC), in accordance with applicable provisions of law .9 Under
the broadly worded provision of section 2302(b)(9)(C), such disclosures of
information are protected regardless of their content, as long as they are made in
accordance with applicable provisions of law. Fisher v. Department of the
Interior, 2023 MSPB 11, ¶ 8. Here, it is undisputed that the appellant filed an
OIG complaint before she was removed. HT at 26 (testimony of the supervisor),
103-04 (testimony of the deciding official), 167 (testimony of the appellant).
Further, the deciding official testified that the appellant had told him throughout
the process of effecting her 14-day suspension and removal that she would be
filing an OIG complaint. HT at 103-04, 110. Therefore, we find that the
appellant has proven a prima facie case of reprisal for engaging in protected
activity under 5 U.S.C. § 2302(b)(9)(C). See Alarid, 122 M.S.P.R. 600, ¶ 13
(explaining that, under the knowledge/timing test, an appellant can prove that her
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).
Next, the burden shifts to the agency to prove by clear and convincing
evidence10 that it would have removed the appellant in the absence of her
protected activity of filing an OIG complaint. In determining whether the agency
has met this burden, the Board generally will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
9 Section 1097(c)(1) of the National Defense Authorization Act for Fiscal Year 2018,
Pub. L. No. 115-91, 131 Stat. 1283 (2017) amended 5 U.S.C. § 2302(b)(9)(C) to further
protect disclosures “to any other component responsible for internal investigation or
review.” This additional provision appears immaterial to this appeal. In any event, this
amendment does not apply retroactively and, thus, does not apply to this appeal.
Edwards v. Department of Labor , 2022 M.S.P.R. 9, ¶¶ 29-33.
10 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established; it is
a higher standard than preponderance of the evidence. 5 C.F.R. § 1209.4(e).13
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., ¶ 14 (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; rather, the Board weighs these factors together to determine whether
the evidence is clear and convincing as a whole. Id. The Board must consider all
pertinent record evidence in making this determination, and it must not exclude or
ignore countervailing evidence by only looking at the evidence that supports the
agency’s position. Id.
Regarding the first Carr factor, we find that the strength of the agency’s
evidence in support of its removal action is strong. For the reasons discussed
above, the administrative judge correctly found that the agency proved all three
specifications of its charge. Although we have sustained the agency’s charge
based on the preponderance of the evidence standard, we find that the agency’s
evidence is also sufficient to meet the higher clear and convincing evidence
standard. Moreover, the record shows that the appellant continued to engage in
the same type of misconduct despite the agency’s use of progressive discipline to
alert her that this type of misconduct would not be tolerated. IAF, Tab 8
at 111-14.
Regarding the second Carr factor, we find that the deciding official had a
substantial motive to retaliate. Because the appellant’s supervisor testified that
she was not aware that the appellant had filed an OIG complaint until a week
before the hearing in this appeal, we find that she did not have a motive to
retaliate. HT at 26, 37, 47-48 (testimony of the supervisor). T he deciding
official testified that the appellant told him that she would be filing an OIG
complaint, but that this information did not impact his decision to remove her.
HT at 103-04 (testimony of the deciding official). Although the record does not14
reveal exactly what the appellant disclosed to OIG, she testified that she filed an
OIG complaint in August 2015, and she alleges that she reported wrongdoing to
OIG in February 2016. IAF, Tab 1 at 5, Tab 14 at 3; HT at 167 (testimony of the
appellant). Thus, we can assume that she raised the same or similar claims of
harassment and a hostile work environment that she raised before the agency in
her March 2015 request for an independent investigation and in her February
2016 oral reply to the proposed 14-day suspension. IAF, Tab 7 at 37, Tab 8
at 34-42; HT at 88-89, 110-13, 118-19 (testimony of the deciding official). We
find that the deciding official had a motive to retaliate because the appellant’s
claims suggest that he was aware and tolerant of her supervisor’s alleged
harassment and creation of a hostile work environment. Thus, the appellant’s
OIG complaint reflected on the deciding official’s capacity as a manager with
supervisory authority over her and her supervisor, which is sufficient to establish
a substantial retaliatory motive.11 Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285, ¶ 33 (2013) (finding a retaliatory motive when the appellant’s
disclosures reflected on the agency officials’ capacity as managers and
employees).
Regarding the third Carr factor, our reviewing court has held that “the
absence of any evidence relating to Carr factor three can effectively remove that
factor from the analysis.” Whitmore v. Department of Labor , 680 F.3d 1353,
1374 (2012). Here, the agency did not produce any evidence relevant to this
factor. Thus, the third Carr factor cannot weigh in favor of the agency. Smith v.
General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v.
Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018).
Nevertheless, we find that the deciding official’s substantial motive to retaliate
and the absence of any evidence concerning Carr factor three are outweighed by
the strength of the agency’s evidence in support of its removal action, especially
11 The deciding official testified that he was the appellant’s third-level supervisor. HT
at 88 (testimony of the deciding official).15
the appellant’s history of engaging in the same misconduct. We find that the
deciding official’s principal motivation for removing the appellant was her
unwillingness to change her behavior despite receiving progressive discipline. In
particular, the deciding official testified that he had hoped the use of progressive
discipline would change the appellant’s behavior and cause her to recognize that
she needed to follow her supervisor’s directions to attend meetings. HT at 96
(testimony of the deciding official). He further testified that he thought that the
appellant’s continued failure to follow her supervisor’s instructions was flagrant
and that he felt there was no other choice but to remove her. HT at 96-97
(testimony of the deciding official). Therefore, we find that the agency has
proven by clear and convincing evidence that it would have taken the same action
in the absence of the appellant’s protected activity. See Carr, 185 F.3d at 1326
(noting that the whistleblower protection statutes are not meant to protect
employees from their own misconduct).
The appellant has failed to prove her affirmative defense of a violation of her due
process rights.
The appellant reasserts her affirmative defense of a violation of her due
process rights. PFR File, Tab 1 at 7-9, 11-12. She claims that, when the agency
decided and implemented her immediate removal, she did not receive prior notice
of a final decision and she was not allowed to appeal the final decision (within
the agency) or to have union representation. Id. at 8; IAF, Tab 14 at 7. The
record shows that the agency provided the appellant with minimum due process
consisting of notice of her proposed removal and an opportunity to respond in
person and in writing to the proposed removal before the deciding official. IAF,
Tab 7 at 49-54, Tab 8 at 111-12; see Cleveland Board of Education v. Loudermill ,
470 U.S. 532, 546 (1985). Although the appellant claims that she did not receive
the notice of the proposed removal because she immediately returned a sealed
envelope containing the notice to her supervisor, we find that the agency’s
diligent and intelligent efforts of attempting to meet with her for the purpose of16
providing notice and leaving a copy of the notice on her desk in a sealed envelope
constitutes constitutionally sufficient notice.12 PFR File, Tab 1 at 6; IAF, Tab 7
at 76-77, Tab 8 at 19; HT at 158-62 (testimony of the appellant); see Pangarova
v. Department of the Army , 42 M.S.P.R. 319, 324-26 (1989) (finding constructive
delivery of the agency’s notice proposing a security clearance revocation when
the appellant refused to accept the proposal notice without a union representative
present and she was told what was in the letter and the date of her deadline for
responding); see also Givens v. U.S. Postal Service , 49 M.S.P.R. 374, 378 (1991)
(finding that an agency must make diligent and intelligent efforts—such as might
reasonably be adopted by one desirous of actually informing the employee—to
provide such minimum due process prior to the effective date of its action) .
Further, the appellant testified and admits on review that she and her union
representative met with the deciding official regarding the proposed removal and
that she provided him with written documentation. PFR File Tab 1 at 6; HT
at 163-65 (testimony of the appellant). Therefore, we discern no reason to disturb
the administrative judge’s finding that the appellant failed to prove her
affirmative defense of a violation of her due process rights. ID at 12.
Moreover, we are not persuaded by the appellant’s argument that she did
not receive due process because the agency did not produce an OIG report and
because the agency minimized the importance of the OIG investigation. PFR
File, Tab 1 at 9. As explained above, the appellant had the opportunity to
conduct discovery below and she is precluded from raising a discovery issue for
the first time on review. See Szejner, 99 M.S.P.R. 275, ¶ 5. Further, to the extent
the appellant is disputing the deciding official’s testimony that OIG did not issue
a report and chose not to investigate her complaint, the administrative judge did
12 The appellant challenges on review the administrative judge’s finding that it is
undisputed that the agency issued a notice of proposed removal to her. PFR File, Tab 1
at 6; ID at 2. Even assuming that the administrative judge mischaracterized that fact as
undisputed, we find that the appellant’s substantive rights have not been harmed
because we find that the agency met its notice obligations. See Panter, 22 M.S.P.R.
at 282.17
not abuse her discretion by sustaining an objection to such testimony because it
was speculative. PFR File, Tab 1 at 9; HT at 132 (testimony of the deciding
official).
The agency proved nexus and the reasonableness of the penalty.
The appellant does not dispute, and we find no reason to disturb, the
administrative judge’s finding that the agency established the requisite nexus. ID
at 13; see Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶ 24 (2014)
(finding that the agency proved nexus because the charge of failure to follow
instructions directly related to the efficiency of the appellant’s service).
When, as in the instant appeal, all of the agency’s charges have been
sustained, the Board will review an agency-imposed penalty only to determine if
the agency considered all the relevant Douglas factors13 and exercised
management discretion within the tolerable limits of reasonableness. Ellis v.
Department of Defense , 114 M.S.P.R. 407, ¶ 11 (2010). The Board will modify
or mitigate an agency-imposed penalty only if it finds that the agency failed to
weigh the relevant factors or the penalty clearly exceeds the bounds of
reasonableness. Id. The appellant does not dispute, and we discern no basis to
disturb, the administrative judge’s findings that the agency properly considered
the relevant factors and that the penalty of removal is within the agency’s
discretion. ID at 13-15; HT at 96-102 (testimony of the deciding official); IAF,
Tab 8 at 113-16.
The appellant argues on review that the agency improperly “stacked”
disciplinary actions against her while the OIG investigation was ongoing. PFR
File, Tab 1 at 7. It is unclear what the appellant is arguing. To the extent she is
arguing that the agency improperly considered her prior disciplinary actions in
deciding to impose her removal, we find that the agency properly relied on such
13 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the
appropriateness of an agency-imposed penalty for an employee’s misconduct.18
actions in effecting her removal. See Bolling v. Department of the Air Force ,
9 M.S.P.R. 335, 339-40 (1981) (establishing the criteria for the Board’s review of
an appellant’s past discipline on which an agency has relied in determining a
penalty). We note that the Board held in Ibarra v. Department of the Air Force ,
11 M.S.P.R. 110, 113 (1982), that an agency, by continuing to issue the same
order at various intervals, cannot thereby increase the severity of the penalty in a
case when the agency may reasonably anticipate that the order will not be obeyed.
However, we find that the instant appeal is distinguishable from Ibarra because
the agency here imposed progressive discipline for the appellant’s continued
failure to follow her supervisor’s instructions. Id. (agreeing with the appellant’s
contention that the agency failed to impose progressive discipline).
The appellant’s additional argument of adjudicatory bias does not provide a basis
for review.
Finally, the appellant asserts that the administrative judge’s judgment was
biased because it was based on the testimony of her supervisor and the deciding
official. PFR File, Tab 1 at 11. The Board will not infer bias based on an
administrative judge’s case-related rulings. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 18 (2013). We find that the appellant’s broad
allegation of bias is insufficient to rebut the presumption of the administrative
judge’s honesty and integrity. See Oliver v. Department of Transportation ,
1 M.S.P.R. 382, 386 (1980) (observing that, in making a claim of bias or
prejudice against an administrative judge, a party must overcome the presumption
of honesty and integrity that accompanies administrative adjudicators).
Accordingly, we affirm the agency’s removal action.19
NOTICE OF APPEAL RIGHTS14
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:
14 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.20
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 any21
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’s22
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.15 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.
15 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. 23
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.24 | Stancil_Beverly_J_DC-0752-17-0153-I-1 Final Order.pdf | 2024-01-30 | BEVERLY JACKSON STANCIL v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DC-0752-17-0153-I-1, January 30, 2024 | DC-0752-17-0153-I-1 | NP |
2,478 | https://www.mspb.gov/decisions/nonprecedential/Kulkarni_Sayali_DE-1221-19-0157-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAYALI KULKARNI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-19-0157-W-1
DATE: January 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
A
bhijit Kulkarni , Salt Lake City, Utah, for the appellant.
Johnston B. Walker , Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. For the reasons set forth below, we
DISMISS as settled all but one of the appellant’s claims on petition for review.
As it concerns the appellant’s remaining claim regarding the determination that
she belonged on Pay Table 1, we AFFIRM the initial decision except as expressly
MODIFIED to address the appellant’s claim that her disclosures evidenced a
substantial and specific danger to public health or safety.
BACKGROUND
During the time period relevant to this appeal, the agency employed the
appellant and her husband, Abhijit Kulkarni, as Physicians in the Compensation
and Pension (C&P) section at the Veterans Health Administration in Salt Lake
City, Utah.2 Initial Appeal File (IAF), Tab 1 at 7, Tab 11 at 53, Tab 13 at 9.
In this role, they provided medical opinions used to assess veterans’ claims for
disability benefits. IAF, Tab 9 at 34-36, Tab 13 at 4, 9; see U.S. Department of
Veterans Affairs, VA Claim Exam (C&P Exam),
https://www.va.gov/disability/va-claim-exam/ (last visited Jan. 29, 2024). After
2 The appellant’s husband also filed an IRA appeal based on many of the same claims as
the instant appeal. See Kulkarni v. Department of Veterans Affairs , MSPB Docket No.
DE-1221-19-0158-W-1.
3
receiving a February 28, 2019 closure letter from the Office of Special Counsel
(OSC), the appellant timely filed the instant IRA appeal.3 IAF, Tab 1 at 31-32.
In response to the administrative judge’s order on jurisdiction, the
appellant alleged that, in retaliation for disclosing violations of laws, rules, and
regulations, an abuse of authority, gross mismanagement, and a substantial and
specific danger to public health and safety, the agency admonished her, gave her
a “pay table demotion,” and subjected her to a hostile work environment. IAF,
Tab 7 at 10-15. In particular, the appellant identified the following disclosures:
(1) in or around November 2013, she informed the Chief of Administrative
Medicine (CoAM) that the agency is required to have a “sympathetic
pro-claimant and non -adversarial approach” in assessing veterans claims for
disability benefits and that, contrary to his stated belief that most veterans
seeking compensation for post-traumatic stress disorder (PTSD) were
malingerers, the best practices guidelines state that veterans may over-report
psychiatric symptoms because they are suffering from chronic PTSD difficulties
and comorbid affective disorders, id. at 10, 27; (2) in an April 7, 2014 email to
the CoAM, she requested that a particular doctor no longer be allowed to peer
review her work because he evidenced “gross medico-legal incompetence” and
“grossly abused the peer review process by harassing [her] and inappropriately
pressuring [her] to overturn a disability related PTSD diagnosis in a veteran,” id.
at 11, 30-33; (3) in April and May 2014, she informed the Chief of Staff that the
CoAM was incompetent, was abusing the peer review process, suffered from
narcissistic personality disorder, was “pressuring [her] to overturn a well
3 When a veteran applies for disability benefits, the agency may order a C&P
examination to gather evidence regarding service connection and the severity of the
claimed disability. See U.S. Department of Veterans Affairs, VA Claim Exam (C&P
Exam), https://www.va.gov/disability/va-claim-exam/ (last visited Jan. 29, 2024).
If one is ordered, the doctors within the C&P section review the veteran’s file, see the
veteran for an appointment, and write a report containing an assessment regarding the
veteran’s diagnosis, the severity of the diagnosis, and whether the disability is service
connected. Id. The report is then submitted to the agency claims processor to make a
decision on the veteran’s claim for benefits. Id.
4
substantiated PTSD diagnosis,” and was “grossly mismanaging the administrative
medicine service because he fails to take a sympathetic approach towards
veterans claiming disabilities,” id. at 11, 34-37; (4) in her April 2015 testimony
before a grievance examiner, she alleged that the CoAM was training providers in
the C&P section to look for “superficial inconsistencies” as evidence of
malingering in order to minimize and deny veterans benefits, that this approach
was contrary to the pro -claimant, sympathetic approach mandated by laws, rules,
and regulations, and was causing a reduction in the award of veterans benefits, an
increase in appeals, and was “extremely likely” to cause a veteran to commit an
act of violence, id. at 11, 65-75; and (5) in May 2015 emails, the appellant and
her husband informed the Acting Director that, contrary to statute and agency
best practices, the CoAM discouraged doctors from diagnosing PTSD in most
cases and found fault in the appellant’s husband’s clinical cases by “falsifying
records or violating VA statutes governing Veterans’ disability benefits,” and
they further identified a number of PTSD clinical team examiners and C&P
examiners who improperly did not diagnose a veteran with PTSD or attempted to
overturn prior PTSD diagnoses, id. at 11, 48-53. The appellant also alleged that
the agency perceived her as a whistleblower based on her husband’s
whistleblowing, which similarly pertained to the C&P section’s failure to
properly evaluate veterans’ disabilities in connection with their claims for
benefits and the CoAM’s incompetence, bias against veterans claiming disability
benefits for PTSD, and narcissistic personality disorder. Id. at 10-13.
Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction on the ground that the appellant failed to
nonfrivolously allege that she made a protected disclosure. IAF, Tab 22, Initial
Decision (ID). The appellant has filed a petition for review of the initial
5
decision, and the agency has responded. Petition for Review (PFR) File, Tabs 1,
3.4
ANALYSIS
During the pendency of the petition for review, the parties submitted a
document entitled “SETTLEMENT AGREEMENT” signed and dated by the
appellant on May 7, 2020, and by the agency on May 8, 2020. PFR File, Tab 4.
The document provides, among other things, that the instant appeal will be
dismissed as withdrawn, except for “specific claims related to the determination
that [the appellant] belongs on Pay Table 1.” Id. at 4-5.
Before 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). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Massey v.
Office of Personnel Management , 91 M.S.P.R. 289, ¶ 4 (2002), overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforcement by the Board. PFR File, Tab 4 at 6. As the parties do not
4 The appellant has submitted with her petition for review a number of exhibits
regarding PTSD and military sexual trauma, news articles about suicide and acts of
violence by veterans, printouts of regulations, and copies of emails from 2014 through
2016. PFR File, Tab 1 at 33-67. The appellant has not alleged or shown that these
documents were unavailable below despite her due diligence, and we therefore do not
consider them for the first time on review. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980).
6
intend for the Board to enforce the settlement agreement, we do not address the
additional considerations regarding enforcement and do not enter the settlement
agreement into the record for enforcement by the Board.
Accordingly, we find that dismissing all claims except those relating to Pay
Table 1 “with prejudice to refiling” (i.e., the parties normally may not refile this
appeal) is appropriate under these circumstances.
We turn now to the appellant’s remaining claim. The Board has
jurisdiction over an IRA appeal if the appellant has exhausted her administrative
remedies before OSC and makes nonfrivolous allegations of the following:
(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 protected disclosure or activity was a contributing factor in the
agency’s decision to take or fail to take, or threaten to take or fail to take, a
personnel action as defined by 5 U.S.C. § 2302(a).5 Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1221(e)(1), 2302(b)(8).6
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 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 any law, rule, or regulation, gross
5 In the initial decision, the administrative judge found, and we agree, that the appellant
exhausted the claims raised in this appeal before OSC. ID at 2-3; IAF, Tab 1 at 31-32,
Tabs 14-18.
6 We have reviewed the relevant legislation amending the whistleblower protection
statutory scheme that was enacted during the pendency of this appeal and have
concluded that it does not affect the outcome of the appeal, nor does it affect the
relevant holdings of the case law cited in this Final Order.
7
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id.; see 5 U.S.C. § 2302(b)(8). An
appellant must make specific and detailed allegations; vague, conclusory, or
unsupported allegations, such as one that essentially repeats the legal standard,
without more, are pro forma and insufficient to meet the nonfrivolous standard.
Clark v. U.S. Postal Service , 123 M.S.P.R. 466, ¶¶ 6, 8 (2016), aff’d per curiam ,
679 F. App’x 1006 (Fed. Cir. 2017), and overruled on other grounds by Cronin v.
U.S. Postal Service , 2022 MSPB 13, ¶ 20 n.11. As the U.S. Court of Appeals for
the Federal Circuit held, “the question of whether the appellant has
non-frivolously alleged protected disclosures that contributed in a personnel
action must be determined based on whether [she] alleged sufficient factual
matter, accepted as true, to state a claim that is plausible on its face.” Hessami v.
Merit Systems Protection Board , 979 F.3d 1362, 1369 (Fed. Cir. 2020). In
addition, “the Board may not deny jurisdiction by crediting the agency’s
interpretation of the evidence as to whether the alleged disclosures fell within the
protected categories or whether the disclosures were a contributing factor in an
adverse personnel action.”7 Id.
In the initial decision, the administrative judge found that the appellant’s
disclosures regarding “violations of VA statutes governing Veterans’ disability
benefits, abuse of authority to enforce those violations, and ultimately gross
mismanagement of the Compensation & Pension Service” and the CoAM finding
“fault in a series of [the appellant’s husband’s] clinical cases, by either falsifying
records or violating VA statutes governing Veterans’ disability benefits” were pro
forma and did not amount to a nonfrivolous allegation of protected
whistleblowing. ID at 6. He further found that the appellant’s disclosure that the
7 The administrative judge did not have the benefit of Hessami at the time he issued his
initial decision. However, we find that the administrative judge’s analysis was
consistent with Hessami because he did not consider the agency’s evidence or
arguments in finding that the appellant failed to make the requisite nonfrivolous
allegations. ID at 5-10.
8
CoAM was incompetent or a narcissist could not be a protected disclosure,
despite the “disorder” label and her assertion that she was a certified psychiatrist.
ID at 6-7. Regarding the appellant’s disclosures that the CoAM and other doctors
failed to take a sufficiently pro-claimant approach and underdiagnosed, or
pressured others not to diagnose, PTSD, the administrative judge found no
nonfrivolous allegation of a protected disclosure because these disclosures
represented a policy disagreement that did not otherwise evidence one of the
categories of wrongdoing specified in section 2302(b)(8). ID at 7-10.
On review, the appellant reiterates her claim that her disclosures evidence a
violation of the “strongly and uniquely pro claimant” laws and regulations
governing veterans’ disability claims and specifies, for the first time, that the
CoAM and others violated 38 C.F.R. § 3.102, which requires the agency to
resolve reasonable doubt in favor of the veteran seeking benefits. PFR File,
Tab 1 at 4-26. She also argues again that her disclosures of an abuse of authority,
gross mismanagement, and a substantial and specific danger to public health and
safety were protected.8 Id.
Even under the expanded protections afforded to whistleblowers under the
Whistleblower Protection Enhancement Act (WPEA), general philosophical or
policy disagreements with agency decisions that “lawfully exercise discretionary
authority” are not protected unless the appellant has a reasonable belief that the
disclosed information separately evidences one of the categories of wrongdoing
listed in section 2302(b)(8)(A). Webb v. Department of the Interior ,
122 M.S.P.R. 248, ¶¶ 8-9, 12 n.6 (2015); see 5 U.S.C. § 2302(a)(2)(D).
Here, the appellant’s disclosures pertain to perceived errors in their
interpretation and application of the reasonable doubt regulation and the resulting
diagnoses. We agree with the administrative judge that these disclosures amount
8 The appellant has not challenged on review, and we discern no reason to disturb, the
administrative judge’s determination that her pro forma allegation that the CoAM
falsified records was insufficient to meet the nonfrivolous standard. PFR File, Tab 1;
ID at 6.
9
to disagreement over a lawful exercise of discretionary authority. ID at 9-10; see
5 U.S.C. § 2302(a)(2)(D); Webb, 122 M.S.P.R. 248, ¶¶ 2, 10 (finding that the
appellant’s position paper advocating for a different organizational restructuring
was a policy disagreement with the agency’s lawful decision to restructure a
division pursuant to the Secretary of the Interior’s directive). In addition, for the
reasons discussed below, we find that these policy disagreements do not
separately evidence a reasonable belief in one of the categories of wrongdoing
specified in section 2302(b)(8).
As discussed in the initial decision, erroneous rulings by the agency do not
constitute a “violation of law,” and an employee’s disagreement with an agency
ruling or adjudication does not constitute a protected disclosure even if that ruling
was legally incorrect. O’Donnell v. Department of Agriculture , 120 M.S.P.R. 94,
¶ 15 (2013), aff’d, 561 F. App’x 926 (Fed. Cir. 2014), clarified on other grounds
by Webb, 122 M.S.P.R. 248, ¶ 9. Such erroneous rulings are corrected through
the appeals process—not through insubordination and policy battles between
employees and their supervisors. Id. There are a large number of Federal
agencies that rule on citizens’ applications for benefits or redress every day, and
the orderly administration of these agencies requires that, for better or for worse,
supervisors and managers have the final say in such rulings. Id. A subordinate’s
refusal to abide by her supervisor’s instructions in this regard supplants the
orderly appeals process with chaotic agency in-fighting. Id. Such
insubordination is not protected by the WPEA. Id., ¶ 15 & n.5.
In O’Donnell, the Board found that a soil conservationist’s memorandum
stating his disagreement with his supervisor’s determination that a landowner was
not eligible for enrollment in the agency’s Conservation Reserve Program was not
a nonfrivolous allegation of a protected disclosure, even though he believed his
supervisor’s determination was contrary to agency policy. O’Donnell,
120 M.S.P.R. 94, ¶ 15. In addition, the Federal Circuit has found that an
administrative judge with the Department of the Interior’s Office of Hearing and
10
Appeals did not nonfrivolously allege that he made a protected disclosure when
he disagreed with the findings in a prior case. Meuwissen v. Department of the
Interior, 234 F.3d 9, 13-14 (Fed. Cir. 2000), superseded by statute on other
grounds as stated in O’Donnell, 120 M.S.P.R. 94, ¶ 15 n.5. Here, the
administrative judge found that the appellant’s disclosures that the CoAM and
others were prejudiced against certain types of veterans’ benefits claims and
failed to take a sympathetic approach in assessing their claimed disabilities were
analogous to the disclosure rejected as failing to meet the nonfrivolous standard
in O’Donnell. ID at 7-10. We agree.
As noted above, when a veteran applies for disability benefits, the agency
may order a C&P examination to gather evidence regarding service connection
and the severity of the claimed disability. See U.S. Department of Veterans
Affairs, VA Claim Exam (C&P Exam), https://www.va.gov/disability/va-claim-
exam/ (last visited Jan. 29, 2024). The providers within the C&P section are
responsible for providing a report containing this information to the agency
claims processor, who makes a determination on the veteran’s claim. Id. If a
veteran disagrees with the agency’s decision, he or she is entitled to request a
higher-level review or file an appeal with the Board of Veterans Appeals.
38 C.F.R. § 3.2500. Accordingly, as in O’Donnell and Meuwissen, any erroneous
decision may be corrected through the appeals process, and the appellant’s
disagreement with the C&P section’s approach and assessment of the veterans’
medical conditions does not constitute a nonfrivolous allegation of a violation of
law, rule, or regulation, even if the resulting disability benefits decisions were
incorrect. See O’Donnell, 120 M.S.P.R. 94, ¶ 15; see also Meuwissen , 234 F.3d
at 13-14.
We find that the appellant failed to nonfrivolously allege that her
disclosures evidence a reasonable belief that the CoAM’s conduct constituted
gross mismanagement. Gross mismanagement is a management action or inaction
that creates a substantial risk of significant adverse impact on the agency’s ability
11
to accomplish its mission. Swanson v. General Services Administration ,
110 M.S.P.R. 278, ¶ 11 (2008). Here, the appellant argues that her disclosure
regarding the CoAM’s “confrontational approach to C&P constituted gross
mismanagement because it was a management action which created a substantial
risk of significant adverse impact upon the agency’s ability to accomplish its
mission” and that, because of his gross mismanagement, “our service line of
administrative medicine did fall apart just like we predicted.” PFR File, Tab 1
at 10, 18. She also notes, as she did below, that the Office of Accountability
Review (OAR) and Administrative Investigation Board (AIB) substantiated her
disclosure of mismanagement when it found that the CoAM failed to provide
appropriate management of the C&P programs. Id. at 19-21; IAF, Tab 7 at 29,
Tab 8 at 33-34. We agree with the administrative judge that these pro forma
allegations of gross mismanagement, which recite the legal standard but fail to
identify any specific risk to the agency’s ability to accomplish its mission, are
insufficient to meet the nonfrivolous standard. See Clark, 123 M.S.P.R. 466,
¶¶ 6, 8; ID at 6. In addition, the appellant’s argument that the OAR/AIB
substantiated her belief in the reasonableness of her gross mismanagement
disclosure is unavailing because the misconduct identified by the OAR/AIB—
namely, issues with pay for poor performers, untimely exams, and too much time
allotted for administrative time and examinations—is not the alleged
mismanagement she disclosed.9 IAF, Tab 8 at 33 -34.
We find that the appellant’s disclosures amounted to disagreement with the
CoAM’s lawful exercise of discretionary authority rather than a protected
disclosure of an abuse of authority. See 5 U.S.C. § 2302(a)(2)(D); O’Donnell,
120 M.S.P.R. 94, ¶ 15. An abuse of authority is defined as an arbitrary or
capricious exercise of power by a Federal official or employee that adversely
9 Regarding the alleged harm actually disclosed by the appellant, the OAR/AIB found
that, while the CoAM’s negative comments relating to veterans seeking disability
benefits were “prevalent and consistent,” it could not substantiate allegations that he
imposed a higher burden of proof for approving veterans’ claims. IAF, Tab 8 at 33-34.
12
affects the rights of any person or that results in personal gain or advantage to
himself or to preferred other persons. Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285, ¶ 22 (2013). The appellant argues that her disclosures that the
CoAM used the peer review process to “deprive Veterans of their right to receive
benefits” and “to enforce illegal orders to illegally deny Veterans benefits”
evidence an abuse of authority because they show an “arbitrary or capricious
exercise of power by a federal official or employee that adversely affects the
rights of any person.” PFR File, Tab 1 at 9, 12-13, 20. Because these arguments
are vague and conclusory, making unsupported assertions and repeating the legal
standard, we agree with the administrative judge that the appellant failed to
nonfrivolously allege that she made a protected disclosure of an abuse of
authority. See Clark, 123 M.S.P.R. 466, ¶¶ 6, 8.
The appellant also argued below that her disclosure of an “illegal reduction
of Veterans’ disability benefits” evidenced a substantial and specific danger to
public health and safety because a veteran who has been denied benefits may
become violent or commit suicide. IAF, Tab 7 at 11, Tab 9 at 70. In support, she
provided news articles and agency notices regarding a number of incidents in
which a veteran with PTSD committed suicide or an act of violence, including
several where the veteran took these actions after the agency denied him benefits
or treatment. IAF, Tab 8 at 22-27. The administrative judge did not specifically
address this claim, which the appellant raises again on review. PFR File, Tab 1
at 11-15. Because disclosures of dangers to public health or safety must be
considered separately from other types of disclosures, and “the fact that a
particular health or safety statement involves a policy decision or disagreement
does not deprive it of protection,” we modify the initial decision to address this
claim. See Chambers v. Department of the Interior , 602 F.3d 1370, 1371 (Fed.
Cir. 2010).
In determining whether a disclosed danger is sufficiently substantial and
specific to warrant protection under the Whistleblower Protection Act (WPA), the
13
Board considers the following factors: (1) the likelihood of harm resulting from
the danger; (2) when the alleged harm may occur; and (3) the nature of the harm,
i.e., the potential consequences. Id. The Federal Circuit has explained that,
“[c]onsistent with these factors, the outcomes of past cases . . . have depended
upon whether a substantial, specific harm was identified, and whether the
allegations or evidence supported a finding that the harm had already been
realized or was likely to result in the reasonably foreseeable future.” Id.
Revelation of a negligible, remote, or ill-defined peril that does not involve any
particular person, place, or thing, however, is not protected. Sazinski v.
Department of Housing and Urban Development , 73 M.S.P.R. 682, 686 (1997).
In addition, the disclosure of a danger only potentially arising in the future is not
a protected disclosure. Herman v. Department of Justice , 193 F.3d 1375, 1379
(Fed. Cir. 1999), abrogated on other grounds by Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1372 n.1 (Fed. Cir. 2001).
We agree with the appellant that the potential consequences of a veteran
with mental health issues becoming violent or suicidal are substantial, and it is
undisputed that such incidents have occurred all too frequently in the past.
However, her allegation that such harm may occur at some point in the future
because of an insufficiently sympathetic C&P examination or the denial of a
disability benefits claim is too remote and speculative to be protected under the
WPA. See id. at 1378-80 (finding that a psychologist did not disclose a
substantial and specific danger to public safety under the WPA when he
speculated that the prison camp’s failure to have a suicide watch room on the
premises was potentially dangerous for suicidal inmates); Mogyorossy v.
Department of the Air Force , 96 M.S.P.R. 652, ¶¶ 16-17 (2004) (finding that a
security guard’s disclosure that he was permitted only to load three of four
possible shells into his shotgun evidenced merely a speculative danger that might
occur at some point in the future); see also S. Rep. No. 95-969, at 21 (1978), as
reprinted in 1978 U.S.C.C.A.N. 2723, 2743 (explaining that “general criticism by
14
an employee of the Environmental Protection Agency that the Agency is not
doing enough to protect the environment would not be protected under this
subsection”). Accordingly, we find that the appellant has not made a
nonfrivolous allegation of a protected disclosure of a substantial and specific
danger to public health or safety.10
Finally, the appellant argued below that she made a protected disclosure
when she informed agency management of the CoAM’s incompetence and
narcissistic personality disorder. IAF, Tab 7 at 10-13. She explained that,
because of this disorder, the CoAM required “automatic compliance with his
illegal orders to enforce an illegal adversarial approach to Veterans’ disability
claims,” which resulted in “illegal reduction of Veterans’ disability benefits” and
was likely to cause “substantial danger in the immediate or near future.” Id. In
the initial decision, the administrative judge found that the appellant’s accusation
that her supervisor was incompetent or a narcissist could not be a protected
disclosure, despite the “disorder” label and her assertion that she was a certified
psychiatrist. ID at 6-7.
On review, the appellant argues that she disclosed that the CoAM was an
impaired physician, that she had a duty to report it, and that the diagnosis was
based on the criteria set forth in the Diagnostic and Statistical Manual of Mental
Disorders and was “objectively reasonable enough to warrant OAR AIB
Investigation.” PFR File, Tab 1 at 15-23. Although the Board has previously
found an impaired provider disclosure to be protected, the disclosure in that case
concerned an allegedly cognitively impaired physician who exhibited unusual
behavior and deficient patient care. Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶¶ 2, 13 n.3. The Board explained that the disclosed danger in
10 In Hessami, 979 F.3d at 1370, the court found that the appellant made a nonfrivolous
allegation that she reasonably believed that her disclosures concerning patient care
evidenced a substantial and specific danger to public health or safety. In contrast, the
disclosures in the instant appeal do not pertain to harm that might arise directly from
patient care practices; they are speculative conjectures of harm that might arise
indirectly from disability evaluation decisions.
15
that case could undoubtedly lead to immediate and serious harm to patients. Id.,
¶ 13 n.3. Here, on the other hand, the appellant has not alleged, and there is no
indication, that the CoAM treated patients or that he posed a direct threat to
himself or others. In addition, for the reasons the appellant’s disclosures
regarding the C&P section’s adversarial approach and underdiagnosis of PTSD
are not protected, her disclosures that the CoAM’s incompetence and narcissistic
personality disorder caused the adversarial approach and underdiagnosis of PTSD
are not protected. Accordingly, we discern no basis to disturb the administrative
judge’s determination that the appellant failed to nonfrivolously allege that her
disclosures regarding the CoAM’s incompetence and personality disorder were
protected.
In light of the foregoing, we find that the appellant failed to nonfrivolously
allege that she made any protected disclosures. Therefore, the administrative
judge properly dismissed this IRA appeal, including the pay table claim, for lack
of jurisdiction.
NOTICE OF APPEAL RIGHTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
16
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.
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.12 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
19
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. | Kulkarni_Sayali_DE-1221-19-0157-W-1_Final_Order.pdf | 2024-01-30 | SAYALI KULKARNI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-19-0157-W-1, January 30, 2024 | DE-1221-19-0157-W-1 | NP |
2,479 | https://www.mspb.gov/decisions/nonprecedential/Allen_Karen_DC-0752-17-0834-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREN ALLEN,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-0752-17-0834-I-1
DATE: January 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karen Allen , Bowie, Maryland, pro se.
Robert M. Mirkov , Esquire, and Byron D. Smalley , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. On petition for review, the appellant argues that the
administrative judge erred by finding that the agency proved its charges and that
the penalty of removal is excessive. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 | Allen_Karen_DC-0752-17-0834-I-1__Final_Order.pdf | 2024-01-30 | KAREN ALLEN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-17-0834-I-1, January 30, 2024 | DC-0752-17-0834-I-1 | NP |
2,480 | https://www.mspb.gov/decisions/nonprecedential/Brown_Sean_S_AT-0752-10-0168-R-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN BROWN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-10-0168-R-1
DATE: January 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
ean Brown , Zephyrhills, Florida, pro se.
Jeffrey L. Sheldon , Esquire, Tampa, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a request to reopen his removal appeal, which was
dismissed pursuant to the parties’ execution of a settlement agreement. For the
reasons set forth below, we DENY the appellant’s request to reopen.
On October 29, 2009, the appellant filed a removal appeal. Brown v. U.S.
Postal Service , MSPB Docket No. AT-0752-10-0168-I-1, Initial Appeal File,
Tab 24, Initial Decision (ID) at 1. On March 3, 2010, the administrative judge
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
dismissed the appeal pursuant to the parties’ execution of a settlement agreement.
ID at 1-2. In February 2012, the appellant filed a petition for review, alleging
that the settlement agreement was fraudulently and involuntarily obtained. Brown
v. U.S. Postal Service , MSPB Docket No. AT-0752-10-0168-I-1, Petition for
Review (PFR) File, Tab 1. With his petition, the appellant submitted an
October 21, 2011 decision from the Social Security Administration (SSA)
denying his request for disability insurance benefits. Id. at 3-11. In a final Board
order dated September 13, 2012, the Board dismissed the appellant’s petition as
untimely filed, finding that the appellant did not explain why he waited
approximately 4 months after he received SSA’s decision to file his petition and,
thus, failed to show that he acted with due diligence in filing his petition. Brown
v. U.S. Postal Service , MSPB Docket No. AT-0752-10-0168-I-1, Final Order
(Sept. 13, 2012); PFR File, Tab 10 at 3.
On October 2, 2019, the appellant filed a submission with the Atlanta
Regional Office alleging that he had “just discovered that [his] settlement of
March 01, 2010 [was] a fraud.” Brown v. U.S. Postal Service , MSPB Docket
No. AT-0752-10-0168-R-1, Request to Reopen File (RRF), Tab 1 at 1. With his
submission, he included a copy of the March 1, 2010 settlement agreement as
well as copies of pay stubs dated September 7, 2007, and December 11, 2009. Id.
at 2-9.2 On October 20, 2019, he filed another pleading in which he appears to
argue that he did not understand the settlement agreement and was forced to sign
it on March 3, 2010.3 RRF, Tab 2 at 1. Because the appellant has filed these
submissions alleging fraud approximately 7 years after the Board’s final decision
regarding his removal appeal, we treat them as a request to reopen.
2 The appellant filed a similar pleading 4 years later, on October 25, 2023, alleging that
he “received a fraudulent settlement agreement from the [O]ffice of [P]ersonnel
[M]anagement in Marc[h] of 2010.” RRF, Tab 5.
3 With his October 20, 2019 pleading, the appellant also submitted a copy of an
October 19, 2019 letter he sent to the agency in which he appears to assert that the
settlement agreement was fraudulent when it was signed. RRF, Tab 2 at 3-4.2
The Board has authority to reopen, on its own motion, appeals in which it
has rendered a final decision. 5 U.S.C. § 7701(e)(1)(B); 5 C.F.R. § 1201.118.
The Board will exercise its discretion to reopen an appeal only in unusual or
extraordinary circumstances, such as an intervening event or the discovery of a
misrepresentation or fraud. Mitchell v. Department of Commerce , 100 M.S.P.R.
415, ¶ 9 (2005). The discovery of a fraud that renders a settlement agreement
invalid can provide a basis for reopening an appeal. See Linares-Rosado v. U.S.
Postal Service, 112 M.S.P.R. 599, ¶¶ 7, 11 (2009). The Board, however, will
reopen an appeal only if the appellant has exercised due diligence in seeking
reopening. See Keys v. Office of Personnel Management , 113 M.S.P.R. 173, ¶ 8
(2010) (stating that a request to reopen must be presented in a timely manner,
generally measured in weeks).
Here, the appellant has neither introduced new evidence concerning the
alleged fraud that he contends renders the settlement agreement invalid nor shown
that he acted diligently in filing his request to reopen upon learning of such
alleged fraud.4 Accordingly, we find no basis for reopening and reconsidering the
appeal, and the appellant’s request to reopen the appeal is, therefore, denied.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
4 To the extent the appellant is claiming that he was forced to sign the settlement
agreement in March 2010 and/or that he did not understand the terms of the settlement
agreement when he signed it, RRF, Tab 2 at 1-4, Tab 5, he appears to have previously
raised such claims in his prior petition for review, which the Board dismissed as
untimely filed in its September 13, 2012 Final Order, PFR File, Tab 1 at 1, Tab 10 at 3.
In any event, the appellant has not offered any facts or evidence that would suggest that
such claims are based on newly discovered evidence.
5 On March 15, 2023, the appellant filed a pleading in which he requested a hearing.
PFR File, Tab 3. In light of our decision, the appellant’s request is denied.
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.3
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. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
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. 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 | Brown_Sean_S_AT-0752-10-0168-R-1_Final_Order.pdf | 752-10-01 | SEAN BROWN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-10-0168-R-1, January 30, 2024 | AT-0752-10-0168-R-1 | NP |
2,481 | https://www.mspb.gov/decisions/nonprecedential/Kulkarni_Abhijit_DE-1221-19-0158-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ABHIJIT KULKARNI,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-19-0158-W-1
DATE: January 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
S
ayali Kulkarni , Salt Lake City, Utah, for the appellant.
Johnston B. Walker , Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. For the reasons set forth below, we
DISMISS as settled all but one of the appellant’s claims on petition for review.
As it concerns the appellant’s remaining claim regarding the determination that
he belonged on Pay Table 1, we AFFIRM the initial decision except as expressly
MODIFIED to address the appellant’s claim that his disclosures evidenced a
substantial and specific danger to public health or safety.
BACKGROUND
During the time period relevant to this appeal, the agency employed the
appellant and his wife, Sayali Kulkarni, as Physicians in the Compensation and
Pension (C&P) section at the Veterans Health Administration in Salt Lake City,
Utah.2 Initial Appeal File (IAF), Tab 1 at 7, Tab 11 at 53, Tab 13 at 9. In this
role, they provided medical opinions used to assess veterans’ claims for disability
benefits. IAF, Tab 9 at 34-36, Tab 13 at 4, 9; see U.S. Department of Veterans
Affairs, VA Claim Exam (C&P Exam), https://www.va.gov/disability/va-claim-
exam/ (last visited Jan. 29, 2024). After receiving a February 28, 2019 closure
2 The appellant’s wife also filed an IRA appeal based on many of the same claims as the
instant appeal. See Kulkarni v. Department of Veterans Affairs , MSPB Docket No.
DE-1221-19-0157-W-1.
3
letter from the Office of Special Counsel (OSC), the appellant timely filed the
instant IRA appeal.3 IAF, Tab 1 at 31-32.
In response to the administrative judge’s order on jurisdiction, the
appellant alleged that, in retaliation for disclosing violations of laws, rules, and
regulations, an abuse of authority, gross mismanagement, and a substantial and
specific danger to public health and safety, the agency admonished him, gave him
a “pay table demotion,” and subjected him to a hostile work environment. IAF,
Tab 7 at 7-12. In particular, he identified the following disclosures: (1) in a
November 3, 2013 written response to his proficiency report, he informed agency
management that the Chief of Administrative Medicine (CoAM) unfairly gave
him a “mediocre” evaluation in “an effort to undermine [his] clinical practice,”
IAF, Tab 7 at 7, Tab 8 at 8-9; (2) in May 2015 emails, the appellant and his wife
informed the Acting Director that, contrary to statute and agency best practices,
the CoAM instructed doctors not to diagnose post-traumatic stress disorder
(PTSD) in most veterans claiming benefits for PTSD, alleged that the CoAM
found fault in the appellant’s clinical cases by “falsifying records or violating VA
statutes governing Veterans’ disability benefits,” and identified a number of
PTSD clinical team examiners and C&P examiners who improperly did not
diagnose a veteran with PTSD or attempted to overturn prior PTSD diagnoses,
IAF, Tab 7 at 8, Tab 8 at 32-37; and (3) a September 17, 2015 email to the
Director informing him that the CoAM was an “impaired physician who suffers
from a Narcissistic Personality Disorder” and that the CoAM and Chief of Staff
had “failed both the Veterans and the employees,” as detailed in the May 2015
3 When a veteran applies for disability benefits, the agency may order a C&P
examination to gather evidence regarding service connection and the severity of the
claimed disability. See U.S. Department of Veterans Affairs, VA Claim Exam (C&P
Exam), https://www.va.gov/disability/va-claim-exam/ (last visited Jan. 29, 2024). If
one is ordered, the doctors within the C&P section review the veteran’s file, see the
veteran for an appointment, and write a report containing an assessment regarding the
veteran’s diagnosis, the severity of the diagnosis, and whether the disability is service
connected. Id. The report is then submitted to the agency claims processor to make a
decision on the veteran’s claim for benefits. Id.
4
emails and a similar June 2015 email, IAF, Tab 7 at 8, Tab 8 at 44-46. The
appellant also alleged that the agency perceived him as a whistleblower based on
his wife’s whistleblowing, which similarly pertained to the C&P’s failure to
properly evaluate veterans’ disabilities in connection with their claims for
disability benefits and the CoAM’s incompetence, bias against veterans claiming
disability benefits for PTSD, and narcissistic personality disorder. IAF, Tab 7
at 7-8, Tab 8 at 8, 10-12, 14 -17, 19-21, 57-92.
Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction on the ground that the appellant failed to
nonfrivolously allege that he made a protected disclosure. IAF, Tab 22, Initial
Decision (ID). The appellant has filed a petition for review of the initial
decision, and the agency has responded. Petition for Review (PFR) File, Tabs 1,
3.4
ANALYSIS
During the pendency of the petition for review, the parties submitted a
document entitled “SETTLEMENT AGREEMENT” signed and dated by the
appellant on May 7, 2020, and by the agency on May 8, 2020. PFR File, Tab 4.
The document provides, among other things, that the instant appeal will be
dismissed as withdrawn, except for “specific claims related to the determination
that [the appellant] belongs on Pay Table 1.” Id. at 4-5.
Before 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,
4 The appellant has submitted with his petition for review a number of exhibits
regarding PTSD and military sexual trauma, news articles about suicide and acts of
violence by veterans, printouts of regulations, and copies of emails from 2014 through
2016. PFR File, Tab 1 at 33-67. The appellant has not alleged or shown that these
documents were unavailable below despite his due diligence, and we therefore do not
consider them for the first time on review. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980).
5
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Massey v.
Office of Personnel Management , 91 M.S.P.R. 289, ¶ 4 (2002), overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforcement by the Board. PFR File, Tab 4 at 6. As the parties do not
intend for the Board to enforce the settlement agreement, we do not address the
additional considerations regarding enforcement and do not enter the settlement
agreement into the record for enforcement by the Board.
Accordingly, we find that dismissing all claims except those relating to Pay
Table 1 “with prejudice to refiling” (i.e., the parties normally may not refile this
appeal) is appropriate under these circumstances.
We turn now to the appellant’s remaining claim. The Board has
jurisdiction over an IRA appeal if the appellant has exhausted his administrative
remedies before OSC and makes nonfrivolous allegations of the following: (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
protected disclosure or activity was a contributing factor in the agency’s decision
to take or fail to take, or threaten to take or fail to take, a personnel action as
defined by 5 U.S.C. § 2302(a).5 Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1221(e)(1), 2302(b)(8).6
5 In the initial decision, the administrative judge found, and we agree, that the appellant
exhausted the claims raised in this appeal before OSC. ID at 2-3; IAF, Tab 1 at 31-32,
Tabs 14-17.
6
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). 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 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. Id.; see 5 U.S.C. § 2302(b)(8). An
appellant must make specific and detailed allegations; vague, conclusory, or
unsupported allegations, such as one that essentially repeats the legal standard,
without more, are pro forma and insufficient to meet the nonfrivolous standard.
Clark v. U.S. Postal Service , 123 M.S.P.R. 466, ¶¶ 6, 8 (2016), aff’d per curiam ,
679 F. App’x 1006 (Fed. Cir. 2017), and overruled on other grounds by Cronin v.
U.S. Postal Service , 2022 MSPB 13, ¶ 20 n.11. As the U.S. Court of Appeals for
the Federal Circuit held, “the question of whether the appellant has
non-frivolously alleged protected disclosures that contributed in a personnel
action must be determined based on whether [he] alleged sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit
Systems Protection Board , 979 F.3d 1362, 1369 (Fed. Cir. 2020). So too, “[t]he
Board may not deny jurisdiction by crediting the agency’s interpretation of the
evidence as to whether the alleged disclosures fell within the protected categories
6 We have reviewed the relevant legislation amending the whistleblower protection
statutory scheme that was enacted during the pendency of this appeal and have
concluded that it does not affect the outcome of the appeal, nor does it affect the
relevant holdings of the case law cited in this Final Order.
7
or whether the disclosures were a contributing factor in an adverse personnel
action.”7 Id.
In the initial decision, the administrative judge found that the appellant’s
disclosures regarding “violations of VA statutes governing Veterans’ disability
benefits, abuse of authority to enforce those violations, and ultimately gross
mismanagement of the Compensation & Pension Service” and the CoAM finding
“fault in a series of [his] clinical cases, by either falsifying records or violating
VA statutes governing Veterans’ disability benefits” were pro forma and did not
amount to a nonfrivolous allegation of protected whistleblowing. ID at 6. He
further found that the appellant’s disclosure that the CoAM was incompetent or a
narcissist could not be a protected disclosure, despite the “disorder” label and his
assertion that he was a certified psychiatrist. ID at 6-7. Regarding the
appellant’s disclosures that the CoAM and other doctors failed to take a
sufficiently pro-claimant approach and underdiagnosed, or pressured others not to
diagnose, PTSD, the administrative judge found no nonfrivolous allegation of a
protected disclosure because these disclosures represented a policy disagreement
that did not otherwise evidence one of the categories of wrongdoing specified in
section 2302(b)(8). ID at 7-10.
On review, the appellant reiterates that his disclosures evidence a violation
of the “strongly and uniquely pro claimant” laws and regulations governing
veterans’ disability claims and specifies, for the first time, that the CoAM and
others violated 38 C.F.R. § 3.102, which requires the agency to resolve
reasonable doubt in favor of the veteran seeking benefits. PFR File, Tab 1
at 4-26. He also argues again that his disclosures of an abuse of authority, gross
7 The administrative judge did not have the benefit of Hessami at the time he issued his
initial decision. However, we find that the administrative judge’s analysis was
consistent with Hessami because he did not consider the agency’s evidence or
arguments in finding that the appellant failed to make the requisite nonfrivolous
allegations. ID at 5-10.
8
mismanagement, and a substantial and specific danger to public health and safety
were protected.8 Id.
Even under the expanded protections afforded to whistleblowers under the
Whistleblower Protection Enhancement Act (WPEA), general philosophical or
policy disagreements with agency decisions that “lawfully exercise discretionary
authority” are not protected unless the appellant has a reasonable belief that the
disclosed information separately evidences one of the categories of wrongdoing
listed in section 2302(b)(8)(A). Webb v. Department of the Interior ,
122 M.S.P.R. 248, ¶¶ 8-9, 12 n.6 (2015); see 5 U.S.C. § 2302(a)(2)(D).
Here, the appellant’s disclosures pertain to perceived errors in the
interpretation and application of the reasonable doubt regulation and the resulting
diagnoses. We agree with the administrative judge that these disclosures amount
to disagreement over a lawful exercise of discretionary authority. ID at 9-10; see
5 U.S.C. § 2302(a)(2)(D); Webb, 122 M.S.P.R. 248, ¶¶ 2, 10 (finding that the
appellant’s position paper advocating for a different organizational restructuring
was a policy disagreement with the agency’s lawful decision to restructure a
division pursuant to the Secretary of the Interior’s directive). In addition, for the
reasons discussed below, we find that these policy disagreements do not
separately evidence a reasonable belief in one of the categories of wrongdoing
specified in section 2302(b)(8).
As discussed in the initial decision, erroneous rulings by an agency do not
constitute a “violation of law,” and an employee’s disagreement with an agency
ruling or adjudication does not constitute a protected disclosure even if that ruling
was legally incorrect. O’Donnell v. Department of Agriculture , 120 M.S.P.R. 94,
¶ 15 (2013), aff’d, 561 F. App’x 926 (Fed. Cir. 2014), clarified on other grounds
by Webb, 122 M.S.P.R. 248, ¶ 9. Such erroneous rulings are corrected through
8 The appellant has not challenged on review, and we discern no reason to disturb, the
administrative judge’s determination that his pro forma allegation that the CoAM
falsified records was insufficient to meet the nonfrivolous standard. PFR File, Tab 1;
ID at 6.
9
the appeals process—not through insubordination and policy battles between
employees and their supervisors. Id. There are a large number of Federal
agencies that rule on citizens’ applications for benefits or redress every day, and
the orderly administration of these agencies requires that, for better or for worse,
supervisors and managers have the final say in such rulings. Id. A subordinate’s
refusal to abide by his supervisor’s instructions in this regard supplants the
orderly appeals process with chaotic agency in-fighting. Id. Such
insubordination is not protected by the WPEA. Id., ¶ 15 & n.5.
In O’Donnell, the Board found that a soil conservationist’s memorandum
stating his disagreement with his supervisor’s determination that a landowner was
not eligible for enrollment in the agency’s Conservation Reserve Program was not
a nonfrivolous allegation of a protected disclosure, even though he believed his
supervisor’s determination was contrary to agency policy. O’Donnell,
120 M.S.P.R. 94, ¶ 15. Similarly, the Federal Circuit has found that an
administrative judge with the Department of the Interior’s Office of Hearing and
Appeals did not nonfrivolously allege that he made a protected disclosure when
he disagreed with the findings in a prior case. Meuwissen v. Department of the
Interior, 234 F.3d 9, 13-14 (Fed. Cir. 2000), superseded by statute on other
grounds as stated in O’Donnell, 120 M.S.P.R. 94, ¶ 15 n.5. Here, the
administrative judge found that the appellant’s disclosures that the CoAM and
others were prejudiced against certain types of veterans’ benefits claims and
failed to take a sympathetic approach in assessing their claimed disabilities were
analogous to the disclosure rejected as failing to meet the nonfrivolous standard
in O’Donnell. ID at 7-10. We agree.
As noted above, when a veteran applies for disability benefits, the agency
may order a C&P examination to gather evidence regarding service connection
and the severity of the claimed disability. See U.S. Department of Veterans
Affairs, VA Claim Exam (C&P Exam), https://www.va.gov/disability/va-claim-
exam/ (last visited Jan. 29, 2024). The providers within the C&P section are
10
responsible for providing a report containing this information to the agency
claims processor, who makes a determination on the veteran’s claim. Id. If a
veteran disagrees with the agency’s decision, he or she is entitled to request a
higher-level review or file an appeal with the Board of Veterans Appeals.
38 C.F.R. § 3.2500. Accordingly, as in O’Donnell and Meuwissen, any erroneous
decision may be corrected through the appeals process, and the appellant’s
disagreement with the C&P section’s approach and assessment of the veterans’
medical conditions does not constitute a nonfrivolous allegation of a violation of
law, rule, or regulation, even if the resulting disability benefits decisions were
incorrect. See O’Donnell, 120 M.S.P.R. 94, ¶ 15; see also Meuwissen , 234 F.3d
at 13-14.
We find that the appellant failed to nonfrivolously allege that his policy
disagreements, or any other purported disclosures, evidence a reasonable belief
that the CoAM’s conduct constituted gross mismanagement. Gross
mismanagement is a management action or inaction that creates a substantial risk
of significant adverse impact on the agency’s ability to accomplish its mission.
Swanson v. General Services Administration , 110 M.S.P.R. 278, ¶ 11 (2008).
Here, the appellant argues that his disclosure regarding the CoAM’s
“confrontational approach to C&P constituted gross mismanagement because it
was a management action which created a substantial risk of significant adverse
impact upon the agency’s ability to accomplish its mission” and that, because of
his gross mismanagement, “our service line of administrative medicine did fall
apart just like we predicted.” PFR File, Tab 1 at 10, 18. He also notes, as he did
below, that the Office of Accountability Review (OAR) and Administrative
Investigation Board (AIB) substantiated his disclosure of mismanagement when it
found that the CoAM failed to provide appropriate management of the C&P
programs. Id. at 19-21; IAF, Tab 9 at 31-32. We agree with the administrative
judge that these pro forma allegations of gross mismanagement, which recite the
legal standard but fail to identify any specific risk to the agency’s ability to
11
accomplish its mission, are insufficient to meet the nonfrivolous standard. See
Clark, 123 M.S.P.R. 466, ¶¶ 6, 8; ID at 6. In addition, the appellant’s argument
that the OAR/AIB substantiated his belief in the reasonableness of his gross
mismanagement disclosure is unavailing because the misconduct identified by the
OAR/AIB—namely, issues with pay for poor performers, untimely exams, and
too much time allotted for administrative time and examinations—is not the
alleged mismanagement he disclosed.9 IAF, Tab 8 at 33-34.
We also find that the appellant’s disclosures do not amount to a protected
disclosure of abuse of authority. See 5 U.S.C. § 2302(a)(2)(D); O’Donnell,
120 M.S.P.R. 94, ¶ 15. An abuse of authority is defined as an arbitrary or
capricious exercise of power by a Federal official or employee that adversely
affects the rights of any person or that results in personal gain or advantage to
himself or to preferred other persons. Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285, ¶ 22 (2013). The appellant argues that his disclosures that the
CoAM used the peer review process to “deprive Veterans of their right to receive
benefits” and “to enforce illegal orders to illegally deny Veterans benefits”
evidence an abuse of authority because they show an “arbitrary or capricious
exercise of power by a federal official or employee that adversely affects the
rights of any person.” IAF, Tab 7 at 7; PFR File, Tab 1 at 9, 12-13, 20. Because
these arguments are vague and conclusory, making unsupported assertions and
repeating the legal standard, we agree with the administrative judge that the
appellant failed to nonfrivolously allege that he made a protected disclosure of an
abuse of authority. See Clark, 123 M.S.P.R. 466, ¶¶ 6, 8.
The appellant also argued below that his disclosure of an “illegal reduction
of Veterans’ disability benefits” evidenced a substantial and specific danger to
public health and safety because a veteran who has been denied benefits may
9 Regarding the alleged harm actually disclosed by the appellant, the OAR/AIB found
that, while the CoAM’s negative comments relating to veterans seeking disability
benefits were “prevalent and consistent,” it could not substantiate allegations that he
imposed a higher burden of proof for approving veterans’ claims. IAF, Tab 9 at 31-32.
12
become violent or commit suicide. IAF, Tab 7 at 11, Tab 9 at 70. In support, he
provided news articles and agency notices regarding a number of incidents in
which a veteran with PTSD committed suicide or an act of violence, including
several where the veteran took these actions after the agency denied him benefits
or treatment. IAF, Tab 9 at 20-25. The administrative judge did not specifically
address this claim, which the appellant raises again on review. PFR File, Tab 1
at 11-15. Because disclosures of dangers to public health or safety must be
considered separately from other types of disclosures, and “the fact that a
particular health or safety statement involves a policy decision or disagreement
does not deprive it of protection,” we modify the initial decision to address this
claim. See Chambers v. Department of the Interior , 602 F.3d 1370, 1371 (Fed.
Cir. 2010).
In determining whether a disclosed danger is sufficiently substantial and
specific to warrant protection under the Whistleblower Protection Act (WPA), the
Board considers the following factors: (1) the likelihood of harm resulting from
the danger; (2) when the alleged harm may occur; and (3) the nature of the harm,
i.e., the potential consequences. Id. The Federal Circuit has explained that,
“[c]onsistent with these factors, the outcomes of past cases . . . have depended
upon whether a substantial, specific harm was identified, and whether the
allegations or evidence supported a finding that the harm had already been
realized or was likely to result in the reasonably foreseeable future.” Id.
Revelation of a negligible, remote, or ill-defined peril that does not involve any
particular person, place, or thing, however, is not protected. Sazinski v.
Department of Housing and Urban Development , 73 M.S.P.R. 682, 686 (1997).
In addition, the disclosure of a danger only potentially arising in the future is not
a protected disclosure. Herman v. Department of Justice , 193 F.3d 1375, 1379
(Fed. Cir. 1999), abrogated on other grounds by Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1372 n.1 (Fed. Cir. 2001).
13
We agree with the appellant that the potential consequences of a veteran
with mental health issues becoming violent or suicidal are substantial, and it is
undisputed that such incidents have occurred all too frequently in the past.
However, his allegation that such harm may occur at some point in the future
because of an insufficiently sympathetic C&P examination or the denial of a
disability benefits claim is too remote and speculative to be protected under the
WPA. See id. at 1378-80 (finding that a psychologist did not disclose a
substantial and specific danger to public safety under the WPA when he
speculated that the prison camp’s failure to have a suicide watch room on the
premises was potentially dangerous for suicidal inmates); Mogyorossy v.
Department of the Air Force , 96 M.S.P.R. 652, ¶¶ 16-17 (2004) (finding that a
security guard’s disclosure that he was permitted only to load three of four
possible shells into his shotgun evidenced merely a speculative danger that might
occur at some point in the future); see also S. Rep. No. 95-969, at 21 (1978), as
reprinted in 1978 U.S.C.C.A.N. 2723, 2743 (explaining that “general criticism by
an employee of the Environmental Protection Agency that the Agency is not
doing enough to protect the environment would not be protected under this
subsection”). Accordingly, we find that the appellant has not made a
nonfrivolous allegation of a protected disclosure of a substantial and specific
danger to public health or safety.10
Finally, the appellant argued below that he made a protected disclosure
when he informed agency management of the CoAM’s incompetence and
narcissistic personality disorder. IAF, Tab 7 at 7-10. He explained that, because
of this disorder, the CoAM required “automatic compliance with his illegal orders
to enforce an illegal adversarial approach to Veterans’ disability claims,” which
10 In Hessami, 979 F.3d at 1370, the court found that the appellant made a nonfrivolous
allegation that she reasonably believed that her disclosures concerning patient care
evidenced a substantial and specific danger to public health or safety. In contrast, the
disclosures in the instant appeal do not pertain to harm that might arise directly from
patient care practices; they are speculative conjectures of harm that might arise
indirectly from disability evaluation decisions.
14
resulted in “illegal reduction of Veterans’ disability benefits” and was likely to
cause “substantial danger in the immediate or near future.” Id. In the initial
decision, the administrative judge found that the appellant’s accusation that his
supervisor was incompetent or a narcissist could not be a protected disclosure,
despite the “disorder” label and his assertion that he was a certified psychiatrist.
ID at 6-7.
On review, the appellant argues that he disclosed that the CoAM was an
impaired physician, that he had a duty to report it, and that the diagnosis was
based on the criteria set forth in the Diagnostic and Statistical Manual of Mental
Disorders and was “objectively reasonable enough to warrant OAR AIB
Investigation.” PFR File, Tab 1 at 15-23. Although the Board has previously
found an impaired provider disclosure to be protected, the disclosure in that case
concerned an allegedly cognitively impaired physician who exhibited unusual
behavior and deficient patient care. Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶¶ 2, 13 n.3. The Board explained that the disclosed danger in
that case could undoubtedly lead to immediate and serious harm to patients. Id.,
¶ 13 n.3. Here, on the other hand, the appellant has not alleged, and there is no
indication, that the CoAM treated patients or that he posed a direct threat to
himself or others. In addition, for the reasons the appellant’s disclosures
regarding the C&P section’s adversarial approach and underdiagnosis of PTSD
are not protected, his disclosures that the CoAM’s incompetence and narcissistic
personality disorder caused the adversarial approach and underdiagnosis of PTSD
are not protected. Accordingly, we discern no basis to disturb the administrative
judge’s determination that the appellant failed to nonfrivolously allege that his
disclosures regarding the CoAM’s incompetence and personality disorder were
protected.
In light of the foregoing, we find that the appellant failed to nonfrivolously
allege that he made any protected disclosures. Therefore, the administrative
15
judge properly dismissed this IRA appeal, including the pay table claim, for lack
of jurisdiction.
NOTICE OF APPEAL RIGHTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
16
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
17
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
18
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
19
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. | Kulkarni_Abhijit_DE-1221-19-0158-W-1_Final_Order.pdf | 2024-01-30 | ABHIJIT KULKARNI v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-19-0158-W-1, January 30, 2024 | DE-1221-19-0158-W-1 | NP |
2,482 | https://www.mspb.gov/decisions/nonprecedential/Ingram-Jones_Trinity_L_AT-1221-14-0633-R-1_AT-1221-15-0313-R-1_AT-0752-15-0340-R-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRINITY LYNN INGRAM-JONES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBERS
AT-1221-14-0633-R-1
AT-1221-15-0313-R-1
AT-0752-15-0340-R-1
DATE: January 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Katherine R Atkinson , Esquire, and Gabriella Farago , Esquire, Bethesda,
Maryland, for the appellant.
Joyce E. Kitchens , Esquire, St. Simons Island, Georgia, for the appellant.
Stuart A. Miller , Esquire, Locust Grove, Georgia, for the appellant.
Sarah M. Brennan Kalinowski , Esquire, Fort Stewart, Georgia, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The Board issued a final decision in these joined appeals on February 23,
2023. Ingram-Jones v. Department of the Army , MSPB Docket Nos. AT-1221-
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
14-0633-W-2; AT-1221-15-0313-W-1; AT-0752-15-0340-I-1, Final Order
(Feb. 23, 2023). For reasons set forth below, we REOPEN the appeals on the
Board’s own motion under 5 U.S.C. § 7701(e)(1)(B) and 5 C.F.R. § 1201.118,
VACATE the Board’s Final Order in Ingram-Jones v. Department of the Army ,
MSPB Docket Nos. AT-1221-14-0633-W-2; AT-1221-15-0313-W-1; AT-0752-
15-0340-I-1, Final Order (Feb. 23, 2023), and DISMISS the underlying appeals as
settled.2
¶2On February 23, 2023, the Board issued a final decision, which granted the
appellant’s petition for review and ordered corrective action in the appellant’s
joined appeals, which included two individual right of action appeals and an
involuntary resignation appeal. Ingram-Jones v. Department of the Army , MSPB
Docket Nos. AT-1221-14-0633-W-2; AT-1221-15-0313-W-1; AT-0752-15-0340-
I-1, Final Order (Feb. 23, 2023). Thereafter, the parties reached a settlement
agreement, and the agency filed a consent motion to dismiss the appeals as
settled, and enter the settlement agreement into the record for enforcement
purposes. Ingram-Jones v. Department of the Army , MSPB Docket No. AT-1221-
14-0633-R-1, Reopening Appeal File (0633 RAF), Tab 1; Ingram-Jones v.
Department of the Army , MSPB Docket No. AT-1221-15-0313-R-1, Reopening
Appeal File (0313 RAF), Tab 1; Ingram-Jones v. Department of the Army , MSPB
Docket No. AT-0752-15-0340-R-1, Reopening Appeal File (0340 RAF), Tab 1.
The agency attached a copy of the executed settlement agreement, showing that
the document was signed by both parties on April 19, 2023. 0633 RAF, Tab 1
at 9; 0313 RAF, Tab 1 at 9; 0340 RAF, Tab 1 at 9. The document provides,
2 The agency’s consent motion to dismiss the appeals as settled was docketed as three
separate reopening requests as Ingram-Jones v. Department of the Army , MSPB Docket
Nos. AT-1221-14-0633-R-1; AT-1221-15-0313-R-1; AT-0752-15-0340-R-1. Joinder of
two or more appeals filed by the same appellant is appropriate where 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.2
among other things, for the dismissal of the appeal. 0633 RAF, Tab 1 at 7; 0313
RAF, Tab 1 at 7; 0340 RAF, Tab 1 at 7.
¶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). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
¶4Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. 0633 RAF, Tab 1 at 8; 0313 RAF, Tab 1 at 8;
0340 RAF, Tab 1 at 8. In addition, we find that the agreement is lawful on its
face and freely entered into, and we accept the settlement agreement into the
record for enforcement purposes. Accordingly, we find it appropriate under the
circumstances to vacate the Board’s decision, dated February 23, 2023, and
dismiss as settled the underlying appeals with prejudice to refiling (i.e., the
parties normally may not refile this appeal).
¶5This is the final decision of the Merit Systems Protection Board in these
appeals. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not3
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Ingram-Jones_Trinity_L_AT-1221-14-0633-R-1_AT-1221-15-0313-R-1_AT-0752-15-0340-R-1_Final_Order.pdf | 2024-01-26 | null | AT-1221- | NP |
2,483 | https://www.mspb.gov/decisions/nonprecedential/White_Gloria_R_AT-844E-17-0640-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLORIA R. WHITE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-17-0640-I-2
DATE: January 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
G
loria R. White , Andrews, South Carolina, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her disability retirement application. 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 petition for review, the appellant argues, among other things, that the
record does not support certain facts stated in the initial decision, that the
administrative judge misapplied the law, that her medical conditions were
disabling, that she requested accommodation, and that she could not be
accommodated based on her supervisor’s statement. Petition for Review File,
Tab 1 at 1-3. After considering the appellant’s arguments on review and
reviewing the record, we discern no material error in the initial decision. In
particular, we conclude that the administrative judge properly considered the
totality of the evidence, including the appellant’s subjective testimony of
disability and the objective medical evidence, in finding that the appellant failed
to prove that she became disabled because of a medical condition while employed
in a position subject to the Federal Employees’ Retirement System (FERS) . We
discern no reason to disturb the administrative judge’s weighing of the evidence
in this regard and, thus, affirm the conclusion that the appellant has not
established entitlement to a disability annuity.2
2 Contrary to the administrative judge’s finding in the initial decision, the record
reflects that the appellant requested an accommodation on or before March 19, 2014,
and that her supervisor asked her to attach her most recent medical documentation to2
On appeal, the appellant claimed that OPM and/or her employing agency
discriminated against her because of her status as a veteran, in violation of the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). White v. Office of
Personnel Management , MSPB Docket No. AT-844E-17-0640-I-1, Initial Appeal
File (IAF), Tab 4 at 1. The administrative judge directed the filing of a separate
stand-alone USERRA appeal but that did not occur. IAF, Tab 5 at 2. The
administrative judge incorrectly concluded that the appellant’s USERRA claim
against OPM had to be adjudicated as a stand-alone appeal, but we discern no
apparent harm to the appellant’s substantive rights because there is no statutory
or regulatory time limit for filing a USERRA appeal . See Panter v. Department
of the Air Force , 22 M.S.P.R. 281, 282 (1984); 5 C.F.R. §§ 1208.12, 1208.16.
Accordingly, although the appellant does not reassert her USERRA claim on
review, she can file a new USERRA appeal with the Atlanta Regional Office
against OPM and/or her employing agency if she would like to pursue this claim.
On appeal, the appellant also alleged that her employing agency failed to
comply with the settlement agreement in her removal appeal, which was handled
by the Dallas Regional Office. IAF, Tab 4 at 1. The administrative judge
intended to forward her claim against her employing agency to the Dallas
Regional Office for docketing as a petition for enforcement but that did not occur.
IAF, Tab 5 at 2. The appellant has not raised this issue on review and may not
want to pursue it. In the alternative, she can file a petition for enforcement with
her request. White v. Office of Personnel Management , MSPB Docket No. AT-844E-
17-0640-I-1, Initial Appeal File, Tab 7 at 31. She made that request at least 6 months
before she applied for disability retirement in September 2014. Id. at 23-38.
Regardless, the administrative judge’s factual error has not prejudiced the appellant’s
substantive rights and provides no basis for reversing the initial decision because she
was required to meet all of the criteria stated in 5 C.F.R. § 844.103(a) to qualify for a
FERS disability annuity and she failed to prove that she had a disabling medical
condition under FERS that required accommodation. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).3
the Dallas Regional Office within 30 days of issuance of this Final Order. See
5 C.F.R. §§ 1201.181-1201.183.
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 you wish to challenge the Board’s rulings on your whistleblower claims6
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.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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | White_Gloria_R_AT-844E-17-0640-I-2_Final_Order.pdf | 2024-01-26 | GLORIA R. WHITE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-17-0640-I-2, January 26, 2024 | AT-844E-17-0640-I-2 | NP |
2,484 | https://www.mspb.gov/decisions/nonprecedential/Bailey_Cynthia_B_AT-0842-20-0387-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA B. BAILEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0842-20-0387-I-2
DATE: January 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cynthia B. Bailey , Whiteville, North Carolina, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of an Office of Personnel
Management (OPM) final decision after OPM rescinded its decision during the
pendency of the appeal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that OPM’s rescission of a final
decision divests the Board of jurisdiction over that decision. See Frank v. Office
of Personnel Management , 113 M.S.P.R. 164, ¶ 7 (2010); Morin v. Office of
Personnel Management , 107 M.S.P.R. 534, ¶ 8 (2007), aff’d, 287 F. App’x 864
(Fed. Cir. 2008). On review, the appellant does not dispute that OPM rescinded
the final decision or identify any basis to find that the Board retains jurisdiction
over this appeal despite that rescission. Instead, she asserts that she is entitled to
full survivor benefits and disputes the notarized survivor benefit election form.
Petition for Review (PFR) File, Tab 2 at 6-8. Her arguments regarding the merits
of OPM’s final decision provide no basis to disturb the initial decision.2 See
Sapla v. Department of the Navy , 118 M.S.P.R. 551, ¶ 7 (2012) (finding that an
appellant’s arguments on review regarding the merits of an agency action were
not relevant to whether the Board had jurisdiction over an appeal).
If the appellant is dissatisfied with a new OPM decision regarding her
award of benefits, she may appeal it to the Board. See 5 C.F.R. §§ 831.109,
2 Because OPM’s rescission of its final decision in this matter divests the Board of
jurisdiction, we need not address the appellant’s claims that OPM failed to properly
serve her with documents. PFR File, Tab 4 at 5-8. 2
831.110. Any future appeal must be filed within the time limits set forth in the
Board’s regulations.3 See 5 C.F.R. § 1201.22.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 The appellant filed a motion after the close of the record on review requesting leave to
file a motion to compel discovery from OPM. 5 C.F.R. § 1201.114(k); PFR File,
Tab 12. 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. 5 C.F.R. § 1201.114(k). Because the appellant’s motion fails to show how her
motion to compel discovery would be material to the dispositive issue of jurisdiction, it
is denied.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Bailey_Cynthia_B_AT-0842-20-0387-I-2_Final_Order.pdf | 2024-01-26 | CYNTHIA B. BAILEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0842-20-0387-I-2, January 26, 2024 | AT-0842-20-0387-I-2 | NP |
2,485 | https://www.mspb.gov/decisions/nonprecedential/Hoover-Johnson_Florence_W_PH-0831-18-0276-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FLORENCE W. HOOVER-JOHNSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0831-18-0276-I-1
DATE: January 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Florence W. Hoover-Johnson , Rockland, Maine, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the final decision by the Office of Personnel Management (OPM)
denying her application for annuity benefits under the Civil Service Retirement
System because she applied for and received a refund of her retirement
deductions in 1988. On petition for review, the appellant argues, as she did
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
below, that she did not receive adequate assistance from her employing agency
when she separated from Federal service and did not understand the consequences
of requesting a refund of her retirement deductions. She further argues that,
under the circumstances present here, she should be allowed to redeposit her
withdrawn retirement deductions and that OPM should then grant her application
for annuity benefits. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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
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
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.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Hoover-Johnson_Florence_W_PH-0831-18-0276-I-1_Final_Order.pdf | 2024-01-26 | null | PH-0831-18-0276-I-1 | NP |
2,486 | https://www.mspb.gov/decisions/nonprecedential/Gates_Ralph_CH-0752-18-0479-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RALPH GATES, III,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-18-0479-I-1
DATE: January 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ralph Gates, III , Warrensville, Ohio, pro se.
Amber Groghan , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction the appeal of a removal action taken pursuant to
a last chance settlement agreement. On petition for review,2 the appellant argues
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 After the record closed on review, the appellant filed a motion for leave to file an
allegedly favorable decision by the Ohio Unemployment Compensation Review
Commission. Petition for Review (PFR) File, Tab 7 at 6. After we granted his motion,
PFR File, Tab 9, the appellant submitted the state decision, compact discs, and multiple
that he complied with the agreement, the agency materially breached the
agreement or acted in bad faith, and he did not voluntarily enter into the
agreement. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
audio files of the hearing, PFR File, Tabs 10-12. The tribunal awarded the appellant
unemployment benefits, but we are not persuaded that the state decision compels a
different result in this case. Although the state decision was mailed to the appellant on
January 16, 2019, PFR File, Tab 10 at 9, he did not seek leave from the Board to submit
such evidence until January 21, 2020, and offered no explanation as to why he waited
over a year to do so. To the extent he is alleging that he made such attempts in 2019,
the Office of the Clerk of the Board clearly notified him at the time of each submission
that his filings were rejected on the grounds that they did not conform to the Board’s
regulations. PFR File, Tabs 4-6. Each notice rejecting a submission cited to a
provision of the Board’s regulations regarding how to make an additional submission.
Id.; see 5 C.F.R. § 1201.114(a)(5). In addition, the state decision is not binding on the
Board, and the standard applied by the Ohio Commission was whether the appellant was
discharged without just cause in connection with work, a wholly different issue than
whether the appellant’s waiver of his appeal rights in the last chance settlement
agreement was enforceable. See Raco v. Social Security Administration , 117 M.S.P.R.
1, ¶ 23 (2011) (stating that state unemployment tribunal decisions are not binding on the
Board); McCain v. U.S. Postal Service , 57 M.S.P.R. 604, 608 (1993) (stating that state
unemployment compensation decisions will not be given preclusive effect before the
Board). Thus, we find that the appellant’s evidence is not material. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (noting 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);
5 C.F.R. § 1201.114(k) (stating that, once the record closes on review, no additional
evidence or argument will be accepted unless it is new and material). 2
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Gates_Ralph_CH-0752-18-0479-I-1_Final_Order.pdf | 2024-01-26 | null | CH-0752-18-0479-I-1 | NP |
2,487 | https://www.mspb.gov/decisions/nonprecedential/Cai_Li_Y_NY-0752-22-0142-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LI YE CAI,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-0752-22-0142-I-1
DATE: January 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Li Ye Cai , Middle Village, New York, pro se.
Elizabeth Connelly , Esquire, and Frank Charles Sharp , Esquire, New York,
New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
mitigated his removal under chapter 75 to a 30-day suspension. For the reasons
discussed below, we DENY the petition for review. We MODIFY the initial
decision to find that the agency proved a nexus between the appellant’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).
misconduct and the efficiency of the service, and to supplement the
administrative judge’s affirmative defense analysis to find that the appellant
failed to establish his claim of equal employment opportunity (EEO) reprisal,
failed to establish that he made protected disclosures under 5 U.S.C. § 2302(b)
(8), and established that he engaged in additional protected whistleblower activity
under 5 U.S.C. § 2302(b)(9), as well as to supplement the penalty analysis. In
addition to modifying the initial decision as described above, we also REVERSE
the administrative judge’s finding that the appellant proved that his age was a
motivating factor in the removal. We otherwise AFFIRM the initial decision.
BACKGROUND
Effective August 31, 2021, the agency removed the appellant from his
position as a GS-12 Information Technology Specialist in the Office of
Information and Technology (OIT) for Customs and Border Protection (CBP),
domiciled at John F. Kennedy International Airport. Initial Appeal File (IAF),
Tab 1 at 1, Tab 9 at 160-63. The removal was based on charges of failure to
follow supervisory instructions (two specifications), neglect of duty (one
specification), and lack of candor (four specifications). IAF, Tab 9 at 155-56,
160-61. In its decision, the agency informed the appellant that he could challenge
the removal decision by filing a grievance; requesting that the union invoke
arbitration on his behalf; appealing directly to the Board; filing a discrimination
complaint through the agency’s EEO office; or filing a whistleblower reprisal
complaint with the Office of Special Counsel (OSC). IAF, Tab 9 at 161-63. The
agency advised him that electing any one of these options could “preclude[] [him]
from pursuing remedies through [the remaining forums] with respect to the same
matter.” Id.
As to the failure to follow supervisory instructions charge, the agency
alleged that, on September 25, 2019, the appellant failed to spend the entirety of
his duty hours at the location and performing the tasks assigned by the Field2
Technology Supervisor (FTS). Id. at 155. As to the neglect of duty charge, the
agency alleged that the appellant failed to complete the mandatory 2020 CBP
Privileged User Role Based Training by the July 17, 2020 deadline, resulting in
his account being disabled and affecting his ability to perform the full range of
his duties. Id. As to the lack of candor charge, as relevant to our discussion here,
the agency alleged that the appellant submitted a memorandum to the Regional
Director falsely claiming that he did not know that the training was mandatory
and that he was only made aware of the requirement to complete the training on
August 18, 2020. Id. at 156.
Prior to his removal, on August 2, 2021, the appellant had initiated contact
with his agency’s EEO office over his proposed removal, Agency No. HS-CPB-
01783-2021. IAF, Tab 1 at 15. According to the EEO counselor’s statement,
within 45 days of his removal, the appellant contacted the agency’s EEO
counselor to include his removal in his complaint. IAF, Tab 9 at 130. On
October 29, 2021, the agency issued the appellant a notice of right to file a formal
complaint of discrimination over his removal, which he timely filed on
November 11, 2021.1 IAF, Tab 1 at 16, Tab 9 at 132.
On or about December 30, 2021, the appellant filed a complaint with OSC,
which was assigned OSC File No. MA-22-00502, wherein he alleged that the
agency retaliated against him for his protected disclosures or activities by
proposing his removal, offering him a last chance agreement, and removing him.
Cai v. Department of Homeland Security , MSPB Docket No. NY-1221-22-0060-
W-1, Initial Appeal File (0060 IAF), Tab 5 at 5, 10-32, Tab 1 at 4. On
January 21, 2022, OSC issued a letter notifying the appellant that it was
terminating its investigation into his complaint and informing him that he could
1 On November 24, 2021, the appellant also filed his first chapter 75 appeal with the
Board over his removal. Cai v. Department of Homeland Security , MSPB Docket
No. NY-0752-22-0020-I-1, Initial Appeal File (0020 IAF), Tab 1. On December 13,
2021, the administrative judge issued a decision dismissing the appeal as untimely,
which became final after neither party filed a petition for review. 0020 IAF, Tab 7
at 1, 4. 3
seek corrective action by filing an individual right of action (IRA) appeal with the
Board. 0060 IAF, Tab 1 at 4-5. On January 24, 2022, the appellant filed an IRA
appeal with the Board over that complaint. 0060 IAF, Tab 1. On May 16, 2022,
an administrative judge issued an initial decision dismissing that appeal. 0060
IAF, Tab 17, Initial Decision at 2, 15. The appellant has filed a petition for
review over that appeal. Cai v. Department of Homeland Security , MSPB Docket
No. NY-1221-22-0060-W-1, Petition for Review File , Tab 1.
Subsequently, on June 29, 2022, the agency issued a Final Agency Decision
(FAD) on the appellant’s EEO complaint, concluding that the appellant failed to
prove that the agency discriminated against him. IAF, Tab 1 at 20. In its FAD,
the agency advised him that he could file an appeal with the Board within
30 days. Id. at 21.
On July 18, 2022, the appellant filed the instant chapter 75 appeal
challenging his removal and raising affirmative defenses of whistleblower
reprisal, EEO reprisal, and age discrimination. Id. at 3, 5. The agency moved to
dismiss the appellant’s whistleblower reprisal affirmative defense, arguing that
the issue of whether the appellant had been subjected to whistleblower reprisal
when the agency removed him was barred by res judicata as it had already been
decided in the 0060 IRA appeal. IAF, Tab 19 at 6. The administrative judge
denied the agency’s motion, without providing a basis for her ruling. IAF,
Tab 28 at 4.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision mitigating the removal to a 30-day suspension. IAF,
Tab 1 at 2; ID at 1, 14. She found that the agency failed to prove the charge of
failure to follow supervisory instructions. ID at 3. She sustained the charge of
neglect of duty, reasoning that the appellant neglected to complete the specified
training on time and provided inconsistent explanations about whether he knew
the training was mandatory. ID at 4. The administrative judge determined that
the agency proved only the last of its four specifications of the lack of candor4
charge. ID at 5-6. Specifically, she found that the appellant lacked candor when
he stated to the Regional Director that he did not know he was required to
complete the training until August 18, 2020. Id. at 6.
The administrative judge found that the appellant proved that his age was a
motivating factor in his removal. ID at 10-11. Nevertheless, she concluded that
the appellant failed to prove that his age was a “but-for” cause of his removal. ID
at 11. She did not specifically make a finding as to his claim of EEO reprisal. Id.
As to his whistleblower reprisal affirmative defense, the administrative
judge found that the appellant proved that his OSC complaints were a
contributing factor in his removal. ID at 12-13. She concluded that the agency
presented clear and convincing evidence that it would have removed the appellant
absent his whistleblowing activity. ID at 13. The administrative judge mitigated
the removal penalty to a 30-day suspension. ID at 7-8.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 2. The agency has filed a response in opposition to the appellant’s
petition for review, and the appellant has filed a reply. PFR File, Tabs 3-4.
Additionally, the appellant has filed a petition for enforcement of the
administrative judge’s interim relief order. PFR File, Tab 5. The agency has
filed a response in opposition to the appellant’s petition for enforcement; the
appellant filed a reply; and the agency filed an update on its compliance with the
interim relief order. PFR File, Tabs 6-8.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over this mixed-case removal appeal.
Although not raised by either party on review, as a preliminary matter, we
address the issue of the appellant’s election of forum over his removal action in
light of his multiple appeals with the Board and his claims that his removal was
the result of both EEO discrimination and retaliation and whistleblower reprisal.
IAF, Tab 1 at 4-5, Tab 18 at 5-7. We find that the appellant made a binding5
election to challenge his removal as a mixed-case complaint, and therefore, the
adjudication of the merits of his removal in the instant chapter 75 appeal is
proper.
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
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 generally is 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, he may file a Board appeal. 5 U.S.C. § 7702(a)(2); 5 C.F.R.
§ 1201.151(a)(1). As applicable here, the deadline for filing with the Board is
30 days from receiving the FAD. 5 C.F.R. § 1201.154(b)(1). Such an appeal is
known as a “mixed case,” and the Board will adjudicate both the underlying
appealable action and the discrimination claims.2 Wilson v. Department of
Veterans Affairs , 2022 MSPB 7, ¶¶ 12, 14.
2 Under 5 U.S.C. § 7121(g), an employee subjected to an action appealable to the Board
who alleges that the contested action was taken in reprisal for whistleblowing generally
may elect to pursue a remedy through only one of the following remedial processes:
(1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under an
applicable negotiated grievance procedure; or (3) a complaint seeking corrective action
from OSC. 5 U.S.C. §§ 1214(a)(3), 1221(a), 7121(g)(2)-(3); 5 C.F.R. § 1209.2(d);
Requena v. Department of Homeland Security , 2022 MSPB 39, ¶ 7. The remedy first
sought by an aggrieved employee is deemed an election of that procedure and precludes
pursuing the matter in other fora. Requena, 2022 MSPB 39, ¶ 8. Section 7121(g)
“applies with respect to a prohibited personnel practice other than” a claim of EEO
discrimination or reprisal. 5 U.S.C. §§ 2302(b)(1), 7121(d), (g)(1). Assuming, without
deciding, that an appellant’s filing of an OSC complaint before filing an EEO complaint
divests the Board of chapter 75 jurisdiction over a mixed-case appeal, it would not
impact the outcome here. The appellant filed his EEO complaint over his removal first
on November 11, 2021, before he filed an OSC complaint over his removal on or about
December 30, 2021. IAF, Tab 1 at 15; 0060 IAF, Tab 5 at 10-32. 6
Here, the agency issued the removal decision on August 27, 2021, and it
included notice of the appellant’s right to challenge his removal through the EEO
process, a grievance, or a direct appeal to the Board. IAF, Tab 9 at 161-63. It
also advised him that choosing one of these options might preclude the others.
Id. The record reflects that the appellant timely filed a formal EEO complaint
challenging his removal on November 11, 2021, which the agency accepted for
investigation.3 IAF, Tab 1 at 16, Tab 9 at 132. The agency issued its FAD
denying his EEO complaint on June 29, 2022, and the appellant timely filed the
instant appeal less than 30 days later. IAF, Tab 1 at 15 -20. Accordingly, his
appeal was timely filed. See 5 C.F.R. § 1201.154(b)(1). Moreover, at the time of
his removal, he was a nonpreference eligible, permanent competitive service
employee with over 1 year of service. IAF, Tab 1 at 1. Therefore, the Board has
jurisdiction over his mixed-case appeal. 5 U.S.C. §§ 7511(a)(1)(A), 7512(1),
7702(a)(1). Next, we turn to the appellant’s arguments on review.
On review, the appellant disagrees with the penalty and argues that the
administrative judge erred in (1) sustaining specification 4 of the lack of candor
charge; (2) finding that the appellant’s prior EEO activity was not a “but for”
cause of the discipline; and (3) finding that the agency demonstrated that it would
have issued the removal notwithstanding the appellant’s whistleblowing activity.
PFR File, Tab 1 at 4-5. The appellant also appears to reargue that the agency
subjected him to age discrimination with respect to his work schedule in March
2020. Id. at 8-9. The parties do not dispute the administrative judge’s findings
sustaining the neglect of duty charge and not sustaining the failure to follow
supervisory instruction charge and specifications 1-3 of the lack of candor charge,
and we decline to disturb them.
3 Although he was covered by a collective bargaining agreement, the appellant did not
file a grievance of his removal. IAF, Tab 13 at 23.7
The appellant has not provided a basis to disturb the administrative judge’s
conclusion that the agency proved specification 4 of the lack of candor charge.
To prove lack of candor, the agency must show that the employee
knowingly gave incorrect or incomplete information. Fargnoli v. Department of
Commerce, 123 M.S.P.R. 330, ¶ 17 (2016). When an underlying misconduct
charge has been proven, a concealment or lack of candor charge based on the
appellant’s failure to respond truthfully or completely when questioned about
matters relating to the proven misconduct must also be sustained. Social Security
Administration v. Steverson , 111 M.S.P.R. 649, ¶ 12 (2009), aff’d per curiam ,
383 F. App’x 939 (Fed. Cir. 2010).
The administrative judge found that the appellant submitted an unsworn
memorandum to the Regional Director that lacked candor because, as claimed by
the agency, the appellant’s statement that he did not know the 2020 CBP
Privileged User Role Based Training was mandatory until August 18, 2020, was
contradicted by emails from the Regional Director and the FTS informing the
appellant and others to complete the mandatory training by July 17, 2020. ID
at 6; IAF, Tab 6 at 120. The administrative judge did not credit the appellant’s
hearing testimony that he did not know the training was mandatory because it was
not listed as mandatory training in the agency’s training database. ID at 4, 6. In
so doing, she reasoned that the appellant’s testimony was inconsistent with his
written reply to the proposed removal, in which he stated that he misunderstood
the instruction because English is not his first language. ID at 4; IAF, Tab 9
at 138.
On review, the appellant argues that the administrative judge “overlooked”
or perhaps did not properly weigh the evidence as to this specification. PFR File,
Tab 1 at 6-8. He reargues that he did not know the training was mandatory
because it was not listed on his mandatory training list within the agency’s
Performance and Learning Management System (PALMS) and asserts that it was
not required in 2018. Id. at 6-7. Therefore, he was not “knowingly untruthful” in8
his statement to the Regional Director. Id. In resolving credibility issues, the
trier of fact must identify the factual questions in dispute, summarize the
evidence on each disputed question, state which version she believes, and explain
in detail why she found the chosen version more credible. Hillen v. Department
of the Army, 35 M.S.P.R. 453, 458 (1987). Among the factors an administrative
judge must consider in resolving credibility disputes is any prior inconsistent
statement by the witness, the contradiction of his version of events by other
evidence, and the inherent improbability of his version, as well as his demeanor.
Id.
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. Haebe
v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the
administrative judge correctly identified that the central issue to establishing the
charge is whether the appellant knew he must complete the training before
August 18, 2020. ID at 6. We discern no basis to disturb the administrative
judge’s finding that he did.
As the administrative judge observed, the agency sent multiple emails
reminding the appellant of this training requirement. ID at 4. Specifically, the
agency sent three emails before the July 17, 2020 deadline, informing the
appellant in bold that the training was “mandatory.” IAF, Tab 6 at 121, 126 -27.
While one email was to a group of employees, the appellant’s supervisor sent two
of those emails directly to the appellant alone. Id. The appellant acknowledged
that he received emails advising him of the mandatory nature of the training.
IAF, Tab 31 at 5; PFR File, Tab 1 at 7.
As the administrative judge observed, the appellant’s claim that he did not
know the training was mandatory because it was not designated as such in
PALMS was contradicted by his response to the proposed removal that he9
misunderstood the instruction due to the stress caused by the pandemic and
because “English is his second language.” ID at 4; IAF, Tab 9 at 137-38. She
also reasoned that the appellant’s version of events was, in essence, implausible
because he had previously completed the training in 2016, 2017, and 2019. ID
at 6; IAF, Tab 9 at 181. Even when, as here, an administrative judge does not
explicitly make observations regarding the appellant’s demeanor, her findings as
to the credibility of his testimony are necessarily intertwined with an analysis of
his demeanor at trial, and the Board must defer to them. See Purifoy v.
Department of Veterans Affairs , 838 F.3d 1367, 1372 (Fed. Cir. 2016) (finding
that the Board erred in substituting its judgment as to a petitioner’s potential for
rehabilitation for that of an administrative judge because the administrative
judge’s findings were made after observing the appellant’s live testimony and,
even though the administrative judge did not expressly discuss demeanor, her
“findings about [the petitioner’s] propensity for rehabilitation are necessarily
intertwined with issues of credibility and an analysis of his demeanor at trial”).
Accordingly, we decline to disturb the administrative judge’s finding that the
agency proved that the appellant knowingly made an incorrect claim in an
August 19, 2020 statement to the Regional Director that he “was not aware of the
mandatory nature of the course.” ID at 4, 6; IAF, Tab 6 at 120.
As to the appellant’s claim that the training was not mandatory in 2018, it
does not appear that he raised this argument below. PFR File, Tab 1 at 7; IAF,
Tab 24 at 6-7, Tab 31 at 5. Further, he does not indicate whether there is
evidence to support this claim. PFR File, Tab 1 at 7. In any event, the fact that
the training was not required for 2018 does not, as he claims, give credence to his
assertion that he did not know it was mandatory in 2020. Id.
On review, the appellant reargues that more than 50 other employees
nationwide failed to timely complete the same training based on the agency’s
alleged failure to designate the training as mandatory in PALMS. PFR File,
Tab 1 at 7. He relies on an email he and various other employees received for not10
taking the “MANDATORY 2019 Privileged User Training course” and instructing
them to complete it immediately. IAF, Tab 24 at 30 (capitalization in the
original); PFR File, Tab 1 at 7. However, as the agency correctly argues, that
email concerned the 2019 training, not the 2020 training at issue in this appeal.
IAF, Tab 24 at 30; PFR File, Tab 3 at 11. Indeed, this evidence further supports
the administrative judge’s finding that the training was a recurring requirement of
the appellant’s job. Thus, we decline to disturb the administrative judge’s
conclusion that the appellant knew, prior to August 18, 2020, that the training
was mandatory. Accordingly, we discern no basis to disturb the administrative
judge’s finding that the agency proved specification 4 and the lack of candor
charge. See Miller v. U.S. Postal Service , 117 M.S.P.R. 557, ¶ 17 (2012)
(explaining that when there is one charge with multiple factual specifications,
proof of one or more, but not all, of the supporting specifications is sufficient to
sustain the charge (citation omitted)).
We reverse the administrative judge’s finding that the appellant proved that his
age was a motivating factor in his removal, and modify the initial decision to find
that the appellant also failed to prove that his prior EEO activity was a motivating
factor in his removal.
The methods by which an appellant may prove a claim of discrimination or
reprisal are: (1) direct evidence; (2) circumstantial evidence, which may include
(a) evidence of “suspicious timing, ambiguous statements oral or written,
behavior toward or comments directed at other employees in the protected group,
and other bits and pieces from which an inference of discriminatory intent might
be drawn,” also known as “convincing mosaic”; (b) comparator evidence,
consisting of “evidence, whether or not rigorously statistical, that employees
similarly situated to the plaintiff other than in the characteristic . . . on which an
employer is forbidden to base a difference in treatment received systematically
better treatment”; (c) evidence that the agency’s stated reason for its action is
“unworthy of belief, a mere pretext for discrimination” (i.e., the burden-shifting
standard under McDonnell Douglas Corporation v. Green , 411 U.S. 792, 802 -0411
(1973)); and (3) some combination of direct and indirect evidence. Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶¶ 24, 30 (quoting Troupe v.
May Department Stores Company , 20 F.3d 734, 736-37 (7th Cir. 1994), and citing
Ortiz v. Werner Enterprises , Incorporated, 834 F.3d 760, 764-65 (7th Cir. 2016)).
These types of evidence, standing alone or together, could be sufficient to prove
status-based discrimination. Id.
We reverse the administrative judge’s finding that the appellant proved
that his age was a motivating factor in his removal.
The administrative judge found that the appellant proved his age was a
motivating factor in his removal, but failed to prove that it was a but-for cause.
ID at 10-11. She reasoned that it was “significant that the sustained charges date
back to July 2020, whereas management did not take disciplinary action until
January 2021.” ID at 10-11. We disagree that the timing between the appellant’s
misconduct and his removal was suspicious.
The alleged incidents underlying the appellant’s proposed removal took
place between September 25, 2019, and August 19, 2020. IAF, Tab 9 at 155-56.
The agency requested that its Office of Professional Responsibility (OPR) begin
an administrative inquiry into the appellant’s alleged misconduct on
November 19, 2019, which is about 2 months after the September 25, 2019
incident underlying the failure to follow instruction charge, and not in June 2020
as the appellant alleges on review. IAF, Tab 10 at 47, 58; PFR File, Tab 1 at 9.
The agency followed up with OPR in December 2019, and OPR opened its
investigation into the matter on January 7, 2020. Id. at 55-56. The inquiry report
was not completed until August 31, 2020. Id. at 47. Thus, the appellant’s
January 14, 2021 proposed removal was issued 4 1/2 months after the conclusion
of the inquiry. Under these circumstances, we do not agree with the
administrative judge that the timing of the agency’s response to the appellant’s
misconduct was suspicious. Accordingly, we find that the appellant did not prove
that his age was a motivating factor in his removal. 12
The appellant’s claim relating to his schedule does not provide a basis for
granting review regarding his age discrimination and EEO reprisal claims.
On review, the appellant again argues that the administrative judge
“overlooked” or did not properly weigh the evidence he presented below that the
OIT Area Manager treated two younger employees in his building more favorably
in March 2020 when she issued a weekly schedule instructing the appellant, who
at the time was about 72 years old and considered high-risk for COVID-19, to
work in the office twice as often as his two younger coworkers. PFR File, Tab 1
at 8-9; IAF, Tab 11 at 139. The administrative judge did not address this claim.
We modify the initial decision to do so here.
To the extent the appellant is arguing that the March 2020 schedule itself is
discriminatory or retaliatory, an appellant’s assignment of a particular schedule is
not an appealable action. Prohibited personnel practices under 5 U.S.C.
§ 2302(b), including discrimination claims, are not an independent source of
Board jurisdiction. See Lethridge v. U.S. Postal Service , 99 M.S.P.R. 675,
¶¶ 8-13 (2005) (holding that the Board does not have jurisdiction over
discrimination claims raised in connection with a proposed removal or other
non-appealable action, even when those claims are inextricably intertwined with
an otherwise appealable action). Therefore, we lack jurisdiction over the
appellant’s schedule.
To the extent the appellant is alleging that the March 2020 telework
schedule is part of a “convincing mosaic” or evidence of disparate treatment
demonstrating discriminatory intent by his management chain against individuals
based on their age and prior EEO activity, we are also not persuaded. See
Pridgen, 2022 MSPB 31, ¶ 24. The schedule at issue was sent by the OIT Area
Manager, who listed on the schedule 10 employees assigned in “Building 77,”
“Terminals Day,” and “Terminals Night.” IAF, Tab 11 at 138-39. The schedule
shows that, for the workweek starting with March 23, 2020, through the
workweek starting with April 13, 2020, the appellant was scheduled to work13
on-site twice as often as his two younger coworkers in “Building 77.” Id.
Further, it shows that one other employee working in “Terminals Day” and all
four employees working in “Terminals Night” were also scheduled to work on-
site twice as many times as the appellant’s other two “Building 77” coworkers.
Id. at 138-39.
The appellant has not explained why he believes he is similarly situated to
the employees in Building 77 or, conversely, why he is not similarly situated to
the employees on Terminals Day or Terminals Night. The appellant has not
presented any evidence or argument below or on review regarding the age or EEO
activity of the “Terminals Day” and “Terminals Night” employees, and therefore
we cannot conclude that management was generally treating older employees and
employees with prior EEO activity, like the appellant, more harshly by requiring
that they work on-site twice as often as younger employees.4 To the contrary, on
April 3, 2020, after the appellant emailed his managers to inform them that he
was at higher risk of COVID due to his age, the agency issued a corrected
schedule equalizing the in-office time of the appellant and his colleagues.
0060 IAF, Tab 15 at 64-65. Thus, we find that the appellant has not shown that
the schedule is part of a “convincing mosaic” of discriminatory intent, nor that it
otherwise constitutes comparator evidence.
4 The copy of this schedule that the agency submitted below is cut off at the right
margin. IAF File, Tab 11 at 139. In his reply to the agency’s response to the petition
for review, the appellant attaches a full copy of the weekly schedule, which he alleges
was not available before the record closed below. PFR File, Tab 4 at 5-8. The
appellant’s document shows an additional 4 weeks of the agency’s on-site scheduling,
for the workweek beginning April 20, 2020, through the workweek beginning May 11,
2020. Id. at 6. We decline to grant review based on this allegedly new evidence. The
Board will not grant a petition for review based on new evidence absent a showing that
it is of sufficient weight to warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). Here, the
copy of the schedule submitted by the appellant on review is incomplete because it is
missing the last line. PFR File, Tab 4 at 6. Further, the information it provides does
not warrant a different outcome in this case, as it shows that, for an additional 4 weeks,
other employees in Terminals Day and Terminals Night were assigned to come into the
office as frequently as the appellant. 14
We modify the initial decision to find that the appellant failed to prove that
his prior EEO activity was a motivating factor in his removal.
The administrative judge did not make a finding as to the appellant’s claim
of EEO reprisal. ID at 9-11. On review, the appellant reasserts that the agency
removed him in retaliation for filing EEO complaints. PFR File, Tab 1 at 8-11.
He argues that the June 2020 investigation into his misconduct evidences
retaliation because he filed an EEO complaint (Agency No. HS-CBP-01716-2020)
around March or June 2020. PFR File, Tab 1 at 9; IAF, Tab 18 at 6. As
discussed above, and expanded upon below, we do not find the timing suspicious.
IAF, Tab 10 at 47, 58; PFR File, Tab 1 at 9.
The appellant did not file his 2020 formal EEO complaint against the FTS
and the OIT Area Manager until September 28, 2020, well after the inquiry into
his alleged misconduct began in November 2019, and not in March or June 2020
as he claims. Cai v. Department of Homeland Security , MSPB Docket No. NY-
1221-21-0142-W-1 (2021 IRA appeal), Initial Appeal File (0142-W-1 IAF), Tab 6
at 2, 8. Even if we assume, without the appellant alleging, that in March 2020 he
participated in informal EEO counseling over his 2020 EEO complaint, we still
do not find suspicious timing because any March 2020 protected activity still
postdates the November 2019 start of the investigation into his misconduct.
On review, the appellant reargues that his removal was retaliation for other
prior EEO activity, including a 2013 EEO complaint against the FTS and OIT
Area Manager, a 2014 complaint against his then first-level supervisor and the
OIT Area Manager, and a 2016 complaint against the same then first -level
supervisor, a second-level supervisor, and the OIT Area Manager. IAF, Tab 31
at 5-6, 10-11; PFR File, Tab 1 at 8. However, at least 3 years elapsed between
the 2016 EEO complaint and the initiation of the investigation into the appellant’s
misconduct in November 2019. This period is too distant to find temporal
proximity between the removal and the appellant’s prior EEO complaints. See
Pridgen, 2022 MSPB 31, ¶¶ 3, 12, 43, 48 (finding that the timing of the agency’s15
decision to remove an appellant in 2014, after she requested reasonable
accommodation and filed an EEO complaint in 2010, was insufficient to establish
retaliation); Oulianova v. Pension Benefit Guaranty Corporation , 120 M.S.P.R.
22, ¶¶ 2, 15 (2013) (finding no temporal proximity between the appellant’s 2007
EEO activity and a 2010 decision to deny a within-grade increase).
The appellant’s remaining arguments generally attack the testimony of the
OIT Area Manager, the FTS, and another supervisor that the appellant failed to
follow supervisory instructions on September 25, 2019. PFR File, Tab 1; IAF,
Tab 24 at 8. For instance, the appellant argues that the FTS falsely testified that
he discussed the installation of Port Radiation Inspection, Detection & Evaluation
system (PRIDE) icons with an employee on September 25th, while that employee
denied that he spoke to the FTS on that day. PFR File, Tab 1 at 8-10. He also
refers to six instances in which the agency’s witnesses allegedly made
contradictory statements with respect to the failure to follow supervisory
instruction charge. IAF, Tab 24 at 8-9.
As discussed above, evidence that the agency’s stated reason for its action
is “unworthy of belief, a mere pretext for discrimination” may be used to prove
status-based discrimination or retaliation. Pridgen, 2022 MSPB 31, ¶ 24. The
administrative judge found, and the parties do not dispute on review, that the
agency did not prove its charge of failure to follow supervisory instructions. ID
at 3. However, she based her finding on her determination that the charge was
“inaccurately drafted” rather than that the agency’s witnesses lacked credibility.
ID at 13. Both the deciding official and the FTS, who initiated the inquiry into
the appellant’s alleged misconduct, denied that the appellant’s age and prior EEO
activity played a factor in his removal. IAF, Tab 7 at 130, 136. We decline to
disturb the administrative judge’s implicit determination that these two witnesses’
explanation for their actions were credible.
Lastly, the appellant reargues that the Regional Director essentially
provided a false statement when he emailed the appellant in July 2020 requesting16
a statement for “a harassment complaint” against the OIT Area Manager, which
he claimed he was investigating. IAF, Tab 18 at 55, Tab 24 at 16; PFR File,
Tab 1 at 10. It appears that the appellant believes that the Regional Director was
necessarily talking about the appellant’s EEO complaint (Agency No. HS-CBP-
01716-2020) when he was referring to “a harassment complaint,” and that the
Regional Director’s claim that he was investigating it was “false” because the
agency would not have put the subject of an investigation (i.e., the Regional
Director) in charge of the investigation. Id. The appellant’s argument is unclear
and, without more, appears to be mere speculation about the Regional Director’s
motives. Id. Similarly, he reraises a claim that “someone in the IT department”
retaliated against him by providing a false statement to the NY State Department
of Labor saying that he quit because he did not want to work on-site. IAF,
Tab 24 at 16-17; PFR File, Tab 1 at 10. The appellant does not identify this
individual, nor allege why he believes he or she would be motivated to retaliate
against him. Id. The Board has held that an appellant’s speculation about the
agency’s motives is not probative of the agency’s motive. Wingate v. U.S. Postal
Service, 118 M.S.P.R. 566, ¶ 9 (2012). Thus, we also find these arguments
unpersuasive.
Accordingly, we find that the appellant did not prove that his age was a
motivating factor in his removal. We also modify the initial decision to find that
the appellant also failed to prove that his prior EEO activity was a motivating
factor in his removal.
We agree with the administrative judge that the agency proved by clear and
convincing evidence that it would have removed the appellant notwithstanding his
whistleblower activity, and we supplement the analysis here.
In the initial decision, the administrative judge found that the appellant
proved a prima facie case of whistleblower reprisal, i.e., that his OSC complaints
were a contributing factor in his removal. ID at 12-13. She did not identify
which OSC complaints she viewed as protected activity. The parties do not17
dispute this finding on review; however, the appellant argues that the
administrative judge improperly considered only his OSC activities and failed to
consider all of his protected disclosures and activities in her finding. PFR File,
Tab 1 at 12. We agree, and supplement the administrative judge’s findings
accordingly. Nevertheless, we ultimately agree with the administrative judge’s
conclusion that the agency proved by clear and convincing evidence that it would
have removed the appellant notwithstanding his whistleblower activities. ID
at 12-13.
To prevail on an affirmative defense of reprisal for making a disclosure
under 5 U.S.C. § 2302(b)(8) or engaging in an activity under sections 2302(b)(8)
and (b)(9)(A)(i), (B), (C), or (D), the appellant must prove by preponderant
evidence that his disclosure or activity was protected under these provisions and
that it was a contributing factor in the adverse action. Alarid v. Department of
the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015); Shibuya v. Department of
Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013). If he does so, 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
disclosures or activity. 5 U.S.C. § 1221(e)(2); Shannon v. Department of
Veterans Affairs , 121 M.S.P.R. 221, ¶ 24 (2014). 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. Carr v. Social Security
Administration, 185 F.3d 1318 (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 determine18
whether the evidence is clear and convincing as a whole. Lu v. Department of
Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015).
The appellant proved by preponderant evidence that he engaged in
protected activities under 5 U.S.C. § 2302(b)(9).
Here, the appellant identifies the following protected activities that he
alleges contributed to his removal: (1) in November 2020, he filed an OSC
complaint (MA-21-000299), which he appears to have amended around January
2021 to include the proposed removal, IAF, Tab 18 at 6; (2) on June 21, 2021, he
filed an OSC complaint (DI-21-000600), in which he made disclosures of alleged
Government wrongdoing, IAF, Tab 1 at 32-35; (3) on August 13, 2021, after
receiving a final determination from OSC in his MA-21-000299 complaint, he
filed his first IRA Board appeal, 0142-W-1 IAF, Tab 1; (4) on August 18, 2021,
he disclosed information to the agency’s Office of Inspector General (OIG),
0060 IAF, Tab 6 at 52-53; (5) in 2021, he participated in another OSC
investigation involving an unidentified coworker, 0060 IAF, Tab 5 at 8; and
(6) on November 24, 2021, he filed his first chapter 75 appeal of his removal,
alleging an affirmative defense of whistleblower reprisal, 0020 IAF, Tab 1 at 5.
Under 5 U.S.C. § 2302(b)(9)(C), it is a prohibited personnel practice to
take an action against an employee because that employee “disclos[ed]
information to the Inspector General . . . of an agency, or the Special Counsel, in
accordance with applicable provisions of law.” The administrative judge
correctly found, and the parties do not dispute on review, that the appellant
engaged in protected activity under 5 U.S.C. § 2302(b)(9) with respect to his OSC
complaints. ID at 12-13. She did not address his other alleged protected activity.
We find that the appellant engaged in protected activity under 5 U.S.C. § 2302(b)
(9) with respect to his OIG complaint. See Pridgen, 2022 MSPB 31, ¶ 62
(clarifying that, under 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to
OSC or OIG is protected, regardless of the content). 19
We find that the appellant’s claim to OSC that in 2021 he “participated in a
separate OSC investigation involving another colleague,” without more does not
establishes that he engaged in protected activity. For instance, the appellant does
not allege the nature of his participation, that it occurred before his removal, or
that the agency had knowledge about it. 0060 IAF, Tab 5 at 8; see Graves v.
Department of Veterans Affairs , 123 M.S.P.R. 434, ¶¶ 7, 9 (2016) (finding that an
appellant’s conclusory allegations that he reported gross mismanagement and a
gross waste of funds without further details regarding the nature of his alleged
protected disclosures did not satisfy the Board’s nonfrivolous allegation
standard).
Further, it is undisputed that the appellant alleged whistleblower reprisal in
his August 2021 IRA appeal and November 2021 chapter 75 appeal, and so those
prior appeals constitute protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),
which includes the exercise of any appeal, complaint, or grievance right with
regard to remedying a claim of whistleblower reprisal. 0142-W-1 IAF, Tab 1;
0020 IAF, Tab 1 at 5; see Clay v. Department of the Army , 123 M.S.P.R. 245,
¶ 10 (2016) (explaining that a claim of retaliation for filing a prior Board appeal
that included a claim of whistleblower reprisal was a protected activity under
5 U.S.C. § 2302(b)(9)(A)(i)); Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 7 (2013) (recognizing that the Whistleblower Protection
Enhancement Act of 2012 expanded the Board’s IRA jurisdiction to include
reprisal for activity under 5 U.S.C. § 2302(b)(9)(A)(i)). Accordingly, we find
that the appellant proved by a preponderance of the evidence that he engaged in
protected activity under 5 U.S.C. § 2302(b)(9) in connection with the following
activities: his November 2020 OSC complaint (MA-21-000299), June 21, 2021
OSC complaint (DI-21-000600), August 13, 2021 IRA Board appeal, November
2021 chapter 75 removal appeal alleging an affirmative defense of whistleblower
reprisal, and August 18, 2021 OIG complaint.20
The appellant failed to prove by preponderant evidence that he made
protected disclosures under 5 U.S.C. § 2302(b)(8).
On review, the appellant reargues that the following disclosures contributed
to his removal: (1) on September 16, 2020, he complained to New York City
Councilmember Robert Holden, IAF, Tab 18 at 5, 14; (2) in October 2020, he
complained to the New York State Division of Human Rights, id. at 15;
0060 IAF, Tab 6 at 36-45; (3) in October 2020, he complained to U.S.
Representative Grace Meng, IAF, Tab 18 at 5, 32-35; and (4) on May 6, 2021, he
complained to U.S. Senator Kirsten Gillibrand, id. at 5, 50. The appellant’s
disclosures included allegations that the agency’s management failed to take
safety precautions to combat the spread of COVID-19 and protect elders, like
himself, who were the most at risk of serious injury or death. Id. Specifically, he
alleged that in March 2020 his agency instructed him, a senior over the age of 70,
to work in the office twice as often as his non-high risk coworkers, in violation of
CDC guidance and the NY Governor’s Executive Order advising that senior
citizens should stay indoors. Id. He also disclosed that, after his officemate fell
sick from COVID -19, his management failed to timely deep clean the office or
provide personal protective equipment (PPE), and denied employee requests to
quarantine.5 Id.
A protected disclosure is one that an appellant reasonably believes
evidences any violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8); Mudd, 120 M.S.P.R. 365, ¶ 5
& n.3. The proper test for determining whether an employee had a reasonable
belief that his disclosures were protected is whether a disinterested observer in
his position with knowledge of the essential facts known to, and readily
ascertainable by, the employee could reasonably conclude that the actions
evidenced any of the conditions set forth in 5 U.S.C. § 2302(b)(8). Mudd,
5 According to the appellant, his officemate later passed away. IAF, Tab 18 at 5.21
120 M.S.P.R. 365, ¶ 5. Concerning a disclosure of a danger to public health or
safety, the inquiry into whether a disclosed danger is sufficiently substantial and
specific to warrant protection under whistleblower protection laws is guided by
several factors, including (1) “the likelihood of harm resulting from the danger,”
(2) how soon the harm might occur, and (3) “the nature of the harm,” i.e., “the
potential consequences.” Chambers v. Department of the Interior , 515 F.3d 1362,
1369 (Fed. Cir. 2008).
The time period for assessing the reasonableness of an appellant’s belief is
when he made the disclosure. Covington v. Department of the Interior ,
2023 MSPB 5, ¶ 35. We find that a reasonable person in the appellant’s position
with knowledge of the facts known to him when he made the complaints on
September 16, 2020, and in October 2020 and May 2021, could not reasonably
conclude that the agency’s actions evidenced a substantial and specific danger to
public health or safety, or any of the conditions set forth in 5 U.S.C. § 2302(b)(8).
Indeed, at the time that he made these complaints, the appellant was aware that
management officials were taking the necessary safety precautions, including
deep cleaning the office space and essentially allowing employees to quarantine if
they had been exposed to COVID -19, and that the CDC guidelines and New York
Executive Order were merely guidelines that did not supersede his requirement to
work on-site as an essential employee. Specifically, the record shows that on
April 2, 2020, in response to an email from the appellant questioning why he and
his group were not quarantining following his officemate’s reported illness, the
FTS informed the appellant that he could telework or take leave. IAF, Tab 15
at 52-53. Then, on April 3, 2020, the office telework schedule, which originally
had him scheduled to work in the office twice as often as his younger colleagues,
was revised to require only that the appellant or one of eight coworkers work on-
site per week, resulting in the appellant not having to report on-site until May 25,
2020. 0060 IAF, Tab 6 at 62-63, Tab 15 at 64-65. 22
Moreover, on September 14, 2020, a senior attorney at the agency’s Office
of the Associate Chief Counsel emailed the appellant informing him that the New
York Governor’s Executive Order implementing “New York State on Policy that
Assures Uniform Safety for Everyone (PAUSE)” and “Matilda’s Law,” which
advised senior citizens over the age of 70 to shelter in place, were merely
guidelines and nevertheless did not apply to the agency’s essential personnel,
such as the appellant. 0060 IAF, Tab 6 at 11-12. Thus, under these
circumstances, we find that the appellant’s belief in September and October 2020
and May 2021 that he was disclosing any of the conditions set forth in 5 U.S.C.
§ 2302(b)(8) was not reasonable because by that time he was aware that the
agency was already taking the safety precautions about which he was complaining
and that the Executive Order did not apply to him as an essential worker.
The agency proved by clear and convincing evidence that it would have
removed the appellant notwithstanding the appellant’s protected activity.
We now turn back to the activity that we have found protected under
5 U.S.C. § 2302(b)(9), i.e., the appellant’s November 2020 and June 21, 2021
OSC complaints, August 13, 2021 IRA Board appeal, November 2021 chapter 75
removal appeal, and August 18, 2021 OIG complaint. 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 or activity satisfies the timing portion of the
knowledge/timing test. Id. As stated above, neither party disputes the23
administrative judge’s finding that the appellant proved that his protected activity
was a contributing factor in his removal, and we find that the record supports it.
ID at 12-13.
Here, the appellant established that the deciding official had direct
knowledge of his protected activities because the appellant emailed the deciding
official on June 29, 2021, before he issued the August 27, 2021 removal decision,
informing him of his protected activity. 0060 IAF, Tab 16 at 36-37. Specifically,
he notified the deciding official that he had “filed multiple complaints against
[the] FTS . . . for the gross management and blatant violations of CDC and [s]tate
health guidelines during the COVID outbreak.” Id. at 36. He then described the
content of his complaints, including that the agency’s management failed to take
safety precautions to combat the spread of COVID-19 and protect elders, like
himself, who were the most at risk of serious injury or death. Id. He alleged that
in March 2020, management instructed him, a senior over the age of 70, to work
in the office twice as often as his non-high risk coworkers, in violation of New
York State guidelines advising that senior citizens should stay indoors. Id. He
also stated that, after his officemate fell sick from COVID -19, management failed
to timely clean the office and denied his requests to quarantine. Id. at 36-37.
Indeed, OSC’s preliminary determination letter concerning his November
2020 OSC complaint states that his complaint contained disclosures that the
appellant was “denied self-quarantine and scheduled more in-person work than
younger colleagues as well as . . . that [his] office was not cleaned after a
colleague had COVID-19.” 0142-W-1 IAF, Tab 6 at 11.6 Therefore, we discern
no reason to disturb the administrative judge’s finding that the appellant proved a
prima facie case under the knowledge/timing test. We will now address the
appellant’s argument that the administrative judge erred in finding that the agency
proved by clear and convincing evidence that it would have removed the
6 The appellant’s November 2020 OSC complaint, which appears to have been amended
on or about January 2021 to include his proposed removal, is not in the record of any of
his appeals. 0142-W-1 IAF, Tab 6 at 13. 24
appellant notwithstanding the appellant’s whistleblower activity. We agree with
the administrative judge that the agency met its burden.
Regarding the first Carr factor, i.e., the strength of the agency’s evidence
in support of its action, the administrative judge sustained only two of the three
charges—the neglect of duty and the lack of candor charges. ID at 4, 6. As to the
failure to follow supervisory instructions charge, which she did not sustain, the
administrative judge found that the agency did not have sufficient evidence to
prove that the appellant received an email instructing him to “spend the entirety
of [his] duty hours” at a particular location or instructing him to install desktop
icons. ID at 3; IAF, Tab 8 at 35. She also found that the agency did not prove by
preponderant evidence three specifications of the lack of candor charge, crediting
the appellant’s testimony over the agency’s witnesses. ID at 5-6.
On the other hand, as discussed above, we agree with the administrative
judge’s conclusion that the agency presented sufficient evidence to prove by a
preponderance of the evidence that the appellant’s misconduct regarding the
training, which underlies the remaining two sustained charges, i.e., neglect of
duty and lack of candor. ID at 4, 6. As the administrative judge correctly noted,
the appellant does not dispute that he failed to take the required training as
repeatedly instructed on June 2, July 13, and July 16, 2020. ID at 13; IAF, Tab 6
at 121, 126-27. Also, any claims that he misunderstood the instruction, or that he
did not learn of the requirement until August 18 are unconvincing in light of the
evidence demonstrating that it was a reoccurring annual requirement of his job,
which he completed on July 31 after being told again by his supervisor that it was
mandatory. IAF, Tab 6 at 131. Although the administrative judge mitigated the
penalty to a 30-day suspension, we find that the agency had strong evidence with
respect to the two sustained charges to support its removal action, especially in
light of the appellant’s two prior suspensions for failing to follow instructions.
ID at 13. Accordingly, this factor weighs slightly in favor of the agency. 25
Regarding the second Carr factor, i.e., the existence and strength of any
motive to retaliate on the part of the agency officials involved in the decision, the
appellant avers that the administrative judge did not properly consider the
“embarrassment” that his protected activity caused the agency. PFR File, Tab 1
at 13. The administrative judge credited the deciding official’s unchallenged
testimony that he was not involved in the agency activity that the appellant
reported to OSC and was not personally invested in it. ID at 13. On review, the
appellant argues that agency management and the deciding official’s retaliatory
motive should be based “solely on [the] presumption they acted out
of . . . concern for the well-being of their agency, even if they were not directly
implicated in the relevant disclosures.” PFR File, Tab 1 at 5.
Here, although the deciding official was aware of the appellant’s protected
activity before he issued the removal decision, e.g., 0060 IAF, Tab 16 at 36-38,
we agree with the administrative judge’s conclusion that the appellant’s
complaints regarding the agency’s COVID safety precautions would not have
created a strong personal retaliatory motive on the part of the deciding official
because none of the appellant’s disclosures directly implicated the deciding
official. ID at 13. Nevertheless, the appellant’s argument that the deciding
official, as a “senior managing member” at the agency, harbored concern for the
general well-being of the agency and its reputation carries weight. PFR File,
Tab 1 at 13. To this end, the U.S. Court of Appeals for the Federal Circuit has
found that “[t]hose responsible for the agency’s performance overall may well be
motivated to retaliate even if they are not directly implicated by the
disclosures . . . as the criticism reflects on them in their capacities as managers
and employees.” Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed.
Cir. 2012). Thus, we find that the appellant’s protected activity resulted in some
degree of retaliatory animus on the part of the deciding official.7
7 The appellant further challenges the administrative judge’s decision to credit the
deciding official’s statement that he was not involved or personally invested in the
whistleblower activity by pointing to instances in which he alleges that the deciding26
Lastly, we have also considered whether the OIT Area Manager and the
FTS, who were the individuals who scheduled the appellant to work on-site after
the confirmed COVID-19 case and were essentially the subjects of his
complaints, harbored retaliatory motive against him. Of note, the FTS initiated
the investigation into the appellant’s misconduct and, therefore, the appellant’s
contention below that the FTS influenced the agency’s action warrants close
examination. 0060 IAF, Tab 16 at 36; see Whitmore, 680 F.3d at 1371
(explaining that the Board should consider the retaliatory motive of any officials
who influenced the agency’s action); Mangano v. Department of Veterans Affairs ,
109 M.S.P.R. 658, ¶ 30 (2008) (explaining that, in examining retaliatory motive
for an agency action, the officials involved in the action may include officials
upon whom the proposing or deciding officials relied for information). However,
as set forth above, the initial concerns regarding the appellant’s misconduct and
the emails requesting that the misconduct be investigated began in November
2019, well before the appellant began engaging in the activity that we have found
he proved was protected. IAF, Tab 10 at 47, 58. Thus, this weighs against a
finding that the officials involved in the protected activity improperly influenced
the agency’s removal action. Overall, we find that the second Carr factor weighs
slightly in favor of the agency.
Regarding the third Carr factor, the appellant does not appear to challenge
the administrative judge’s conclusion that neither party introduced evidence that
the agency takes similar actions against employees who did not engage in such
official provided false statements. PFR File, Tab 1 at 13-14. For instance, he claims
that the deciding official testified that he did not respond to the appellant’s request for
evidence to support the removal because it was untimely, when the appellant claims that
his requests were timely. Id. at 13. 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. Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find that the
appellant has not provided a basis to overturn the administrative judge’s credibility
finding. 27
protected whistleblower activity, but who are otherwise similarly situated. ID
at 13. As discussed above, the appellant generally alleges that 50 other
employees failed to timely complete the same training; however, as already
established above, the email the appellant cites to in support of that contention
refers to a 2019 training, and not the 2020 training at issue in this removal. IAF,
Tab 24 at 30; PFR File, Tab 1 at 7-8. To the extent evidence regarding the third
Carr factor exists, the agency is required to come forward with all reasonably
pertinent evidence; the failure to do so “may be at the agency’s peril.” Whitmore,
680 F.3d at 1374. Absent “relevant comparator evidence, the third Carr factor
cannot favor of the [agency].” Siler v. Environmental Protection Agency ,
908 F.3d 1291, 1299 (Fed. Cir. 2018). Accordingly, we find that the third Carr
factor is neutral.
Ultimately, considering the above factors and the record as a whole,
particularly in light of the fact that the appellant had been suspended in 2015 and
2016 for failing to follow supervisory instructions, we agree that the agency
proved by clear and convincing evidence that it would have removed the
appellant absent his protected disclosures. See Carr, 185 F.3d at 1326 (noting
that the whistleblower protection statutes are “not meant to protect employees
from their own misconduct”). Thus, we agree that the appellant failed to prove
his affirmative defense of whistleblower retaliation.8
8 The appellant generally alleged below that, in retaliation for his OSC complaints, the
agency made false statements to the New York Department of Labor in connection with
his application for unemployment benefits. IAF, Tab 24 at 16-17, 34, Tab 31 at 9.
However, he did not detail the nature of those statements. IAF, Tab 24 at 16-17, Tab 31
at 9. For the first time on review, the appellant argues that, after he was removed, the
agency falsely stated to the New York Department of Labor that he quit his job in order
to deny him unemployment benefits. PFR File, Tab 1 at 6. 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, 123 M.S.P.R. 245, ¶ 6. The appellant has not met his
burden here, and we decline to consider his new claim on review.28
We modify the administrative judge’s initial decision to find that the agency has
established nexus, and find no basis to disturb the administrative judge’s findings
regarding the penalty determination.
In her initial decision, the administrative judge did not issue a finding
regarding nexus. Although neither party raises this issue on review, we modify
the initial decision to find that the agency established nexus between the charged
misconduct and the efficiency of the service as the misconduct occurred while on
duty. See Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 24 (2016)
(observing that there is a presumption of a nexus when the misconduct occurred
in part at work). Lastly, we address the appellant’s disagreement with the
administrative judge’s decision to mitigate the removal to a 30-day suspension.
PFR File, Tab 1 at 4. We find that the appellant does not provide a basis to
disturb the administrative judge’s penalty determination.
When not all of the charges are sustained, as here, the Board will consider
carefully whether the sustained charges merited the penalty imposed by the
agency. Suggs v. Department of Veterans Affairs , 113 M.S.P.R. 671, ¶ 6 (2010).
Here, the administrative judge appears to have reweighed the relevant mitigating
and aggravating penalty factors in determining that a 30-day suspension was the
appropriate penalty for the appellant’s proven misconduct. ID at 6-8; see
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) (providing a
nonexhaustive list of factors relevant to penalty determinations). The parties do
not dispute her doing so, and we do not revisit her decision to reweigh the factors
here. PFR File, Tab 3 at 15.
On review, the appellant argues that the agency imposed a disparate penalty
because other employees who did not complete the mandatory training received
penalties ranging from verbal counseling to a letter of reprimand. PFR File,
Tab 1 at 14. The relevant inquiry in assessing a disparate penalty claim is
whether the agency knowingly and unjustifiably treated employees differently.
Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14. There often will be a range of29
penalties that would fall within the tolerable limits of reasonableness in a given
case. Id., ¶ 18. That an agency chooses to impose a penalty at the more lenient
end of that range in one case should not mean that it cannot impose a penalty at
the more severe end of that range in another case. Id.
Here, the appellant has not shown that the referenced employees qualify as
comparators in the first instance, nor has he shown that any disparate treatment
was knowing and unjustifiable. PFR File, Tab 1 at 14. The agency’s Table of
Offenses shows that, depending on whether an employee had prior discipline, the
range of penalties for lack of candor is a 15-day suspension to a removal, and for
neglect of duty is a letter of reprimand to a removal. IAF, Tab 29 at 9-10, 22.
The Regional Director testified that the penalties of the employees who missed
the 2020 mandatory training ranged based on progressive discipline, meaning if
somebody had prior discipline, the resulting discipline would have been greater.
Hearing Transcript (HT) at 11:00 (testimony of the Regional Director). He
testified that the appellant’s two prior suspensions were considered as prior
discipline for his more severe penalty determination. Id. Indeed, the appellant’s
coworker, who was supervised by the same FTS, was also issued a proposed
removal for essentially identical misconduct as the appellant (i.e., failing to
follow supervisor instructions on September 25, 2019, with respect to the
installation of the PRIDE system and icons, engaging in neglect of duty for
failing to timely complete the 2020 CBP Privileged User Role Based Training,
and lacking of candor based on his responses to the investigation into the
September 2019 misconduct). IAF, Tab 10 at 15-18. He also had prior
discipline, including three suspensions. Id. at 16-17. Thus, we find that the
appellant’s removal was within the range of penalties and the agency did not treat
the appellant differently by considering his prior discipline in imposing a penalty
at the more severe end of that range.
The appellant also argues that the deciding official did not properly
consider that he was remorseful. PFR File, Tab 1 at 14. In his Douglas factor30
worksheet, the deciding official appears to have considered as an aggravating
factor his belief that the appellant did not demonstrate sufficient remorse in his
response to the proposed removal. IAF, Tab 25 at 33. The administrative judge
did not address the appellant’s rehabilitative potential below, and therefore we
modify her analysis to do so here.
An appellant’s rationalizations and lack of remorse indicate little
rehabilitation potential and are aggravating factors. Neuman v. U.S. Postal
Service, 108 M.S.P.R. 200, ¶ 26 (2008). Here, the appellant stated in his written
response to the proposed removal that he was “truly sorry for this incident” and
that “this or any other kind of misconduct will not happen again.” IAF, Tab 9
at 153. However, he also claimed that he misunderstood the instructions that he
complete his 2020 CBP Privileged User Role Based Training by July 17, 2020,
and asserted that his prior statement to the Regional Director about this training
did not lack candor. Id. at 138. As discussed above, the administrative judge did
not credit the appellant’s excuses for failing to complete the training on time,
including his claim that he did not understand the instructions. ID at 4, 6, 13.
Further, we observe that the appellant also stated in his response to the proposed
removal that he was “not in need of rehabilitation.” Id. at 151. Thus, we find
that the deciding official appropriately considered this factor as aggravating.
Lastly, we find unpersuasive the appellant’s remaining argument on review
that the deciding official and the administrative judge improperly considered his
past disciplinary record because his prior 5-day and 3-day suspensions are the
subject of EEO complaints, one of which was dismissed and the other of which
was pending. PFR File, Tab 1 at 11, 15; IAF, Tab 31 at 10. Although the
appellant raised the fact that he had challenged his prior disciplinary actions with
the Equal Employment Opportunity Commission (EEOC), the administrative
judge did not consider this issue. IAF, Tab 31 at 10; ID at 7-8. Therefore, we
supplement her penalty analysis to address it here. 31
The Board’s review of a prior disciplinary action in determining if it may
be considered in a Douglas penalty analysis is limited to determining whether that
action is clearly erroneous, if the employee was informed of the action in writing,
the action is a matter of record, and the employee was permitted to dispute the
charges before a higher level of authority than the one that imposed the
discipline. Bolling v. Department of the Air Force , 9 M.S.P.R. 335, 338 -40
(1981). Here, the appellant’s SF-50s documenting his two prior suspensions and
his allegations that he has challenged those actions via the EEO process
demonstrate that the agency informed the appellant in writing of each of his two
prior suspensions, that each was a matter of record, and that the appellant was
permitted to dispute the charges in each before a higher authority. IAF, Tab 31
at 10, Tab 10 at 13-14. That one of his prior suspensions is an issue in a pending
EEO complaint does not establish that the suspensions were clearly erroneous.
Moreover, it is well settled that an agency may consider instances of past
discipline that are the subject of a pending EEO complaint. Gray v. Government
Printing Office, 111 M.S.P.R. 184, ¶ 20 (2009). Thus, we see no error in the
agency’s and the administrative judge’s reliance on the appellant’s prior
disciplinary record in determining a reasonable penalty. Accordingly, we affirm
the initial decision as modified.9
9 After the close of the record on review, the appellant filed a pleading titled, “Petition
for Enforcement of [the administrative judge]’s Interim Relief Order.” PFR File, Tab 5.
The appellant’s petition for enforcement is denied because the Board’s regulations do
not allow for a petition for enforcement of an interim relief order; such petitions apply
only to final Board decisions. Bryant v. Department of the Army , ¶ 6; see 5 C.F.R.
§ 1201.182(a)-(b) (permitting petitions for enforcement of final Board orders). Further,
the appellant’s arguments are now moot because interim relief is in effect only pending
the disposition of a petition for review. Garcia v. Department of State , 106 M.S.P.R.
583, ¶ 7 (2007). If the appellant believes the agency has not complied with this order,
he may file a petition for enforcement with the regional office, as further described
below. 32
ORDER
We ORDER the agency to cancel the removal action and to substitute a
30-day suspension effective August 31, 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 Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
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 decision33
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 RIGHTS10
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
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.34
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. 35
(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: 36
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 37
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.38
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. | Cai_Li_Y_NY-0752-22-0142-I-1_Final_Order.pdf | 2024-01-26 | LI YE CAI v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-0752-22-0142-I-1, January 26, 2024 | NY-0752-22-0142-I-1 | NP |
2,488 | https://www.mspb.gov/decisions/nonprecedential/Fleming_Bruce_PH-0752-18-0457-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRUCE FLEMING,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-18-0457-I-1
DATE: January 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason H. Ehrenberg , Esquire, Washington, D.C., for the appellant.
Alison Gray , Esquire, Washington, D.C., for the agency.
Terrence P. Cook , Esquire, Annapolis, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. The appellant has filed a motion to dismiss the
agency’s petition for failure to provide interim relief. For the reasons discussed
below, we DENY the appellant’s motion to dismiss, GRANT 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).
petition for review, and REVERSE the initial decision. The agency’s action is
SUSTAINED.
BACKGROUND
The appellant is a tenured Professor of English at the U.S. Naval Academy
in Annapolis, Maryland. At issue are certain aspects of the appellant’s conduct in
teaching first-year Rhetoric & Introduction to Literature, HE 111, during the fall
semester of the 2017/2018 academic year. In January 2018, five different
students filed complaints with the Vice Academic Dean alleging that the appellant
had made various offensive comments, discussed inappropriate matters during
class, and engaged in other unprofessional conduct. Initial Appeal File (IAF),
Tab 7 at 115-34. The Vice Academic Dean directed the Director of the Division
of Humanities and Social Sciences to supervise a fact-finding inquiry. Id. at 114.
The Division Director assembled a panel of three senior faculty members,
who interviewed the students from the appellant’s fall classes, as well as two
other students whose names had come up regarding one matter. Id. at 135-89;
IAF, Tab 8 at 4-119. The appellant was invited to address the panel, but he
declined to do so. IAF, Tab 8 at 120-21; IAF, Tab 28 at 91. He did reply by
email, IAF, Tab 8 at 123, and he also sent an email message to the entire faculty
in which he generally complained about the unfairness of the process, id. at 130.
Thereafter, the panel issued a report finding that a number of the matters as
described in the complaints had occurred and qualified as unprofessional
behavior. IAF, Tab 7 at 97-113.
On June 26, 2018, the Division Director proposed the appellant’s removal
on a charge of Conduct Unbecoming a Federal Employee with seven
specifications. The agency alleged that the appellant: (1) referred to students as
“right-wing extremists”; (2) made comments about and discussed anal sex, oral
sex, and transgender surgery; (3) emailed partially clothed photos of himself to
students after having been counseled that doing so was inappropriate and agreeing2
to refrain from doing so; (4) touched students without their approval; (5) referred
to his own sexual experiences; (6) repeatedly mispronounced an Asian -American
student’s name despite being corrected several times; and (7) made demeaning,
sexually related comments about a child and her mother because of how they
were dressed.2 Id. at 79. After the appellant responded, the Academic Dean and
Provost issued a decision sustaining all seven specifications and removing the
appellant effective August 17, 2018. Id. at 18-21, 33.
The appellant filed a Board appeal contesting the merits of the removal and
raising several affirmative defenses, including retaliation for whistleblowing,
violation of his First Amendment rights, and harmful procedural error. IAF,
Tabs 1, 30. After a hearing, the administrative judge issued an initial decision
not sustaining any of the seven specifications and reversing the removal on that
basis. IAF, Tab 33, Initial Decision (ID). The administrative judge considered
the appellant’s affirmative defenses but found that he failed to prove them. ID
at 16-17. He ordered the agency to provide interim relief if either party filed a
petition for review. ID at 19.
The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 7; the appellant has filed a response, PFR File, Tab 13; and the agency has
filed a reply, PFR File, Tab 16. The appellant has also moved to dismiss the
agency’s petition for failure to comply with the interim relief order, PFR File,
Tab 11, and the agency has responded in opposition to that motion, PFR File,
Tab 12.
ANALYSIS
The agency is in compliance with the administrative judge’s interim relief order.
If the appellant is the prevailing party in the initial decision and the
administrative judge orders interim relief, a petition for review filed by the
2 In proposing the appellant’s removal, the agency considered that he had previously
been issued a Letter of Reprimand for disclosing a student’s personally identifiable
information. IAF, Tab 7 at 81. The Reprimand was issued on May 11, 2018. Id. at 94.3
agency must be accompanied by a certification that the agency has complied with
the interim relief order, either by providing the interim relief ordered, or by
making a determination that returning the appellant to the place of employment
would cause undue disruption to the work environment. Ayers v. Department of
the Army, 123 M.S.P.R. 11, ¶ 6 (2015); 5 C.F.R. § 1201.116(a); see 5 U.S.C.
§ 7701(b)(2)(A)(ii). If an agency makes a determination that an employee will
pose an undue disruption, it must nonetheless return the employee to a pay status
pending the outcome of its petition for review, and provide “pay, compensation,
and all other benefits as terms and conditions of employment” pending the
outcome of the petition for review. 5 U.S.C. § 7701(b)(2)(B). The Board’s
review of interim relief is limited to determining whether the agency actually
made an undue disruption determination and whether the employee has received
appropriate pay and benefits. The Board does not have the authority to review
the merits of an undue disruption determination. King v. Jerome, 42 F.3d 1371,
1375-76 (Fed Cir 1994).
In this case, the agency’s petition for review was accompanied by a
certification that it has complied with the administrative judge’s interim relief
order by reinstating the appellant to his position, effective the date of the initial
decision, and a Standard Form 50 (SF-50), Notification of Personnel Action,
reflecting the interim appointment. PFR File, Tab 7 at 61, 63. The certification
states, however, that the appellant has not been returned to the classroom. Id.
at 61. In support of the certification, the agency has submitted a declaration by
the Academic Dean and Provost, stating that based on the seriousness of the
charged misconduct, he determined that the appellant’s presence in the classroom
and his engaging with midshipmen in any advisory role would be an undue
disruption to the workplace. Id. at 65. He emphasized that his determination was
guided by the Naval Academy’s responsibility to provide a positive and
supportive classroom and advisory environment which respects the dignity of the
individual, promotes the education and professional development of future Navy4
and Marine Corps leaders, and ensures the wellbeing of the midshipmen. Id.
at 66. The agency has also submitted a copy of the Academic Dean and Provost’s
August 7, 2019 letter to the appellant explaining that, for the reasons set forth
above, in lieu of teaching and advising midshipmen, his assignments during the
pendency of the petition will include scholarly research and writing and service to
the school. Id. at 67.
In his motion to dismiss, the appellant argues that the agency has failed to
provide the necessary interim relief because, by not allowing him to teach, it has
denied him the possibility of receiving student and peer evaluations, which are a
significant component of yearly considerations in the merit pay increases that are
a condition of his employment. PFR File, Tab 11. The appellant likens merit pay
increases to overtime which is required as part of interim relief when the
employee proves that he is entitled to it as a condition of employment. Id. at 7.
In its response to the appellant’s motion, the agency argues that the three
performance elements for Academy faculty that form the basis for merit increases
are teaching, scholarship, and service, and that, when a faculty member does not
perform tasks in one of the elements during the rating period, the member is still
eligible for a merit increase based on the element(s) in which he or she has
performed tasks.3 PFR File, Tab 12 at 6-7. Thus, the agency argues that, when
the appellant is eligible for a merit increase, it will be based on his performance
in the elements of scholarship and performance. Id. at 7. In support of its
position, the agency has submitted a declaration under penalty of perjury by the
Vice Academic Dean, who oversees the Academy’s performance plan program.
Id. at 16. The agency also disputes the appellant’s argument that merit increases
should be considered like overtime. Id. at 11-12.
We find that the agency has met its initial burden of demonstrating that it is
in compliance with the administrative judge’s interim relief order. Specifically,
3 As an example, the agency references a professor who, because of absence due to
maternity leave, is not in the classroom for a portion of time during the rating period
and is therefore not rated on the teaching element. PFR File, Tab 12 at 7, 19.5
the agency has: (1) certified its compliance; (2) submitted an SF-50 showing that
the appellant has been given an interim appointment to his Professor position at
his previous adjusted basic pay, effective the date of the initial decision; (3) made
a determination that returning him to the classroom would pose an undue
disruption; and (4) so advised the appellant.
Therefore, the only remaining issue is whether the appellant has been
denied pay, compensation, or other benefits as terms and conditions of
employment, during the pendency of the petition for review. 5 U.S.C.
§ 7701(b)(2)(B). We find that he has not. The evidence submitted by the agency
shows that merit increases for faculty are not automatic, PFR File, Tab 12 at 18,
21, and not a condition of employment.4 In any event, the agency has shown that
the appellant’s absence from the classroom will not automatically preclude him
from receiving merit increases during subsequent academic years because his
eligibility will be based on performance in the remaining two elements. Id. at 19.
For these reasons, the appellant’s motion to dismiss is denied.
Conduct Unbecoming.
The administrative judge correctly found that a charge of conduct
unbecoming has no specific elements and that, in analyzing such a charge, the
Board considers whether the conduct was improper, unsuitable, or detracting from
one’s character or reputation. ID at 5; see Social Security Administration v.
Long, 113 M.S.P.R. 190, ¶ 42 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011). The
agency must prove its charge by preponderant evidence, which is the degree of
relevant evidence that a reasonable person, considering the record as a whole,
4 The appellant’s likening of his situation to overtime is not persuasive. Generally,
overtime pay is compensation that is not required to be paid under an interim relief
order. McLaughlin v. U.S. Postal Service , 55 M.S.P.R. 192, 200 (1992), The only
exception is in those instances in which an employee proves that he is entitled to
overtime as a term or condition of employment by virtue of law, rule, regulation,
collective bargaining agreement, or binding agency policy. Id. The appellant has made
no such showing regarding merit increases.6
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), 1201.56(b)(1)(ii).
Specification (1) is sustained.
In this specification, the agency alleged that the appellant referred to two
students as “right-wing extremists” or words to that effect. IAF, Tab 7 at 79. In
an email dated September 26, 2017, he referred to the two as “my right-wing
extremists,” and then critiqued what he perceived as their unsupported positions
on issues about which they had written (anti-gun control and anti-taxes) in
connection with an assignment. IAF, Tab 8 at 135. In his initial decision, the
administrative judge noted that, in the email, the appellant stated that he would
have sent the same email to “left-wing extremists,” and that “this is not a left-
right thing. It’s a justify that thing.”5 ID at 11; IAF, Tab 8 at 135. Finding that
the email was not “politically discriminatory,” the appellant’s real message to the
students was that they must provide supporting arguments for positions they take,
and that is a completely appropriate criticism for a student paper, the
administrative judge concluded that the specification does not describe
misconduct. ID at 11-12.
On review, the agency argues that the email was unprofessional because it
detracted from the appellant’s role as a supervisor, and that, in sending the email,
he abdicated his responsibility to be a role model for the students and to show
them dignity and respect. PFR File, Tab 7 at 20-21. The agency asserts that it
charged the appellant with conduct unbecoming, not political discrimination. Id.
at 19-20.
That the appellant sent this email is not in dispute. What is in dispute is
whether the email constitutes actionable misconduct. We find that it does,
particularly in the setting of the U.S. Naval Academy. The mission of the
Academy is to develop midshipmen morally, mentally, and physically, and it is
5 The investigatory panel did not find any negative outcomes for any students based on
their political beliefs. IAF, Tab 7 at 99.7
expected of all members, military or civilian, that they be examples of the
principles the Academy is trying to teach—honor, courage, and commitment.
Hearing Transcript (HT) at 11 (testimony of the Commandant of Midshipmen).
Midshipmen are supposed to be taught, by word and example, that treating others
with dignity and respect is a core tenet of the military professional. HT at 9-10
(testimony of the Commandant of Midshipmen). Therefore, certain types of
conversations, which between peers might be considered “joking around,” are not
acceptable in the very different context of a senior-subordinate relationship. HT
at 37-39 (testimony of the Commandant of Midshipmen). The testimony of the
Commandant of Midshipmen was echoed by other witnesses, who likewise
emphasized the values of dignity and respect, the role of a service academy to
instill these values into future officers, and the responsibility of the faculty to
exemplify them. HT at 41-42, 45-46, 68, 70 (testimony of a Professor of
Mechanical Engineering), 166 -67, 174-75 (testimony of the Academic Dean and
Provost), 301 (testimony of a Professor of English). Naval Academy instructors
have the right to academic freedom within the classroom, but there is a difference
between proper pedagogical activities and behavior that is unprofessional or
pedagogically inappropriate, and instructors are expected to treat their students
with dignity and respect. IAF, Tab 8 at 149-50, Academic Dean and Provost
Instruction 1531.63C (Apr. 1, 2016).
We agree with the witnesses who testified that, by labeling two of his
students “right-wing extremists,” the appellant failed in his duty to treat them
with dignity and respect. HT at 16 (testimony of the Commandant of
Midshipmen), 308 (testimony of a Professor of English). This specification is
sustained. See Dolezal v. Department of the Army , 58 M.S.P.R. 64, 66-67 (1993)
(upholding a conduct unbecoming charge based on disparaging and demeaning
comments the appellant made in an email about a subordinate).8
Specifications (2) and (5) are sustained. 6
In specification (2), the agency charged that, during class, the appellant
made comments regarding oral sex, anal sex, and transgender surgery, and in
specification (5), that he made comments referring to his own sexual experiences.
IAF, Tab 7 at 79. The appellant did not deny discussing these matters in class,
but he disagreed that the discussions were inappropriate. Id. at 125, 133.
The administrative judge agreed with the appellant. He found that the
deciding official failed to consider whether the academic context warranted the
discussion of sexual topics, particularly in light of the appellant’s academic
writing on transgender issues. He further found that there did not appear to be a
rule or policy against discussing such topics or the appellant’s own sexual
experiences, and that the appellant was not on notice that such discussions were
forbidden or greatly restricted. Therefore, the administrative judge found that the
allegations in specifications (2) and (5) did not constitute actionable misconduct,
and for that reason, he did not sustain them. ID at 12-13.
On review, the agency argues that conduct unbecoming does not
necessarily require violation of a specific rule, and that there is sufficient
evidence to show that many of the appellant’s remarks were off-topic or
otherwise inappropriate. PFR File, Tab 7 at 22, 26-27, 42-44. We agree. There
are certain academic contexts in which discussion and even explicit discussion of
sexual material may be proper. However, the unrebutted hearing testimony shows
that the appellant frequently perseverated on these topics even when they were
completely unrelated to the course material.7 HT at 103 (testimony of
Midshipman M.D.), 162 -63 (testimony of Midshipman B.G.). This testimony is
consistent with the content of the students’ written complaints and the greater
6 We agree with the administrative judge that it is best to address these two
specifications together. ID at 12-13.
7 Regarding specification (5) in particular, it is difficult to imagine a situation in which
it would be appropriate for a professor to share with the class details of his own
personal sexual experiences.9
part of student responses to the panel inquiry. IAF, Tab 7 at 117-21, 125-27, 129,
131-33, Tab 8 at 4-119.8 Nor does the appellant suggest that his discussion of
these matters was confined to situations in which they may have been implicated
by course materials. IAF, Tab 8 at 125-26; IAF, Tab 7 at 33-34. Furthermore,
even to the extent that these discussions may have been related to the course
material, and allowing that it is normal for college classroom discussions to stray
from the material sometimes, we still find that the nature and extent of the
appellant’s remarks went beyond what was appropriate.9
Specification (3) is sustained.
In specification (3), the agency charged that the appellant emailed partially
clothed pictures of himself10 to students, after having been counseled that doing
so was inappropriate and agreeing to not do so in the future. IAF, Tab 7 at 79.
This conduct was mentioned in two of the student complaints, id. at 121, 132, as
well as in a number of interview responses , e.g., IAF, Tab 8 at 61, 66, 88, 98,
104, 114, 116. In his email to the panel, the appellant denied this specification,
admitting that he had only sent such a photo to a student 2 years ago, not during
the timeframe at issue, and he defended that earlier action as not inappropriate,
suggesting that it related to course material. Id. at 125-26.
In addressing this specification, the administrative judge found that there
was no dispute that the appellant was counseled for sending partially clothed
photos of himself to students in 2015, IAF, Tab 8 at 158-59, and that he again
8 Some of the interviewees reported that the appellant discussed condom use,
transgender surgery, and sexuality, yet also reported that there was no “sexually
suggestive language” used.
9 Even if we did not sustain specification 2, we find that the charge would still be
sustained based upon the remaining specifications. Burroughs v. Department of the
Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (proof of one or more specifications is
enough to sustain charge); Avant v. Department of the Air Force , 71 M.S.P.R. 192, 198
(1996) (explaining that if a single charge has multiple specifications, an agency need
only prove one specification to sustain the charge).
10 Most of the photos were of the appellant shirtless and flexing. IAF, Tab 8 at 136,
142-45.10
engaged in that behavior in 2017, id. at 136, Tab 29 at 77-78. ID at 13.
Nonetheless, the administrative judge found that, other than one midshipman,
M.D., no one who received the photos appeared particularly offended by them,
and that Midshipman M.D.’s claim that he was offended at receiving the photo
was “hard to believe.” ID at 13-14. Concluding that there was no misconduct,
the administrative judge did not sustain this specification. ID at 14. The agency
contests this analysis on review. PFR File, Tab 7 at 32.
We find that, regardless of whether the appellant believed that sending
midshipmen shirtless photos of himself was appropriate, and regardless of
whether any recipients of those photos were actually offended, his actions still
amounted to conduct unbecoming. The record shows that, in the fall of 2015, the
agency gave the appellant a written and verbal counseling about this very same
behavior, notified him that it was inappropriate, required him to retake an
anti-harassment training course, and warned him against engaging in such
behavior in the future. IAF, Tab 8 at 159. The appellant acknowledged, at that
time, that sending such photos of himself to students could result in allegations of
impropriety, and he agreed to refrain from doing so in the future. Id. Yet 2 years
later, the appellant disregarded the agency’s warning and resumed emailing
midshipmen shirtless pictures of himself. IAF, Tab 7 at 121, 132, Tab 8
at 142-45; HT at 55-56.(testimony of Professor K.L.), (testimony of Midshipman
M.D.). That the appellant claims a pedagogical purpose for this is immaterial; he
acted contrary to his supervisors’ clearly stated expectations, and on that basis, he
committed conduct unbecoming.
Specification (4) is sustained.
In specification (4), the agency alleged that the appellant touched students
without their approval. IAF, Tab 7 at 79. The appellant touching students on
their shoulders, head, and neck in an unwanted, unnecessary, and unprofessional
manner was mentioned in several complaints, id. at 118, 129, 132, as well as in a
number of student interviews conducted by the panel, e.g., IAF, Tab 8 at 5, 13,11
21, 41, 58, 66, 78. In his email to the panel, the appellant did not deny the
touching, but stated that, because he “can read body language,” any such touching
was always welcome. Id. at 128.
The administrative judge found that the appellant did touch students, but
there was no policy against it and no students were offended. The administrative
judge therefore found that there was no misconduct, and he did not sustain this
specification. ID at 14.
On petition for review, the agency disputes the administrative judge’s
analysis and argues that it presented sufficient evidence for the Board to sustain
this specification. PFR, Tab 7 at 38, 41. We agree. The record shows that the
appellant, on one or two occasions, sat next to a student in class and rubbed his
back for approximately 15 seconds. HT at 148-49 (testimony of Midshipman
A.B.). The appellant does not deny this behavior, IAF, Tab 7 at 106-07, and we
find that it was inappropriate on its face. Furthermore, the student at issue
testified, unsurprisingly, that the appellant’s actions made him feel
uncomfortable.11 HT at 148-49 (testimony of Midshipman A.B.). We agree with
the agency that this constituted conduct unbecoming.
Specification (6) is sustained.
In specification (6), the agency alleged that the appellant repeatedly
mispronounced an Asian-American student’s name despite being corrected
several times. IAF, Tab 7 at 79. The student in question, Midshipman R.J.,
raised this matter in his complaint, stating that, “especially when angry,” the
appellant would call him different last names “which were common Asian last
names,” and that, when corrected, he “always brushed it off, . . . one time even
telling [the student] to ‘f*** off.’” Id. at 133. The student’s testimony was
consistent with his complaint. HT at 154 (testimony of Midshipman R.J.).
Midshipman R.J. also testified that he believed that the appellant intentionally
11 Although the student’s feelings about the appellant’s behavior are not dispositive,
they lend further support to our finding that it was inappropriate.12
called him the wrong name because he repeatedly mispronounced his name
despite several corrections, and that he viewed the mispronunciations as a “slap in
the face” given his status as a child of immigrant parents who came to the United
States with “literally nothing,” and given that a family name holds significant
honor in his culture. HT at 155-56 (testimony of Midshipman R.J.). During the
investigation, a number of other students remarked upon the appellant’s
mispronouncing of names, specifically Asian names. See, e.g., IAF, Tab 8 at 13,
46, 58, 62, 68, 70, 85. In his deposition, the appellant stated three times that he
did not “recollect” mispronouncing the student’s name, although he then denied
that it happened after being specifically asked whether he denied mispronouncing
the name. IAF, Tab 28 at 78-79. In his written reply to the panel, he
acknowledged that, while he tries to get names right, he “can’t always.” He
denied making a “f*** you” comment, IAF, Tab 8 at 129, although that was not
specifically what Midshipman R.J. had claimed.
In finding this specification not sustained, the administrative judge
questioned Midshipman R.J.’s credibility because, when he was interviewed by
the panel, he stated that he was unsure whether the mispronunciation was “done
on purpose,” and because, while he stated that the appellant used profanity in the
classroom, and that two or three times it was directed at him personally, he did
not mention the “f*** off” comment. IAF, Tab 8 at 60; ID at 15. The
administrative judge also found a lack of corroboration of this specification by
the rest of the class. ID at 15.
On review, the agency argues that the administrative judge’s credibility
determination was not demeanor-based, and that it therefore should not be
afforded deference. PFR File, Tab 7 at 47. However, the Board has held that a
credibility determination made after an in-person hearing is at least implicitly
based on witness demeanor. Aldridge v. Department of Agriculture , 111 M.S.P.R.
670, ¶ 11 (2009). Such demeanor-based credibility determinations are entitled to
deference and may only be overturned when the Board has “sufficiently sound”13
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed.
Cir. 2002). There are sufficiently sound reasons in this case for us to find
Midshipman R.J. a credible witness notwithstanding the administrative judge’s
finding to the contrary. Midshipman R.J.’s testimony was consistent with his
complaint and supported by other students’ accounts as to the appellant’s
mispronouncing of students’ names. Although Midshipman R.J. informed the
panel that it was “[h]ard to tell if it was done on purpose,” he nevertheless “felt it
was directed intentionall[y]” at him. IAF, Tab 8 at 60. As stated above, the
appellant elected not to testify at the hearing. See Scott v. Department of Justice ,
69 M.S.P.R. 211, 229 (1995) (noting that, in weighing the evidence, that the
appellant did not explain why he did not testify under oath or provide a sworn
statement), aff’d, 99 F.3d 1160 (Fed. Cir. 1996). That the appellant did not recall
mispronouncing Midshipman R.J.’s name is not the same as denying that it
occurred. Hillen v. Department of the Army , 50 M.S.P.R. 293, 302 (1991). His
denial, in turn, occurred only after he had stated three times that he did not
“recollect” doing so, and only after he was specifically asked whether he denied
it. See Spurlock v. Department of Justice , 894 F.2d 1328, 1330 (Fed. Cir. 1990)
(holding that self-contradiction and imprecision detract from the weight to be
accorded the evidence upon which an administrative board bases its decision).
For these reasons, we find that Midshipman R.J.’s account is credible and that the
appellant engaged in conduct unbecoming as specified.
Specification (7) is sustained.
In this specification, the agency alleged that the appellant made demeaning
sexually related comments about an adolescent girl attending a dance with his son
and similar offensive comments about the girl’s mother. IAF, Tab 7 at 79.
Midshipman M.D. reported that the appellant said that the appellant called the
girl a “slut” who was “looking for something more,” and said that her short dress
suggested her sexual intentions. IAF, Tab 7 at 118. According to Midshipman
M.D., the appellant then showed the class a photo of the girl with his son, again14
focusing on the shortness of her dress, and also made fun of her mother’s physical
features, skirt length, clothing choices, and parental decision-making. Id. at 119.
Midshipman M.D.’s hearing testimony was in accord, HT at 100-01 (testimony of
Midshipman M.D.), as was the testimony of another student, HT at 158-59
(testimony of Midshipman J.R.). Two of the other students who filed complaints
also mentioned this incident, IAF, Tab 7 at 129, 131, as did a number of the
students who were interviewed by the panel. See, e.g., IAF, Tab 8 at 7, 11, 13,
15, 17, 21, 25, 27, 29, 31, 33, 37, 41, 82. The appellant admitted to these actions
in his email to the panel. Id. at 128.
Regarding this specification, the administrative judge found that there was
no prohibition against discussing either one’s family or sexual topics, and that
because there was no misconduct, the specification was not sustained. ID at 15.
We disagree with the administrative judge’s reasoning.
There is no dispute that the appellant made the comments in question. IAF,
Tab 7 at 107-08; ID at 15. An agency is not required to describe in detail all
potentially prohibited employee conduct and the resulting discipline. Rather, an
agency may reasonably require its employees to exercise good judgment,
notwithstanding a lack of literal guidance from an agency rule, regulation, or
other statement of policy. Byers v. Department of Veterans Affairs , 89 M.S.P.R.
655, ¶ 24 (2001). Here, given the Academy’s commitment to the principles of
dignity and respect, the appellant should have known that his actions would be
considered inappropriate and could constitute actionable misconduct. In
particular, the appellant should have known that making demeaning sexual
comments about an adolescent would constitute conduct unbecoming a Federal
employee. This specification is sustained.15
The agency’s charge is sustained.
Because we have found all of the specifications sustained, the charge of
Conduct Unbecoming is sustained.12 See Johnson v. Small Business
Administration, 97 M.S.P.R. 571, ¶¶ 24-25 (2004).
The agency has established a nexus between the sustained misconduct and the
efficiency of the service.
In addition to the requirement that an agency must prove the charge it has
brought against the appellant, it must also prove that there is a nexus, i.e., a clear
and direct relationship between the articulated grounds for the adverse action and
either the appellant’s ability to accomplish his duties satisfactorily or some other
legitimate government interest. Canada v. Department of Homeland Security ,
113 M.S.P.R. 509, ¶ 10 (2010). Here, the charge bears on the Academy’s mission
of preparing midshipmen morally, mentally, and physically to fulfill their
leadership role in the Navy and Marine Corps, and of the importance of training
midshipmen to treat others with dignity and respect and to build trust between
these future leaders and their subordinates, who will be asked to follow their
commands. HT at 9-10 (testimony of Commandant). Every member of the
Academy, including civilian faculty like the appellant, is expected to act in a
manner that reflects the core values and principles being taught. HT at 11
(testimony of the Commandant). We therefore find that the agency has
established a nexus between the sustained misconduct and the efficiency of the
service. See Canada, 113 M.S.P.R. 509, ¶ 11 (finding nexus, based on conduct
adversely affecting the agency’s mission, when the appellants, who were first-line
12 As noted, the administrative judge found that the appellant did not establish his
claims that, in taking this action, the agency retaliated against him for engaging in
whistleblowing, violated his First Amendment rights, and committed harmful
procedural error. ID at 16-18. The appellant has not filed a petition for review
challenging the administrative judge’s findings not sustaining any of these affirmative
defenses. Therefore, and because, based on our review, we determine the findings to be
well supported, we will not disturb them. See 5 C.F.R. § 1201.115 (providing that the
Board normally will consider only issues raised in a timely filed petition or cross
petition for review).16
supervisors, oversaw a young and impressionable workforce of junior employees
who looked to the appellants for guidance and direction).
The agency has shown that removal is a reasonable penalty for the sustained
misconduct.
When, as here, all of an agency’s charges are sustained, the Board will
review the agency-imposed penalty only to determine if the agency considered all
the relevant factors and exercised management discretion within the tolerable
limits of reasonableness. 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 management’s judgment has been properly
exercised. Powell v. U.S. Postal Service , 122 M.S.P.R. 60, ¶ 12 (2014).
Here, in arriving at his decision to affirm the appellant’s removal, the
deciding official considered the factors set forth by the Board in Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), as appropriate in
making a penalty determination. IAF, Tab 7 at 21-24. In so doing, he concurred
in the analysis of the Douglas factors made by the proposing official. Id.
at 79-83. The most important of these factors is the nature and seriousness of the
offense. Boo v. Department of Homeland Security , 122 M.S.P.R 100, ¶ 18
(2014). Regarding this factor, the deciding official found that the appellant’s
misconduct was intentional and repeated, and that it occurred both in the
classroom and in emails to students. IAF, Tab 7 at 21. In considering the
appellant’s job level and type of employment, the deciding official found that, as
a senior faculty member and instructor of future Navy and Marine Corps leaders,
the appellant’s conduct fell short of the requirement that he establish and
maintain a classroom environment that respects the dignity of the individual and
develops an appreciation for an appropriate superior-subordinate relationship. Id.
at 22. The deciding official also considered that, since 2013, the appellant was
formally counseled twice and received a letter of reprimand regarding his17
unprofessional behavior. Id. The deciding official noted that the appellant had
been formally counseled against sending partially clothed photos of himself to
students, yet repeated this conduct. Id. at 23. Based on the appellant’s insistence
that his actions were proper and that he is entitled to continue such behavior, the
deciding official indicated that, in his view, the appellant lacks rehabilitative
potential, stating that he lacks confidence that the appellant will perform at a
satisfactory level in the future and change his behavior. Id. at 23-24. The
deciding official also stated that removal is within the range of remedies in the
agency’s table of penalties for a similar offense of inappropriate conduct. Id.
at 24. The deciding official considered mitigating factors, including the
appellant’s lengthy service as a faculty member, his satisfactory official
performance ratings, and his receipt of performance awards in the 1990s. Id.
at 22. Despite these factors, the administrative judge concluded that removal was
the appropriate penalty. Id. at 20. Apart from a pro forma statement in his initial
appeal form, IAF, Tab 1 at 6, the appellant has not contested the agency’s penalty
determination.
Based on our review, we find that the deciding official carefully considered
the appropriate Douglas factors, and we agree that removal is within the
parameters of reasonableness for the sustained charge. We therefore defer to the
agency’s penalty determination.
NOTICE OF APPEAL RIGHTS13
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
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.18
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 at19
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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,20
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.14 The court of appeals must receive your petition for
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. 115-195,21
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. 22
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.23 | Fleming_Bruce_PH-0752-18-0457-I-1_Final_Order.pdf | 2024-01-26 | BRUCE FLEMING v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-18-0457-I-1, January 26, 2024 | PH-0752-18-0457-I-1 | NP |
2,489 | https://www.mspb.gov/decisions/nonprecedential/Bridges_William_H_AT-0831-19-0209-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM H. BRIDGES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0831-19-0209-I-1
DATE: January 26, 2024
THIS ORDER IS NONPRECEDENTIAL1
William H. Bridges , Memphis, Tennessee, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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)
regarding the calculation of his post-1956 military service deposit with interest
under the Civil Service Retirement System (CSRS). For the reasons discussed
below, we GRANT the appellant’s petition for review, we AFFIRM the portion 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 initial decision pertaining to the calculation of his post-1956 military service
deposit with interest, we VACATE the administrative judge’s findings regarding
his excess deductions claim, and we REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
As set forth in the initial decision, the appellant performed military service
from 1961 to 1976. Initial Appeal File (IAF), Tab 17, Initial Decision (ID) at 2.
The appellant was appointed to a position in the Federal civil service that was
covered under the CSRS on July 26, 1980, and he retired on January 31, 2013.
Id. In December 2012, the appellant elected to make a deposit for his post-1956
military service. IAF, Tab 5 at 119.
In 2016, OPM determined that the appellant had been underpaid $27,334.00
because his CSRS retirement annuity did not account for his post -1956 military
service. ID at 2; IAF, Tab 5 at 9, 26. OPM adjusted his annuity to include credit
for his military service and determined that the amount due for his post-1956
military service deposit with interest was $19,707.61, which was withheld from
the underpayment. ID at 2; IAF, Tab 5 at 9, 26. The appellant requested
reconsideration of OPM’s interest calculation, ID at 2; IAF, Tab 5 at 31-36, and
OPM issued a final decision affirming its calculation, ID at 2; IAF, Tab 5 at 9-11.
The appellant appealed OPM’s final decision to the Board, and he
requested a hearing. IAF, Tab 1 at 1-7. After holding a telephonic hearing, the
administrative judge issued an initial decision affirming OPM’s final decision.
ID at 1, 6.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has filed a response, PFR File, Tab 4, to which the appellant
has replied, PFR File, Tab 5.2
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s findings regarding the calculation of the
appellant’s post-1956 military service deposit with interest.
On petition for review, the appellant reasserts his argument that OPM
should have applied a fixed 3% interest rate instead of a variable interest rate to
his post-1956 military service deposit. PFR File, Tab 1 at 6, 9; IAF, Tab 1 at 5,
Tab 9 at 11-12. He contends that his May 2019 submission before the
administrative judge contains “everything [she] needed to make a correct
decision” in this case, PFR File, Tab 1 at 4, and he requests the Board to review
that pleading before rendering a decision, id. at 7-8. He further asserts that the
administrative judge misconstrued his claim because he requested the Board to
establish the correct interest rate based on his time of service and hire date—not
to affirm or deny OPM’s reconsideration decision. Id. at 3. With his petition for
review, the appellant has provided an annotated copy of the initial decision and
has resubmitted documentation that already is a part of the record before the
administrative judge. Id. at 11-12, 15-18, 23-25, 29-34; IAF, Tab 1 at 9, Tab 5
at 92, 102, Tab 9 at 18, 24-27, 41.
We discern no reason to disturb the initial decision based on the appellant’s
reassertion of arguments and resubmission of evidence that were properly
considered by the administrative judge. Specifically, the administrative judge
found that the appellant’s argument regarding a fixed 3% interest rate was
unpersuasive because it was based on his misinterpretation of various
Government publications and guidance that do not specifically apply to post-1956
military service deposits. ID at 3-4. For the reasons provided in the initial
decision, we agree with the administrative judge’s finding that OPM correctly
used the applicable interest rates on the appellant’s post-1956 military service
deposit. ID at 3, 6; see 5 U.S.C. § 8334(e)(3), (j)(2). Moreover, we discern no
error in the administrative judge’s decision to affirm OPM’s final decision in
which OPM expressly considered the appellant’s dispute regarding the amount of3
interest due on his military service deposit. IAF, Tab 5 at 9-11; see Brown v.
Office of Personnel Management , 51 M.S.P.R. 261, 263 (1991) (explaining that
the Board generally has jurisdiction over appeals of final OPM decisions under
5 U.S.C. § 8347(d) and 5 C.F.R. § 831.110).
Further, we find that the appellant’s reassertion of his argument that OPM’s
use of a variable interest rate constitutes discrimination prohibited by the
Veterans’ Preference Act of 1944 (VPA) and the Civil Rights Act of 1964 is
unavailing because the terms under which interest must be paid on a post-1956
military service deposit are mandated by the CSRS retirement statute and do not
provide for waiver or alteration of the method of calculation. PFR File, Tab 1
at 6, 10; IAF, Tab 9 at 10, 49; see 5 U.S.C. § 8334(e), (j); see also, e.g.,
Simpkins v. Department of Labor , 107 M.S.P.R. 651, ¶ 19 (2008) (construing
analogous provisions under the Federal Employees’ Retirement System in
observing that the relevant statute and regulations do not allow for waiver of
interest). For the same reason, we find that the appellant’s resubmission of
documentation concerning the construction of the VPA is immaterial to the
outcome of this appeal. PFR File, Tab 1 at 27; IAF, Tab 5 at 75. To the extent
the appellant is arguing that the relevant CSRS statutory provisions are
unconstitutional by submitting a copy of the Supremacy Clause of the U.S.
Constitution, PFR File, Tab 1 at 26, we decline to consider this argument because
the Board has held consistently that it lacks the authority to adjudicate the
constitutionality of statutes, e.g., Malone v. Department of Justice , 14 M.S.P.R.
403, 406 (1983).
Accordingly, we affirm the initial decision as to the calculation of the
appellant’s post-1956 military service deposit with interest.
We remand the appeal to the regional office for adjudication of the appellant’s
excess deductions claim.
For the following reasons, we remand this appeal to the regional office for
further adjudication of the appellant’s claim that OPM should have allowed him4
to pay his post-1956 military service deposit with his excess deductions. PFR
File, Tab 1 at 5. Under the CSRS, retirement deductions that are taken beyond
approximately 42 years of service are considered “excess deductions” and are
subject to refund under 5 U.S.C. § 8342(h). Maurer v. Office of Personnel
Management, 236 F.3d 1352, 1353 (Fed. Cir. 2001). Section 8342(h) provides
that excess deductions “shall be applied toward any deposit due under [5 U.S.C.
§ 8334]” and that any remaining balance “is deemed a voluntary contribution.”
See Maurer, 236 F.3d at 1354 (construing 5 U.S.C. § 8342(h) as providing for a
repayment of excess deductions only after the sum is used to cover any deposit
due under 5 U.S.C. § 8334).
Here, the administrative judge found that, because the appellant retired
with 32 years, 11 months of service, the Government’s guidance regarding excess
contributions was inapplicable to him. ID at 5 n.1; IAF, Tab 9 at 16.2 The
appellant challenges this finding on review, asserting that he retired with
46 years, 11 months of total creditable service including his 14 years of military
service. PFR File, Tab 1 at 6. For the first time on review, the appellant has
submitted documentation concerning his military service and evidence that he
received notice from OPM that he was due a lump-sum payment for excess
deductions. Id. at 13, 19-22; see 5 C.F.R. § 1201.115(e) (providing that the
Board reserves the authority to consider any issue in an appeal before it).
As an initial matter, we find that the Board has jurisdiction to consider the
appellant’s excess deductions claim because the record reflects that he raised the
issue before OPM with his request for reconsideration, but OPM did not consider
it in its final decision. IAF, Tab 5 at 9-11, 31, 34-36, 40-41; see O’Neill v. Office
of Personnel Management , 102 M.S.P.R. 298, ¶ 10 (2006) (finding jurisdiction
over a matter that OPM failed to address in its final decision despite the
appellant’s repeated requests). In addition, the appellant has continued to raise an
excess deductions claim throughout this Board proceeding, but OPM has not
2 The appellant has resubmitted such guidance on review. PFR File, Tab 1 at 14.5
addressed it. PFR File, Tab 1 at 5-6, 13-14, 18, 33, Tab 4; IAF, Tab 9 at 16, 21,
29-30, Tab 12; see DeGrant v. Office of Personnel Management , 107 M.S.P.R.
414, ¶ 13 (2007) (interpreting OPM’s silence on an issue during the pendency of
the appeal as an indication that it had no intention of issuing a decision on the
matter). Further, we agree with the appellant and find that he performed 46 years,
11 months of combined military and civilian service for purposes of 5 U.S.C.
§ 8342(h). IAF, Tab 5 at 102, 104, 113, 126-29. However, we cannot determine
based on the current record whether the appellant has been prejudiced by OPM’s
failure to apply his excess deductions toward the amount owed for his post-1956
military service deposit with interest in accordance with 5 U.S.C. § 8342(h) or, in
other words, whether the issue is moot. See Haskins v. Department of the Navy ,
106 M.S.P.R. 616, ¶ 22 (2007) (holding that an appeal may not be dismissed as
moot until the agency provides acceptable evidence showing that it has actually
afforded the appellant all of the relief that he could have received if the matter
had been adjudicated and he had prevailed). Therefore, we vacate the
administrative judge’s findings as to the appellant’s excess deductions claim and
remand the appeal to the regional office for further adjudication on that claim.
See, e.g., O’Neill, 102 M.S.P.R. 298, ¶¶ 10-11 (remanding the appeal to the
regional office for further adjudication of a matter over which OPM failed to
address in its final decision).
In light of our decision to remand this appeal, we decline to address the
appellant’s request to “suspend” the initial decision and to refer his case to the
Inspector General for review and a possible investigation. PFR File, Tab 1 at 7-8,
Tab 5 at 4. The petition for review process is the appropriate method for
challenging the initial decision. To the extent the appellant argues that the
administrative judge is biased based on her findings, we find that this is an
insufficient basis to rebut the presumption of honesty and integrity that
accompanies an administrative judge. PFR File, Tab 1 at 3, 7; see Fitzpatrick v.
Department of Justice , 91 M.S.P.R. 556, ¶ 16 (stating that the Board has held that6
an appellant’s disagreement with an administrative judge’s rulings and findings
neither establishes bias nor provides a basis for assigning a new administrative
judge on remand). Moreover, the appellant has failed to explain how any alleged
delay in issuing the initial decision has prejudiced his substantive rights. PFR
File, Tab 1 at 3, 7; see Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶ 6
(2002) (observing that the Board has held that an administrative judge’s delay in
issuing a ruling, without more, does not constitute reversible error).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. In the new initial
decision on the excess deductions claim, the administrative judge should
incorporate by reference her prior analysis and findings regarding the calculation
of the appellant’s post-1956 military service deposit with interest so that he will
have a single decision with appropriate notice of appeal rights addressing those
issues. See, e.g., Goldberg v. Department of Homeland Security , 99 M.S.P.R.
660, ¶ 12 (2005).
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Bridges_William_H_AT-0831-19-0209-I-1_Remand_Order.pdf | 2024-01-26 | WILLIAM H. BRIDGES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-19-0209-I-1, January 26, 2024 | AT-0831-19-0209-I-1 | NP |
2,490 | https://www.mspb.gov/decisions/nonprecedential/Gary_McCreary_DC-0842-18-0185_I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY DONNELL MCCREARY, SR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0842-18-0185-I-1
DATE: January 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gary Donnell McCreary, Sr. , Clinton, Maryland, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management determining
that the appellant was not entitled to a deferred annuity because he already had
received a refund of his retirement contributions to the Federal Employees’
Retirement System. On petition for review, the appellant states only that he is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
“fil[]ing a petition for review.” Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Gary_McCreary_DC-0842-18-0185_I-1_Final_Order.pdf | 2024-01-25 | null | DC-0842-18-0185-I-1 | NP |
2,491 | https://www.mspb.gov/decisions/nonprecedential/Reed_JwyanzaDC-1221-21-0222-W-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JWYANZA REED,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-1221-21-0222-W-3
DATE: January 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jwyanza Reed , Esquire, Greenbelt, Maryland, pro se.
Andrea M. Downing , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
granted in part and denied in part the appellant’s request for corrective action in
her individual right of action appeal. On petition for review, the agency primarily
argues that the administrative judge erred in finding that the appellant made a
protected disclosure. The appellant filed a cross petition for review challenging
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 administrative judge’s determination that the evidence supporting her
placement on leave without pay (LWOP) in March 2020 was strong. 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). As discussed below, we DISMISS the
petition for review due to the agency’s noncompliance with the interim relief
order. We DENY the appellant’s cross petition for review, concluding that she
has not established any basis under section 1201.115 for granting it.2 Therefore,
we AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
BACKGROUND
¶2The appellant filed this appeal alleging, as relevant for purposes of this
discussion, that she was terminated from her Attorney Advisor position during her
trial period for disclosing that requiring her to telework in anticipation of the
COVID-19 pandemic would violate a collective bargaining agreement (CBA)
provision stating that telework was voluntary. Reed v. Department of Health and
Human Services , MSPB Docket No. DC-1221-21-0222-W-1, Initial Appeal File,
Tab 1; Reed v. Department of Health and Human Services , MSPB Docket No.
2 We also deny the appellant’s motion for leave to file a reply to the response to her
cross petition for review. The appellant has not shown that the information she would
submit is material to the outcome of this appeal, nor that it was not readily available
before the record closed on review. Petition for Review File, Tab 12; see 5 C.F.R.
§ 1201.114(k).
3
DC-1221-21-0222-W-3, Appeal File (W-3 AF), Tab 6 at 4-5, Tab 20 at 30-31.
During the appeal, the administrative judge determined that the appellant
exhausted her remedies with the Office of Special Counsel and established Board
jurisdiction over her claim. W-3 AF, Tab 11 at 7-12.
¶3After holding a hearing, the administrative judge concluded in a February
2023 initial decision that the appellant made a protected disclosure about the
alleged CBA violation which was a contributing factor in her termination and that
the agency did not prove by clear and convincing evidence that it would have
terminated her absent her disclosure. W-3 AF, Tab 35, Initial Decision (ID). The
administrative judge ordered as corrective action, among other things, rescission
of the appellant’s September 25, 2020 termination and reinstatement retroactive
to that date. ID at 47-48. The administrative judge also ordered the agency to
provide interim relief effective the date of the initial decision if either party filed
a petition for review. ID at 48-49.
¶4The agency filed a petition for review, as well as a March 29, 2023
certification of compliance with the interim relief order stating that the appellant
had been extended a reinstatement offer to which she had not responded. Petition
for Review (PFR) File, Tabs 1-2. The appellant then moved to dismiss the
agency’s petition for review for noncompliance with the interim relief order. PFR
File, Tab 4. She attached to her motion the agency’s reinstatement offer, her
April 4, 2023 response requesting, among other things, a start date not before
August 28, 2023, and the agency’s same-day answer denying her request and
giving her until April 12, 2023, to accept reinstatement with certain start dates in
April or May 2023. Id. at 8-10. The appellant argued in her motion that she had
not been reinstated, that it was unreasonable for the agency to demand that she
return on the April or May 2023 dates because she had been separated for over
2 years and that the interim relief order did not prevent implementation of a
delayed return date. Id. at 5-6.
4
¶5With its response to the motion to dismiss, the agency attached a Standard
Form 50 showing the appellant’s April 12, 2023 resignation and an agency email
informing the appellant that it interpreted her failure to accept reinstatement and
motion to dismiss the petition for review as a rejection of the reinstatement offer,
and thus rescinded her termination and replaced it with the resignation. PFR File,
Tab 8 at 106, 112-13. The agency also attached the appellant’s response to a
subsequent agency email, in which she asserted that she never resigned, that she
was unwilling to leave her then-current employment, which the agency indicated
was outside the Federal Government, and that it was unreasonable for the agency
to demand her return in April or May 2023, while “actively seek[ing] a decision
that would exclude [her] from the workplace to which [it] currently demands [her]
return.” Id. at 20, 109-111.
ANALYSIS
¶6With exceptions not relevant for purposes of this discussion, 5 U.S.C.
§ 7701(b)(2)(A) provides that if an employee prevails in a Board appeal, she shall
be granted the relief provided in the decision effective upon the making of the
decision and remaining in effect pending the outcome of any petition for review.
As noted previously, in the initial decision, the administrative judge ordered the
agency to, among other things, rescind the appellant’s September 25, 2020
termination, reinstate the appellant retroactive to her termination, and provide her
interim relief in accordance with 5 U.S.C. § 7701(b)(2)(A) if either party filed a
petition for review. ID at 47-49. Thus, based on statutory language and the
administrative judge’s order, the agency was required to reinstate the appellant
effective the date of the initial decision. See Johnson v. Department of Veterans
Affairs, 2023 MSPB 9, ¶ 7 (stating that interim relief generally requires returning
the appellant to duty and providing her with the pay and benefits of employment).
By refusing to return to work on the terms set by the agency, the appellant did not
forfeit her right to reinstatement. See Abbott v. Department of Veterans Affairs ,
5
67 M.S.P.R. 124, 129 (1995) (finding an agency not in compliance with an
interim relief order when it interposed conditions on the appellants’ return to
duty). Because the agency denied the appellant this right by processing a
resignation, rather than reinstating her, we conclude that the agency has not
complied with the interim relief order and dismissal of the petition for review is
appropriate. See Lambert v. Department of the Navy , 85 M.S.P.R. 130, ¶ 8 (2000)
(dismissing an agency’s petition for review for failure to reinstate an appellant
effective the date of an initial decision as required by an interim relief order).
¶7In so concluding, we do not assert that the agency lacked any options in
responding to the appellant’s request for a delayed start date. For example, the
Board has found that placement of appellants on LWOP status based on refusals
to report for duty during interim relief periods did not violate interim relief
orders. Byers v. Department of Veterans Affairs , 89 M.S.P.R. 655, ¶¶ 9, 12
(2001); Wilson v. Department of Justice , 68 M.S.P.R. 303, 308-09 (1995); cf.
Johnson, 2023 MSPB 9, ¶¶ 8-9 (finding that an agency’s placement of an
appellant on LWOP status without making any effort to resume pay during the
interim relief period warranted dismissal of its petition for review). It is well
settled that an interim relief order does not insulate an appellant from subsequent
agency action as long as that action is not inconsistent with the initial decision.
Rutberg v. Occupational Safety and Health Review Commission , 78 M.S.P.R. 130,
135 (1998). But in denying the appellant the reinstatement ordered by the
administrative judge, the agency’s unilateral, involuntary resignation of the
appellant was inconsistent with the interim relief order and accordingly cannot
stand. See Russell v. Department of Justice , 74 M.S.P.R. 289, 293-94 (1997)
(ordering an agency to hold harmless and reimburse an appellant for expenses
related to a unilateral, involuntary, and improper geographic reassignment in
violation of an interim relief order).
6
ORDER
¶8We ORDER the agency to cancel the appellant’s termination, reinstate her
effective September 25, 2020, and cancel the appellant’s April 12, 2023
resignation.3 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.
¶9We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶10We 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).
¶11No 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).
3 We find that appropriate corrective action under subsections (e)(1) and (g)(1)(A)(i) of
5 U.S.C. § 1221, in order to place the appellant as nearly as possible in the position she
would have occupied had the prohibited personnel practice not occurred, necessarily
includes cancelation of the April 12, 2023 resignation.
7
¶12For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
8
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
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.
10
(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:
11
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.
12
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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. | Reed_JwyanzaDC-1221-21-0222-W-3_Final_Order.pdf | 2024-01-25 | JWYANZA REED v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-1221-21-0222-W-3, January 25, 2024 | DC-1221-21-0222-W-3 | NP |
2,492 | https://www.mspb.gov/decisions/nonprecedential/Rodriguez_Catarino_NY-1221-22-0134-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CATARINO RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
NY-1221-22-0134-W-1
DATE: January 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Michael John Borrelli , Esquire, Alexander T. Coleman , Esquire, Ryan T.
Holt , Esquire, and Lauren R. Reznick , Esquire, Garden City, New York,
for the appellant.
Luis A. Garcia , Los Angeles, California, for the agency.
Danielle L. Jaberg , Esquire, and David M. Kahn , Esquire, San Francisco,
California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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 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 New York Field Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
At all times relevant to this appeal, the appellant has been employed as a
GS-11 Wage and Hour Investigator in the Department of Labor, Wage and Hour
Division’s Long Island District Office. Initial Appeal File (IAF), Tab 11 at 19.
He alleges that, in December 2016, he was assigned to investigate possible
violations of the Fair Labor Standards Act (FLSA) committed by a horse trainer
at Belmont Racetrack. IAF, Tab 17 at 5. He determined that the subject horse
trainer owed his employees approximately $140,000 in unpaid wages and an
additional $13,900 as a civil money penalty. Id. In November 2018, he provided
his findings to the subject’s attorney along with a back pay compliance
agreement. Id. Shortly thereafter, the attorney informed him that his client was
unwilling to pay the amount calculated because it was significantly more than
other horse trainers at Belmont were paying to settle their wage-related violations
with the agency. Id. Specifically, the attorney supplied that one horse trainer
received a deal from the agency requiring her to pay only $50,000 of the close to
$1 million in wages that she had owed—or so his client had heard. Id. at 5-6, 81.
The appellant alleges that, in December 2018, he reported the attorney’s
statements about the supposed settlement to an Assistant District Director (ADD)
and District Director (DD) in-person, and he followed-up via email. Id. at 6. He
expressed uncertainty regarding the truth of the settlement in his email, stating, “I
am not sure if any of this is correct, but since the attorney was questioning if
there was any impropriety involved I thought it was necessary to bring this
information to a manager.” Id. at 81. According to the appellant, the Office of
Inspector General (OIG) came to the Long Island District Office the following
month to investigate the matter and requested all files related to wage
investigations of horse trainers at Belmont, which the appellant allegedly turned2
over. Id. at 6. He also learned around that time that his first-line supervisor had
overseen the supposed settlement. Id.
According to the appellant, his first-line supervisor began treating him
differently because he believed that the appellant reported the matter to OIG. Id.
at 6. Among other things, he alleges that his supervisor began micro-managing
his investigations and gave substantial resistance to his cases moving forward.
Id.; IAF, Tab 1 at 17 . He alleges that he began working with OIG as a
cooperating witness and wore a hidden recording device to the office on multiple
occasions to record his conversations with his supervisor. IAF, Tab 17 at 6,
83-85. He alleges that he requested a new supervisor, which his second-line
supervisor denied, and received a negative performance review in October 2019,
which resulted in the agency’s denial of his within-grade increase in pay. Id.
at 7-8; IAF, Tab 1 at 21.
Thereafter, the appellant filed a complaint with the Office of Special
Counsel (OSC). IAF, Tab 1 at 9-26. He alleged retaliation for disclosing to ADD
and DD on December 21, 2018, “possible impropriety on an investigation (FLSA,
H2B), reported to [him] by an attorney,” id. at 17-18, and protected activity of
cooperating in an OIG investigation, id. at 20-21. On April 27, 2022, OSC
notified the appellant that it was terminating its investigation into his complaint.
Id. at 27.
The appellant timely filed an IRA appeal with the Board. Id. at 1-5. The
administrative judge assigned to this matter issued a jurisdictional order wherein
she explained the circumstances under which the Board has jurisdiction to
adjudicate IRA appeals, and she ordered the appellant to file specific evidence
and argument regarding jurisdiction. IAF, Tab 14 at 2-8. Following the parties’
responses, IAF, Tabs 17-18, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction, IAF, Tab 19, Initial Decision (ID)
at 14. She identified the following three alleged protected whistleblower
disclosures or activities: (1) the disclosure to ADD and DD in December 20183
regarding the supposed settlement (disclosure 1); (2) the turnover of files to OIG
in January 2019 (disclosure 2); and (3) cooperation with OIG in February 2019 by
wearing a hidden recording device to record conversations with his first-line
supervisor and sharing his recordings with OIG (disclosure 3).2 ID at 7-8.
However, she found that the appellant did not nonfrivolously allege that he made
disclosures protected by the Whistleblower Protection Act (WPA), as amended, or
engaged in activity protected under the WPA, as amended. ID at 12-14.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 5. The agency has responded in opposition, PFR File, Tab 11, and the
appellant has replied, PFR File, Tab 19.3
ANALYSIS
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). Edwards v. Department of Labor , 2022 MSPB 9, ¶ 8, aff’d,
No. 22-1967 (Fed. Cir. Jul. 7, 2023); Salerno v. Department of the Interior ,
2 For ease of reference, we will also refer to the alleged protected disclosures or
activities as disclosures 1, 2, and 3 regardless of whether they qualify as protected
disclosures or activities.
3 The appellant’s reply brief contains evidence that was not submitted into the record
before the administrative judge. PFR File, Tab 19 at 17-21. 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 close of the record below despite the party’s
due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). However,
the Board may consider submissions relevant to the issue of Board jurisdiction, a matter
that may be raised at any time during the Board proceedings. See Pirkkala v.
Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016). Thus, we have considered this
evidence, but it does not affect our findings herein. 4
123 M.S.P.R. 230, ¶ 5 (2016). 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. 5 U.S.C. § 1221(e)
(1)-(2); Salerno, 123 M.S.P.R. 230, ¶ 5; see Carr v. Social Security
Administration, 185 F.3d 1318, 1322-23 (Fed. Cir. 1999).
On review, the appellant agrees with the administrative judge’s
identification of his three alleged protected disclosures. PFR File, Tab 5 at 8.
However, he contends that she committed the following three errors:
(1) regarding disclosure 1, she erroneously found that the appellant failed to
allege a reasonable belief that a violation of law or abuse of authority had
occurred; (2) relying on pre-WPEA case law, she erroneously found that the
appellant’s disclosures or activities were not protected because they were made in
the course of his normal duties; and (3) she provided no analysis whatsoever
regarding disclosure 3, i.e., the appellant’s act of wearing a hidden recording
device in cooperation with OIG, and that disclosure 3 constituted a protected
activity under 5 U.S.C. § 2302(b)(9)(C). Id. at 11. The agency submitted
thorough arguments as well. PFR File, Tab 11. We find the appellant’s second
and third arguments compelling and conclude that he has established jurisdiction
over his IRA appeal for the reasons discussed below.
The appellant satisfied his obligation to exhaust his remedies with OSC.
In response to the appellant’s petition for review, the agency argues that
the appellant did not exhaust alleged disclosure 2 or 3 with OSC. PFR File,
Tab 11 at 12-15. The administrative judge did not address this issue, having5
found that the appellant did not nonfrivolously allege that he made a protected
disclosure or engage in protected activity.4 ID at 12-14.
To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an
appellant must have provided OSC with a sufficient basis to pursue an
investigation into his allegations of whistleblower reprisal. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 7; Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶ 10. An appellant may give a more detailed
account of his whistleblowing activities before the Board than he did to OSC.
Briley v. National Archives and Records Administration , 236 F.3d 1373, 1378
(Fed. Cir. 2001); Chambers, 2022 MSPB 8, ¶ 10. Here, the appellant provided in
his OSC complaint that he was retaliated against for being “a cooperating witness
with OIG Agent through[ou]t her investigation and [was] currently and actively
assisting as needed.” IAF, Tab 1 at 20. He provided some details regarding the
subject of the investigation and identified by name several personnel who were
implicated by the investigation. Id. at 20-21. OSC, as indicated in its notice to
the appellant that it was terminating his inquiry, recognized the core of the
appellant’s complaint: he had alleged retaliation for participating in an OIG
investigation. Id. at 27. Accordingly, we find that the appellant provided OSC
with a sufficient basis to pursue an investigation and has satisfied his obligation
to exhaust his remedies with OSC for alleged disclosures 2 and 3. See Briley, 236
F.3d at 1378.
The parties do not appear to dispute the issue of exhaustion as it pertains to
alleged disclosure 1, i.e., the appellant’s disclosure to ADD and DD in
4 The administrative judge addressed exhaustion only as it pertains to the alleged
personnel actions, finding that the appellant exhausted seven out of nine of his alleged
personnel actions with OSC. ID at 10-12; IAF, Tab 7 at 12-29. The appellant expressly
states that he is not challenging this finding on review, PFR File, Tab 5 at 9 n.2, and the
agency does not raise exhaustion of the alleged personnel actions as an issue either,
PFR File, Tab 11. We see no reason to disturb the administrative judge’s finding on
this issue. 6
December 2018. We find that the appellant satisfied his obligation to exhaust his
remedies with OSC for this alleged protected disclosure. IAF, Tab 1 at 16-17.
The appellant did not nonfrivolously allege that he made a protected disclosure.
The appellant avers that, suspecting a “possible impropriety” in a deal a
horse trainer at Belmont had supposedly received from the agency regarding her
wage-related violations, he verbally reported the alleged deal to ADD and DD,
first in-person, then with a follow-up email confirming their conversation
(disclosure 1). PFR File, Tab 5 at 8; IAF, Tab 17 at 5-6, 20, 81. He alleges that
this report was a protected disclosure of a violation of law, rule, or regulation,
and/or an abuse of authority. PFR File, Tab 5 at 12. The administrative judge
found that the disclosure was not protected because the appellant did not have a
reasonable belief that a violation of law, rule, or regulation or other circumstance
contemplated by the WPEA had occurred. ID at 12-13. She cited the appellant’s
email evidencing that “he was not sure if any of this is correct,” referring to the
alleged deal, at the time of his disclosure and his statement in his pleadings that
“the commencement of the OIG investigation affirmed [his] belief that what he
had reported was true.” Id.; IAF, Tab 17 at 6, 81.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno,
123 M.S.P.R. 230, ¶ 6 (2016). The proper test for determining whether an
employee had a reasonable belief that his disclosures were protected is whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions
evidenced a violation of a law, rule, or regulation, or one of the other conditions
set forth in 5 U.S.C. § 2302(b)(8). Id. Any doubt or ambiguity as to whether the
appellant has made a nonfrivolous allegation of a reasonable belief should be7
resolved in favor of affording the appellant a hearing. Huffman v. Office of
Personnel Management , 92 M.S.P.R. 429, ¶ 13 (2002).
However, an appellant does not make a nonfrivolous allegation that he
made a protected disclosure if his disclosure appears to indicate that he is
reporting unsubstantiated rumors or that he lacked a firm belief that wrongdoing
had occurred. Id., ¶ 10; see, e.g., Johnson v. Department of Justice , 104 M.S.P.R.
624, ¶¶ 14-15 (2007); see generally Shannon v. Department of Veterans Affairs ,
121 M.S.P.R. 221, ¶ 32 (2014) (finding that, applying the disinterested observer
standard, it was necessary for the administrative judge to determine whether the
appellant reasonably believed that the alleged misconduct described in the
disclosures occurred). Here, the appellant states that the only information known
to him about the possible improper settlement came from the subject of his
investigation’s attorney, who heard it from his client, who heard it from a source
who may or may not have been the primary source, i.e., the horse trainer who
received the supposed settlement. IAF, Tab 17 at 5-6, 81. The appellant
expressly stated in his disclosure, “I am not sure if any of this is correct.” Id.
at 81. We find that a disinterested observer would also lack a firm belief in the
truth of this information: in considering his degree of removal from someone
with actual knowledge of the settlement, he would find this information to be
attenuated and unreliable. We recognize that, in a disinterested observer’s mind,
the more specific the information the more reliable it may seem, and, here, the
information included some aspects about the settlement such as the approximate
dollar amount and the name of the horse trainer involved. However, we do not
find that a disinterested observer would firmly believe this third-hand or fourth-
hand information to be true absent any substantiation. Cf. Rice v. Department of
Agriculture, 97 M.S.P.R. 501 (2004) (finding an appellant’s belief to be based on
more than an unsubstantiated rumor when he named the sources of his
information and referred to specific documents evidencing wrongdoing). 8
The appellant argues that the fact that OIG found the allegation to be
worthy of an investigation provides additional evidence that a belief that
wrongdoing had occurred was reasonable. PFR File, Tab 5 at 14. Under the
circumstances of this case, where the unreasonableness of the belief pertains to
the veracity of the information rather than whether the information evidences
wrongdoing under section 2302(b)(8), we disagree that a subsequent OIG
investigation provides much weight. Cf. Armstrong v. Department of Justice ,
107 M.S.P.R. 375, 384 n.6 (2007) (finding that the agency’s investigation into
allegedly arbitrary promotion practices weighed in the appellant’s favor regarding
the issue of whether the appellant reasonably believed the practices constituted an
abuse of authority), overruled on other grounds by Edwards, 2022 MSPB 9,
¶¶ 18-20. We agree with the administrative judge that the appellant did not
nonfrivolously allege that disclosure 1 was a protected disclosure under section
2302(b)(8) because he lacked a reasonable belief that the wrongdoing had
occurred.
The administrative judge provided another reason for why the appellant’s
disclosure was not protected: the appellant was merely performing his normal
duties when he learned of the alleged misconduct. ID at 13. The appellant
challenges this finding on review. PFR File, Tab 5 at 14-15. We agree with the
appellant that the administrative judge’s finding was erroneous because the
enactment of the WPEA superseded the case law on which she relied. WPEA,
Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codified at 5 U.S.C.
§ 2302(f)(2) (2012)); see Salazar v. Department of Veterans Affairs , 2022 MSPB
42, ¶¶ 10-11. Under the WPEA, a whistleblower is not deprived of protection just9
because the disclosure was made in the normal course of an employee’s duties.5
Salazar, 2022 MSPB 42, ¶ 10. Nevertheless, this fact does not affect our finding
that the appellant has not made nonfrivolous allegations that his disclosure was
protected under section 2302(b)(8).
The appellant nonfrivolously alleged that he engaged in protected activity.
Disclosures 2 and 3 pertain to the appellant’s alleged cooperation with
OIG. IAF, Tab 17 at 6-7; PFR File Tab 5 at 8. The administrative judge
considered these alleged disclosures as alleged protected activity under section
2302(b)(9)(A)(i), which includes “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 13-14. Having found that
the appellant’s act of handing over files to OIG did not seek to remedy alleged
whistleblower reprisal under section 2302(b)(8), and that OIG’s investigation
stemmed from the appellant’s discovery while performing his normal duties, she
concluded that the appellant failed to nonfrivolously allege that he engaged in
protected whistleblower activity. ID at 14.
On review, the appellant argues that cooperation with an OIG investigation
is expressly protected under 5 U.S.C. § 2302(b)(9)(C) and, thus, he
nonfrivolously alleged that he engaged in protected activity. PFR File, Tab 5
at 16-17. We agree. Under 5 U.S.C. § 2302(b)(9)(C), “cooperating with or
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law” is a protected
5 Disclosures made in an employee’s normal course of duties fall under the generally
applicable 5 U.S.C. § 2302(b)(8) unless the employee’s principal job function is to
regularly investigate and disclose wrongdoing. See Salazar, 2022 MSPB 42, ¶¶ 10-11.
An employee whose principal job function is to regularly investigate and disclose
wrongdoing must meet a slighter higher burden to show that his disclosure is protected.
Id.; see 5 U.S.C. § 2302(f)(2). Considering our finding that the appellant has not
nonfrivolously alleged that he made a protected disclosure under 2302(b)(8), we need
not determine whether the slightly higher burden applies here. 10
whistleblower activity. See Edwards, 2022 MSPB 9, ¶ 29.6 Furthermore, unlike
protected “disclosures” under 5 U.S.C. § 2302(b)(8), 5 U.S.C. § 2302(b)(9)(C)
does not require proof that the employee has a reasonable belief that he is
disclosing wrongdoing. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 62. Here, the appellant alleges that, in January 2019, he
provided OIG all his case files related to the investigation of horse trainers at
Belmont at OIG’s request (disclosure 2), and, beginning in February 2019, he
began assisting an OIG investigator by wearing a hidden recording device to the
office to record his conversations with his first-line supervisor (disclosure 3).7
IAF, Tab 17 at 6-7, 83-85. These allegations clearly give rise to the Board’s
jurisdiction under section 2302(b)(9)(C).
The appellant nonfrivolously alleged that he was subjected to at least one
personnel action.
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. Under the WPEA,
“personnel actions” are defined as follows: (i) appointments; (ii) promotions;
6 Because the appellant’s alleged activity occurred after December 12, 2017, it falls
within the coverage of section 2302(b)(9)(C) as amended by section 1097(c)(1) of the
National Defense Authorization Act of 2018, Pub. L. No. 115-91, 131 Stat. 1283
(2017).
7 In response to the appellant’s petition for review, the agency argues that these alleged
activities are too vague to satisfy the nonfrivolous allegation standard. PFR File,
Tab 11 at 13. Regarding “disclosure” 2, the agency argues that the appellant was
required to allege to whom and how OIG made the file request and how the file was
collected. Id. Regarding “disclosure” 3, the agency argues that his assertion that he
was a cooperating witness is a mere bald allegation. Id. at 14. As the U.S. Court of
Appeals for the Federal Circuit has explained: “[T]he question of whether the appellant
has non-frivolously alleged protected disclosures [or activities] that contributed to a
personnel action must be determined based on whether the employee alleged sufficient
factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami
v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020); see
also Gabel v. Department of Veterans Affairs , 2023 MSPB 47 at 6-7, 83-85.11
(iii) actions under 5 U.S.C. chapter 75 or other disciplinary or corrective actions;
(iv) details, transfers, or reassignments; (v) reinstatements; (vi) restorations;
(vii) reemployments; (viii) performance evaluations under 5 U.S.C. chapter 43 or
under Title 38; (ix) decisions regarding pay, benefits, or awards, or involving
education or training if it reasonably may be expected to lead to an appointment,
promotion, performance evaluation, or other action described in 5 U.S.C.
§ 2302(a)(2)(A); (x) decisions to order psychiatric testing or examination;
(xi) implementations or enforcements of any nondisclosure policy, form, or
agreement; and (xii) any other significant changes in duties, responsibilities, or
working conditions. 5 U.S.C. § 2302(a)(2)(A); Cooper v. Department of Veterans
Affairs, 2023 MSPB 24, ¶ 9.
The appellant alleges that, beginning in January 2019, after he turned over
his files to OIG, his first-line supervisor engaged in the following retaliatory
actions: assigned him menial tasks, micro-managed his investigations, and gave
substantial resistance to his attempts to move cases forward. IAF, Tab 17 at 6;
PFR File, Tab 5 at 9. Sometime following, his second-line supervisor refused his
request for a new first-line supervisor. IAF, Tab 17 at 7; PFR File, Tab 5 at 9.
He also alleges that, in October 2019, his first-line supervisor gave him a
negative performance review by rating him “minimally successful,” and he was
subject to a denial of a within-grade pay increase as a result. ID at 11; IAF,
Tab 17 at 7; PFR File, Tab 5 at 9. We find that the appellant has made
nonfrivolous allegations of at least one personnel action—under section 2302(a)
(viii), (ix), or (xii).
The appellant nonfrivolously alleged that the protected activity was a contributing
factor in the agency’s decision to take or fail to take an alleged personnel action.
The last element to Board jurisdiction over an IRA appeal is for the
appellant to nonfrivolously allege that his protected activity was a contributing
factor in the agency’s decision to take or fail to take a personnel action. Carney
v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 7 (2014). An employee12
may establish, for jurisdictional purposes, that a protected activity was a
contributing factor to covered personnel actions through circumstantial evidence,
such as the acting official’s knowledge of the protected activity and the timing of
the personnel actions. Id. An appellant’s nonfrivolous allegation 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 is
sufficient to meet the knowledge/timing test and to satisfy the appellant’s burden
to make a nonfrivolous allegation of a contributing factor. Id. The Board has
held that personnel actions occurring within 1 to 2 years of the protected
disclosure or activity are sufficient to meet the timing prong of the
knowledge/timing test. Pridgen, 2022 MSPB 31, ¶ 63.
Here, the appellant alleges that his first-line supervisor believed that he
disclosed information about the possible improper settlement to OIG, prompting
its investigation in January 2019. IAF, Tab 17 at 6. He further alleged that, after
OIG agents arrived at the Long Island District Office in January 2019 and
requested all files related to wage investigations, his first-line supervisor began
pressuring him to change his calculation of overtime damages in his investigation
to make his findings appear consistent with the case that was being investigated.
Id. at 6-7, 20; PFR File, Tab 5 at 13. From this allegation, we easily infer a
premise that the first -line supervisor knew that appellant was or would be
providing these files to OIG. Finally, the appellant alleges that all employees in
the office found out about his disclosures and/or activities after he complained to
his second-line supervisor and requested a change in supervisor, and that several
individuals in the office advised him that he was being targeted because of his
cooperation with OIG. PFR File, Tab 17 at 24.
Because the appellant has made nonfrivolous allegations that the agency
actors involved in the personnel actions believed that he cooperated with or
disclosed information to OIG, he has satisfied the knowledge prong of the13
knowledge/timing test at the jurisdictional stage.8 See, e.g., Carney,
121 M.S.P.R. 446, ¶¶ 7-12 (2014). Furthermore, the appellant has satisfied the
timing prong of the knowledge/timing test, as all alleged personnel actions
occurred within 1 year of the appellant’s alleged protected activity. See Pridgen,
2022 MSPB 31, ¶ 63. Thus, we conclude that the appellant’s allegations are
sufficient to meet the contributing factor criterion under the knowledge/timing
test at the jurisdictional stage.
ORDER
Having found that the appellant has met his jurisdictional burdens, we
conclude that he is entitled to a hearing on the merits of his claim. Salerno,
123 M.S.P.R. 230, ¶ 5. We remand this case to the field office for further
adjudication in accordance with this Order.9
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
8 At this stage, we need not determine whether the appellant has made nonfrivolous
allegations that the agency actors knew all the specifics of his cooperation in the OIG
investigation, e.g., his alleged activity of wearing the recording device to the office to
record conversations with his first-line supervisor (disclosure 3).
9 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.14 | Rodriguez_Catarino_NY-1221-22-0134-W-1__Remand_Order.pdf | 2024-01-25 | CATARINO RODRIGUEZ v. DEPARTMENT OF LABOR, MSPB Docket No. NY-1221-22-0134-W-1, January 25, 2024 | NY-1221-22-0134-W-1 | NP |
2,493 | https://www.mspb.gov/decisions/nonprecedential/Lastra_Daniel_SF-0432-18-0143-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL LASTRA,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
SF-0432-18-0143-I-1
DATE: January 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephanie F. Dominguez , Esquire, and Nicole T. Sebial , Esquire, Grand
Terrace, California, for the appellant.
Chieko Clarke , Esquire, and Josh Hildreth , Esquire, Alexandria, Virginia,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL 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. The appellant has also filed a motion for waiver of interim relief. For
the reasons discussed below, we GRANT the appellant’s motion for waiver 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).
interim relief, DENY the agency’s petition for review, and DENY the appellant’s
cross petition for review. Except as expressly MODIFIED by this Final Order to
revise the administrative judge’s analyses of the appellant’s allegations of
retaliation for requesting reasonable accommodation and disparate treatment
disability discrimination, we AFFIRM the initial decision.
BACKGROUND
The agency removed the appellant from his Patient Examiner position for
performance reasons. Initial Appeal File (IAF), Tab 12 at 51. On appeal, he
challenged the action and alleged that, in taking it, the agency discriminated
against him on the bases of race/national origin (Hispanic), disability, and age,
and retaliated against him for filing a reasonable accommodation request. IAF,
Tab 1 at 6. After a hearing, the administrative judge found that the agency had
violated the appellant’s due process rights, consistent with the decision of our
reviewing court in Stone v. Federal Deposit Insurance Corporation , 179 F.3d
1368 (Fed. Cir. 1999), and that therefore, the action must be reversed.1 IAF
Tab 54, Initial Decision (ID) at 1, 7-14. The administrative judge considered the
appellant’s affirmative defenses, finding none sustained, and ordered the agency
to afford the appellant interim relief, if either party filed a petition for review. ID
at 14-28.
On review, the agency argues that the administrative judge erred in finding
that it violated the appellant’s due process rights in taking the action. Petition for
Review (PFR), Tab 3. We have carefully considered the agency’s arguments but
find that the agency has not provided a reason to disturb the administrative
judge’s well-reasoned findings. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98,
1 Our reviewing court’s reasoning rests on the Supreme Court’s decision in Cleveland
Board of Education v. Loudermill , 470 U.S. 532, 538-39, 546 (1985) (holding that a
tenured public employee has a property interest in ongoing employment and that an
agency may not deprive such an employee of his property rights without due process of
law, including the right to prior notice of the evidence against him and an opportunity
to respond). 2
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
where the administrative judge 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 appellant has filed a motion for waiver of interim relief, PFR File,
Tab 5, and a cross petition for review, PFR File, Tab 6. We address both of these
matters below. In addition, we modify the administrative judge’s analyses of the
appellant’s allegations of retaliation for seeking reasonable accommodation and
disparate treatment disability discrimination to apply the appropriate standards to
those claims, but find that, even under the proper standards, the appellant did not
establish his claims.
ANALYSIS
The appellant’s motion for waiver of interim relief is granted.
As noted in her initial decision, the administrative judge ordered the
agency to provide the appellant with interim relief, if either party filed a petition
for review. ID at 28. The agency has not, with its petition for review, provided
evidence of interim relief or otherwise addressed the administrative judge’s order
for such. PFR File, Tab 3. The appellant has filed a motion, stating that, because
he is currently receiving a retirement annuity from the Office of Personnel
Management (OPM), and believes it would be more prudent to await the Board’s
final decision, he wishes to waive his right to interim relief. PFR File, Tab 5
at 4-6.
The Board’s regulations are silent on the issue of the waiver of interim
relief. However, in certain cases where the appellant has an alternative source of
income derived from Governmental benefits, the Board has held that it is
generally inappropriate for the administrative judge to order interim relief. See,
e.g., Evono v. Department of Justice , 69 M.S.P.R. 541, 544 (1996) (finding that
interim relief generally should not be ordered when an appellant is receiving3
Office of Workers’ Compensation Programs benefits at the time an initial
decision is issued); Siu v. Office of Personnel Management , 59 M.S.P.R. 394, 396
(1993) (finding that an administrative judge generally should not order interim
relief in a retirement appeal in which the appellant seeks additional benefits when
he is already receiving retirement benefits from OPM) . Although neither of these
cases specifically addresses the appellant’s situation, the intent of interim relief is
to protect the appellant from hardship during the pendency of the petition for
review if he prevails in the initial decision. Kolenc v. Department of Health and
Human Services , 120 M.S.P.R. 101, ¶ 10 (2013); Smith v. Department of Veterans
Affairs, 59 M.S.P.R. 340, 350 (1993). Therefore, in accordance with the remedial
purpose of the interim relief provisions, the option to accept or decline interim
relief rests with the appellant.2 Smith, 59 M.S.P.R. at 350 (finding without merit
the agency’s objection to the appellant’s motion to waive interim relief) .
Under the circumstances, and noting that the agency has not challenged it,
we grant the appellant’s motion for waiver of interim relief . PFR File, Tab 8 . If
issues arise as a result of the Board’s order to reinstate the appellant, he may raise
them in a petition for enforcement before the administrative judge, after issuance
of this final decision.
The appellant’s allegations of discrimination and retaliation are denied.
The appellant has not, in his cross petition for review, challenged the
administrative judge’s findings not sustaining any of his allegations of
discrimination and retaliation. PFR File, Tab 6 at 26-27. Specifically, the
administrative judge found that the appellant did not show that either his age or
his race/national origin was a motivating factor in the agency’s action and that
therefore those affirmative defenses were denied. ID at 14-17. The
2 OPM’s regulations provide that interim relief ordered in an initial decision can end
when, inter alia, an employee requests that such interim relief be canceled. See
5 C.F.R. § 772.102(b)(3). Although the Board is not required to defer to OPM’s
regulations concerning interim relief, see, e.g., Ginocchi v. Department of the Treasury ,
53 M.S.P.R. 62, 71 n.7 (1992), we find it appropriate to consider them.4
administrative judge applied the same analysis to the appellant’s allegation of
retaliation and denied it as well. Id. As to the appellant’s claim of disability
discrimination, the administrative judge found that, while he was disabled by
Parkinson’s disease and was a qualified person with a disability, ID at 18, he did
not establish either that he was subject to disparate treatment because of his
disability, ID at 17-22, or that the agency did not accommodate him regarding
two alleged oral requests for accommodation, ID at 22-27. With the exceptions
addressed below, our review of these findings does not suggest any reason to
reweigh the evidence or substitute our assessment of the evidence for that of the
administrative judge. Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R.
at 359; see Haebe v. Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002)
(finding that the Board may overturn an administrative judge’s credibility
determinations only when it has “sufficiently sound” reasons for doing so). The
appellant’s failure to challenge any of the administrative judge’s findings and
credibility determinations related to his affirmative defenses does not provide a
basis to disturb the administrative judge’s conclusions. Gager v. Department of
the Commerce, 99 M.S.P.R. 216, ¶ 5 (2005).
The administrative judge considered the appellant’s claim of retaliation for
requesting reasonable accommodation as a claim of retaliation for engaging in
protected equal employment opportunity (EEO) activity. ID at 7, 14 -17. As with
the appellant’s claims of discrimination based on age and race/national origin, the
administrative judge found that he did not meet his burden of showing that his
request for reasonable accommodation was a motivating factor in the contested
personnel action. ID at 14-17.
In Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 46,
which was decided after the issuance of the initial decision in this case, the Board
held that claims of retaliation under the Americans with Disabilities Act (ADA)
are to be analyzed solely under a but-for causation standard. The Board stated
that it applies standards under the ADA, as amended by the Americans with5
Disabilities Act Amendments Act of 2008, to determine whether there has been a
violation of the Rehabilitation Act. Id., ¶ 35. The Rehabilitation Act protects
reasonable accommodation requests—the protected activity at issue in the
appellant’s retaliation claim. Id., ¶ 44. Nevertheless, because we agree with the
administrative judge’s unchallenged determination that the appellant did not
prove his ADA reprisal claim under the lesser motivating factor standard, the
appellant necessarily did not satisfy the more stringent standard of proving that
he would not have been removed but for his reasonable accommodation requests.
See Haas v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 31-32 (finding
that an employee who did not meet the lesser motivating factor standard
necessarily did not meet the more stringent but-for standard applicable to his
ADA reprisal claim).
In analyzing the appellant’s allegation of disability discrimination, the
administrative judge found that the appellant did not show that he was subjected
to disparate treatment based on his disability, ID at 19-22, or that the agency did
not accommodate him,3 ID at 22-27. The administrative judge denied the
appellant’s disparate treatment disability discrimination claim on the grounds that
the appellant did not establish a prima facie case under the framework from
McDonnell Douglas Corporation v. Green , 411 U.S. 792, 802-05 (1973). ID
at 19-22.
In Pridgen, 2022 MSPB 31, ¶ 25 (internal quotations omitted), the Board
approved the use of the McDonnell Douglas framework, not as a rigid,
mechanized methodology, but as a sensible, orderly way to evaluate evidence of
employment discrimination. We therefore take no issue with the application of
the framework for that purpose. However, an appellant may prove a claim of
3 As the administrative judge noted, the parties stipulated that the appellant made two
requests for reasonable accommodation which the agency granted, that is, he was
granted full-time telework with no reporting requirement and his duty station was
changed to a location agreeable to him. ID at 23; IAF, Tab 46 at 7, 8. The appellant
alleged that he made two additional oral requests for accommodation, but the
administrative judge found that he did not do so. ID at 23-24.6
disparate treatment disability discrimination under the motivating factor standard.
Id., ¶ 42.
Ultimately, however, application of the Pridgen standards does not require
disturbing the administrative judge’s denial of the appellant’s disparate treatment
disability discrimination claim. In denying the claim, the administrative judge
found, among other things, that there was no evidence that the appellant’s
disability was considered at any point in the performance improvement process.
ID at 20-22. In light of the administrative judge’s unchallenged findings
supporting the denial, we conclude that the appellant did not establish even the
lower burden set forth in Pridgen that his disability was a motivating factor in his
removal.
The appellant’s cross petition for review is denied.
In his cross petition for review, the appellant argues only that, should he
prevail on review, he is entitled to “front pay”4 as well as back pay. PFR File,
Tab 6 at 26. He expresses his belief that reinstatement would not be an
appropriate remedy because his former supervisor’s hostility toward him
aggravates the symptoms of his Parkinson’s disease, making a productive and
amicable working relationship impossible. Id. at 27.
In some instances, returning an employee to his former position has been
found to be an inappropriate remedy for discrimination. See, e.g., Lewis v.
Federal Prison Industries, Incorporated , 953 F.2d 1277, 1279-81 (11th Cir.
1992) (finding the remedy of “front pay,” rather than reinstatement, appropriate
when a discriminatory work environment rendered the employee unfit to return to
that environment, and when only a short time remained until his mandatory
retirement); Equal Employment Opportunity Commission v. Prudential Federal
Savings and Loan Association , 763 F.2d 1166, 1172-73 (10th Cir. 1985) (finding
that reinstatement may not be appropriate when an employer has exhibited
4 Front pay is defined as court-ordered compensation for the post-judgment effects of
continuing employment discrimination. Black’s Law Dictionary 784 (10th ed. 2014).7
extreme hostility, making a productive and amicable working relationship
impossible).
The Board has not addressed whether, or to what extent, it has the authority
to award front pay. Garrison v. Department of the Navy, 88 M.S.P.R 389,
¶ 11, n.* (2001). We need not reach the issue of whether front pay would be
appropriate in this case because the appellant has not prevailed on any of his
discrimination claims. ID at 14-27. In any event, if issues arise as a result of the
Board’s order to reinstate the appellant, he can raise them in a petition for
enforcement before the administrative judge, after issuance of this final decision.
In sum, we agree with the administrative judge that the appellant’s removal
must be reversed. The agency may not remove the appellant unless and until he
is afforded a new “constitutionally correct removal procedure.” Lopes v.
Department of the Navy , 116 M.S.P.R. 470, ¶ 13 (2011) (citing Ward v. U.S.
Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011), and Stone 179 F.3d
at 1377)).
ORDER
We ORDER the agency to cancel the appellant’s removal and to
retroactively restore him effective April 18, 2017. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, 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,8
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and 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 fees9
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
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 on11
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) or12
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.14
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. | Lastra_Daniel_SF-0432-18-0143-I-1__Final_Order.pdf | 2024-01-25 | DANIEL LASTRA v. DEPARTMENT OF COMMERCE, MSPB Docket No. SF-0432-18-0143-I-1, January 25, 2024 | SF-0432-18-0143-I-1 | NP |
2,494 | https://www.mspb.gov/decisions/nonprecedential/McClinton_Dale_R_DC-0752-22-0071-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DALE R. MCCLINTON,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DC-0752-22-0071-I-2
DATE: January 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dale R. McClinton , Baltimore, Maryland, pro se.
Amy Hmood , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision in this
appeal. For the reasons set forth below, we DISMISS the appeal as settled.
¶2After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT,” which was signed by the parties on
September 25 and 29, 2023. Petition for Review (PFR) File, Tab 8 at 4-8. The
document provides, among other things, for the dismissal of this appeal. Id. at 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).
¶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). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
¶4Here, we find that the parties have entered into a settlement agreement,
understand its terms, and agree that the agreement will not be entered into the
record for enforcement by the Board. PFR File, Tab 8 at 7. Accordingly, 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.
¶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).
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 courtappointed 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | McClinton_Dale_R_DC-0752-22-0071-I-2__Final_Order.pdf | 2024-01-25 | DALE R. MCCLINTON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-22-0071-I-2, January 25, 2024 | DC-0752-22-0071-I-2 | NP |
2,495 | https://www.mspb.gov/decisions/nonprecedential/Patrie_John_D_PH-4324-18-0222-R-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN D. PATRIE,
Appellant,
v.
U.S. POSTAL SERVICE
Agency,DOCKET NUMBER
PH-4324-18-0222-R-1
DATE: January 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patrick H. Boulay , Esquire, Washington, D.C., for the appellant.
Courtney Wheeler , Esquire, Washington. D.C., for the agency.
Wendy Provoda , Esquire, Windsor, Connecticut, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The Board issued a final decision in this appeal on August 23, 2023. Patrie
v. U.S. Postal Service , MSPB Docket No. PH-4324-18-0222-I-2, Final Order
(Aug. 23, 2023). For the reasons set forth below, we REOPEN the appeal on the
Board’s own motion under 5 U.S.C. § 7701(e)(1)(B) and 5 C.F.R. § 1201.118,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Board’s Final Order in Patrie v. U.S. Postal Service , MSPB Docket
No. PH-4324-18-0222-I-2, Final Order (Aug. 23, 2023), and DISMISS the
underlying appeal as settled.
On August 23, 2023, the Board issued a final decision, which denied the
agency’s petition for review and affirmed the initial decision granting the
appellant’s 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). Patrie v. U.S. Postal Service , MSPB Docket No. PH-
4324-18-0222-I-2, Final Order (Aug. 23, 2023). Thereafter, the parties reached a
settlement agreement and filed a joint motion to reopen the record to enter the
settlement agreement into the record for enforcement purposes. Patrie v. U.S.
Postal Service, MSPB Docket No. PH-4324-18-0222-R-1, Reopening Appeal File
(RAF), Tab 1. The parties attached Exhibit A to this joint motion, which is an
executed settlement agreement bearing the I-2 docket number. Id. at 3-13. The
agreement was signed by the appellant and an attorney from the Office of Special
Counsel on October 19, 2023, and by the agency on October 23, 2023. Id. at 13.
The agreement provides, among other things, that its “execution [by the
appellant] . . . shall serve as [his] full and complete settlement and resolution with
prejudice of the matter of the subject appeal and all related claims.” Id. at 10.
Before 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). We find here that the parties have entered into a settlement
agreement, they understand its terms, and they want the Board to enforce those
terms. RAF, Tab 1 at 12.
In addition, before accepting a settlement agreement into the record for
enforcement purposes, the Board must determine whether the agreement is lawful
on its face and whether the parties freely entered into it. See Delorme2
v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017). We further
find that the agreement is lawful on its face and freely entered into, and we accept
the settlement agreement into the record for enforcement purposes. Accordingly,
we find it appropriate under the circumstances to vacate the Board’s decision,
dated August 23, 2023, and dismiss as settled the underlying appeal with
prejudice to refiling (i.e., the parties normally may not refile this appeal).
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the agreement,
either party may ask the Board to enforce the settlement agreement by promptly
filing a petition for enforcement with the office that issued the initial decision on
this appeal. The petition should contain specific reasons why the petitioning
party believes that the terms of the settlement agreement have not been fully
carried out, and should include the dates and results of any communications
between the parties. 5 C.F.R. § 1201.182(a).
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.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.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Patrie_John_D_PH-4324-18-0222-R-1__Final_Order.pdf | 2024-01-25 | null | PH-4324-18-0222-R-1 | NP |
2,496 | https://www.mspb.gov/decisions/nonprecedential/Chavez_Alma_D_SF-0752-17-0308-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALMA D. CHAVEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-17-0308-I-1
DATE: January 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alma D. Chavez , Clovis, California, pro se.
Coleen L. Welch , Martinez, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal,2 we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant’s previous Board appeal was not a contributing factor in
her removal, and to VACATE the portion of the initial decision finding that the
agency proved by clear and convincing evidence that it would have removed the
appellant in the absence of her previous Board appeal, we AFFIRM the initial
decision.
On review, the appellant submits various documents, including social
media posts, emails, and photographs, apparently intended to impeach the
credibility of a witness. Petition for Review (PFR) File, Tab 8 at 5-15, Tab 9
at 7-8. Evidence offered merely to impeach a witness's credibility is not
generally considered new and material. Bucci v. Department of Education ,
42 M.S.P.R. 47, 55 (1989). Consequently, the newly submitted evidence does not
warrant further review.
The appellant also contends that the administrative judge was biased
against her. PFR File, Tab 8 at 2-3, Tab 9 at 6. In making a claim of bias or
prejudice against an administrative judge, a party must overcome the presumption
of honesty and integrity that accompanies administrative adjudicators . Oliver v.
Department of Transportation , 1 M.S.P.R. 382, 386 (1980). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
2 To the extent the appellant’s reply to the agency’s response to her petition raises new
allegations of error, we do not consider it. 5 C.F.R. § 1201.114(a)(4); see Boston v.
Department of the Army , 122 M.S.P.R. 577, ¶ 5 n.3 (2015).
3
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
(quoting Liteky v. United States , 510 U.S. 540, 555 (1994)).
Here, the appellant has provided no evidence to support her claim of bias
other than her general disagreement with the administrative judge’s findings and
credibility determinations. Mere disagreement with the administrative judge's
findings and credibility determinations does not warrant full review of the record
by the Board. Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 -34 (1980),
review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam); see Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions).
For the reasons discussed below, we modify our analysis of the appellant’s
claim that the agency removed her in retaliation for her previous Board appeal.
Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 13 (2013).
Because that appeal included a claim of retaliation for protected disclosures under
5 U.S.C. § 2302(b)(8), the appellant’s claim falls within the scope of 5 U.S.C.
§ 2302(b)(9)(A)(i), and we consider it under the evidentiary framework of
5 U.S.C. § 1221(e). Elder v. Department of the Air Force , 124 M.S.P.R. 12,
¶¶ 39-40 (2016).
Under that framework, the appellant must first establish by preponderant
evidence3 that she engaged in protected activity that was a contributing factor in
the personnel action at issue. 5 U.S.C. § 1221(e)(1); Elder, 124 M.S.P.R. 12,
¶ 39. If the appellant does so, the burden of persuasion shifts to the agency to
prove by clear and convincing evidence4 that it would have taken the same action
in the absence of the appellant’s protected activity. 5 U.S.C. § 1221(e)(2); Elder,
3 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
124 M.S.P.R. 12, ¶ 39. If the appellant does not establish her prima facie case,
the Board will not consider whether the agency would have met its burden under
the clear and convincing evidence test. Clarke v. Department of Veterans Affairs ,
121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).
Under 5 U.S.C. § 1221(e)(1), one way to establish contributing factor is to
show that the official taking the personnel action knew of the disclosure or
personnel activity and that the personnel action occurred within a period of time
such that a reasonable person could conclude the disclosure or protected activity
was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1). Here,
the deciding official admitted that he had knowledge of the appellant’s previous
Board appeal. Initial Appeal File (IAF), Tab 22 at 45-46. However, more than
3 years transpired between the appellant’s earlier Board appeal, which concluded
in October 2013 and resulted in her December 2013 reinstatement, and her
subsequent removal, which was proposed in December 2016 and effected in
March of the following year. A delay of more than 2 years between a protected
disclosure or activity and the contested personnel action is too remote to satisfy
the knowledge component of the knowledge/timing test. Agoranos v. Department
of Justice, 119 M.S.P.R. 498, ¶ 21 (2013). Moreover, even if the removal were
considered as part of a continuum of related personnel actions stretching back to
the appellant’s July 2016 suspension, id., ¶ 22, the suspension and the privacy
investigation that preceded it also did not occur until more than 2 years had
passed since her protected activity. Thus, contrary to the initial decision, the
appellant has not established the contributing factor element under the
knowledge/timing test.
That said, we note that the knowledge/timing test is not the only way for an
appellant to satisfy the contributing factor standard. Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 14 (2012). If an administrative judge determines that
4 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of a trier of fact a firm belief as to the allegations sought to be established.
5 C.F.R. § 1209.4(e).
5
an appellant has failed to satisfy the knowledge/timing test, she should consider
other evidence, such as (1) evidence pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action; (2) whether the whistleblowing
was personally directed at the proposing or deciding officials; and (3) whether
these individuals had a desire or motive to retaliate against the appellant. Id.
Any weight given to the whistleblowing activity, either alone or in combination
with other factors, can satisfy the contributing factor standard. Id.
However, consideration of the Dorney factors also does not support a
finding of contributing factor. The first factor does not weigh in the appellant’s
favor, given that the agency has supported its charges by a preponderance of the
evidence. Regarding the second factor, the appellant’s claims of whistleblowing
reprisal in her previous Board appeal were not personally directed at the
proposing official or the deciding official, who were not involved in the events at
issue. As to the third factor, we note that the deciding official was formerly the
Director of the Fresno VA Medical Center, where the appellant was employed,
and is presently the Director of the VA Central California Health Care system,
which includes the Fresno facility. IAF, Tab 22 at 44. However, as the deciding
official did not become Director of the Fresno VA Medical Center until
December 2015, id., it is unlikely that he would have had a significant motive or
desire to retaliate against the appellant for her previous Board appeal, which
occurred well before his tenure. Nor is there evidence of any desire or motive to
retaliate on the part of the proposing official.
In sum, we find that the appellant has not met her burden of establishing
that her protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) was a contributing
factor in the agency’s decision to remove her. Because the appellant has not met
her initial burden, we do not reach the question of whether the agency proved by
clear and convincing evidence that it would have removed her in the absence of
her protected activity. Clarke, 121 M.S.P.R. 154, ¶ 19 n.10. Accordingly, we
vacate the portion of the initial decision addressing the clear and convincing
6
evidence test. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 26
(2016). The initial decision is otherwise affirmed.5
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
5 On petition for review, the appellant also argues that the agency failed to prove its
charges, violated her due process rights, and retaliated against her for prior equal
employment opportunity activity. We have considered the appellant’s arguments, but
we agree with the administrative judge’s analysis of these issues as set forth in the
initial decision.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
8
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Chavez_Alma_D_SF-0752-17-0308-I-1__Final_Order.pdf | 2024-01-25 | ALMA D. CHAVEZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-17-0308-I-1, January 25, 2024 | SF-0752-17-0308-I-1 | NP |
2,497 | https://www.mspb.gov/decisions/nonprecedential/Harper_Adam_C_PH-0752-19-0191-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADAM C. HARPER,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
PH-0752-19-0191-I-1
DATE: January 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
N
eil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
William B. Dorsey , Esquire, Charleston, West Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review and the agency has filed a
cross petition for review of the initial decision, which affirmed the appellant’s
separation. For the reasons discussed below, we DENY the petition for review,
GRANT the cross petition for review, VACATE the initial decision, and
DISMISS the appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The agency employed the appellant pursuant to 32 U.S.C. § 709(a) as an
Aircraft Mechanic for the 130th Maintenance Group in Charleston, West Virginia.
Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 26, 34. In the position, the
appellant was required to meet the following conditions of employment: (1) be a
dual status military technician as defined in 10 U.S.C. § 10216(a); (2) be a
member of the National Guard; (3) hold the military grade specified by the
Secretary concerned for that position; and (4) wear the appropriate military
uniform while performing duties as a dual status military technician. 32 U.S.C.
§ 709(b); Dyer v. Department of the Air Force , 971 F.3d 1377, 1383 (Fed. Cir.
2020).
The appellant was a member of the West Virginia Air National Guard
(WVANG). The appellant’s military chain of command submitted a
recommendation to the Air National Guard Selective Retention Review Board
(SRRB) that he be non -retained because (1) he had been a Master Sergeant for a
number of years and failed to meet the military requirement for promotion to the
next higher grade; (2) he was holding up other unit members for promotion;
(3) he failed to maintain Air Force physical fitness standards; (4) his failure to
meet military standards would likely cause him to lose rank; and (5) his failure to
maintain standards had become a poor example to peers and subordinates. IAF,
Tab 7 at 36-37. The SRRB met and did not approve the appellant’s retention in
the WVANG. Id. at 41. The Adjutant General notified the appellant that, as a
consequence of the SRRB’s decision, he would be separated from the WVANG
effective December 31, 2018. Id. at 41. The appellant requested that the
Adjutant General reconsider the decision. Id. at 46. The Adjutant General
considered the appellant’s request and upheld the SRRB’s decision not to retain
him. Id. at 47-48, 51. The WVANG separated the appellant effective
December 31, 2018. Id. at 51, 53. On February 7, 2019, a Human Resources
Officer in the Adjutant General’s office notified the appellant that, as a2
consequence of his separation from the WVANG, he would be separated from his
dual status military technician employment, due to the loss of his military
membership, 30 days from his receipt of the letter. Id. at 43-44. The agency
separated the appellant effective March 8, 2019. Id. at 34.
The appellant filed the instant appeal. IAF, Tab 1. He withdrew his
request for a hearing. IAF, Tab 3 at 3. The agency moved to dismiss the appeal
for lack of jurisdiction, and the appellant filed a response. IAF, Tabs 7-8. The
administrative judge subsequently issued a close of record order, and the parties
made their final submissions. IAF, Tabs 9-11.
On the written record, the administrative judge found that pursuant to the
National Defense Authorization Act for Fiscal Year 2017 (NDAA for 2017), the
appellant was a 5 U.S.C. chapter 75 employee, and thus, the Board had
jurisdiction over his separation. IAF, Tab 12, Initial Decision (ID) at 3-5. He
determined that the appellant was separated based on a charge of failure to meet a
condition of employment—in this case, the maintenance of his military status. ID
at 4. The administrative judge found that he was precluded from reviewing the
merits of the agency’s determination regarding the appellant’s loss of military
membership but not whether the appellant, as a covered employee, was denied
constitutional due process. ID at 4, 6. He found that the agency did not deny the
appellant due process because the deciding official considered the appellant’s
written reply to the proposed removal in reaching his decision. ID at 5-6. The
administrative judge further found that the agency’s procedural error in failing to
afford the appellant an oral reply was harmless because the appellant failed to
prove that the agency would not have separated him if he had provided an oral
reply. ID at 5-6. As a result, he affirmed the separation. ID at 5-6 (citing
32 U.S.C. § 709(f)(1)).
In his petition for review, the appellant reargues his due process claim,
alleging that the deciding official failed to afford him an oral reply and failed to
consider his written reply. Petition for Review (PFR) File, Tab 1 at 4-9. The3
agency has filed a response to the appellant’s petition for review and a cross
petition for review in which it argues, in pertinent part, that the administrative
judge erred in finding jurisdiction over the appeal. PFR File, Tab 3 at 6-14. The
appellant filed a reply to the agency’s response to his petition for review and a
response to the agency’s cross petition for review. PFR File, Tabs 6-7.2
DISCUSSION OF ARGUMENTS ON REVIEW
The Board lacks jurisdiction over this appeal pursuant to 32 U.S.C. § 709 because
it concerns the appellant’s fitness for duty in the reserve components.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
of establishing jurisdiction over his appeal by a preponderance of the evidence.
5 C.F.R. § 1201.56(b)(2)(i)(A).
The sum and substance of the agency’s argument in its cross petition for
review is that the administrative judge erred in not dismissing the appeal for lack
of jurisdiction because the appeal concerned the appellant’s fitness for duty in a
reserve component. PFR File, Tab 3 at 6-14. After the administrative judge
issued his initial decision, the U.S. Court of Appeals for the Federal Circuit
issued its decision in Dyer, 971 F.3d 1377. In light of that decision, we agree
with the agency that the Board lacks jurisdiction over this appeal.
2 On review, both parties resubmitted documentation that was already part of the record
below. Compare PFR File, Tab 1 at 11-35, with IAF, Tab 8 at 8-33; compare PFR File,
Tab 3 at 19-50, with IAF, Tab 7 at 17-44, 47-49; compare PFR File, Tab 4 at 5, 7, with
IAF, Tab 7 at 46, 51. Evidence that is already part of the record is not new evidence
that warrants granting review. Meier v. Department of the Interior , 3 M.S.P.R. 247,
256 (1980); see 5 C.F.R. § 1201.115(d) (identifying new and material evidence as a
basis on which the Board may, in appropriate circumstances, grant review). In any
event, we have considered all of the evidence in the record that relates to the Board’s
jurisdiction, regardless of when it was submitted. See Stoglin v. Department of the Air
Force, 123 M.S.P.R. 163, ¶ 7 (2015) (explaining that the issue of Board jurisdiction is
always before the Board and may be raised at any time), aff’d per curiam, 640 F. App’x
864 (Fed. Cir. 2016).4
The administrative judge correctly found that the NDAA for 2017 provided
dual status technicians with the right to appeal some adverse actions, such as
removals, to the Board. 32 U.S.C. § 709(f)(5); Dyer, 971 F.3d at 1382; see
5 U.S.C. § 7512(1)-(5) (identifying the adverse actions that a Federal employee
may appeal to the Board under chapter 75). However, this right is limited. Dyer,
971 F.3d at 1382. Specifically, as relevant here, actions that “concern[]” a dual
status technician’s “fitness for duty in the reserve components” are appealable
only to the adjutant general of the jurisdiction concerned. 32 U.S.C. § 709(f)(4),
(g)(1).
In Dyer, the court held that under 32 U.S.C. § 709, “termination of
dual-status employment as a result of separation from the National Guard”
necessarily concerns fitness for duty in the reserve components. Dyer, 971 F.3d
at 1382-84 (citing 32 U.S.C. § 709(b), (f)(1)(A), (f)(4), (f)(6)). As a result, it
concluded that the Board does not have jurisdiction over such a termination. Id.
at 1384. Here, the appellant was terminated from his dual status technician
position because of loss of his membership in the WVANG. IAF, Tab 7 at 43-44.
Thus, under the court’s reasoning in Dyer, we find that the Board lacks
jurisdiction over his termination.
The administrative judge erred in finding that the Board has jurisdiction
because the Board may review the appellant’s separation as a failure to maintain a
condition of employment, relying on the U.S. Supreme Court’s decision in
Department of the Navy v. Egan , 484 U.S. 518 (1988). ID at 4. In Egan, the
Court held that the Board has limited authority to review an adverse action under
5 U.S.C. chapter 75 for reasons pertaining to a negative security clearance
determination. Egan, 484 U.S. at 530-31. However, the court in Dyer found that
Egan was “inapposite” to the removal of a dual status technician based on loss of
National Guard membership. Dyer, 971 F.3d at 1383-84. The court reasoned that
Egan did not concern 32 U.S.C. § 709 “at all” and Mr. Dyer’s termination was not
“for cause,” as in Egan, but was “compelled by statute due [to] his failure to meet5
a requirement of employment provided for by statute.” Dyer, 971 F.3d
at 1383-84.
Accordingly, we vacate the initial decision and dismiss the appeal for lack
of jurisdiction. In light of our findings here, we do not address any of the
appellant’s arguments related to due process or the merits of his discharge from
the WVANG.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.10 | Harper_Adam_C_PH-0752-19-0191-I-1_Final_Order.pdf | 2024-01-25 | ADAM C. HARPER v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. PH-0752-19-0191-I-1, January 25, 2024 | PH-0752-19-0191-I-1 | NP |
2,498 | https://www.mspb.gov/decisions/nonprecedential/Yomi_Francis_W_SF-1221-17-0580-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCIS YOMI,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-1221-17-0580-W-1
DATE: January 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Francis Yomi , Santa Fe, New Mexico, pro se.
Matthew Dan Rajnus , Bremerton, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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. Except as MODIFIED to find that
the appellant exhausted his administrative remedies and to apply the correct
evidentiary standard in determining whether the appellant established jurisdiction
over his appeal, we AFFIRM the initial decision.
BACKGROUND
The agency employed the appellant as a GS-6 Physical Science Technician
(PST) from July 7, 2014, until he resigned in lieu of being terminated on
August 28, 2014. Initial Appeal File (IAF), Tab 1 at 121, Tab 6 at 46, 49-50.2
After seeking corrective action from the Office of Special Counsel (OSC), the
appellant filed the instant IRA appeal. IAF, Tab 1. In response to the
administrative judge’s order on jurisdiction, the appellant alleged that, as he
informed OSC, the agency forced him to resign in retaliation for his August 19
and 20, 2014 disclosures regarding the agency’s improper reliance on
management discretion in its hiring decisions and its failure to provide him
reasons why he was not selected for a higher-graded position. IAF, Tab 5 at 2-5,
12, 14, Tab 7 at 3-7. He also alleged that, as he informed OSC, the agency
2 In September 2014, the appellant filed an equal employment opportunity complaint
alleging, among other things, that the agency discriminated against him when it
discharged him and forced him to resign. IAF, Tab 6 at 14, 21. He also filed a separate
Board appeal challenging his alleged involuntary resignation, which the Board
dismissed for lack of jurisdiction. Yomi v. Department of the Navy , MSPB Docket
No. SF-0752-16-0764-I-1, Final Order (Apr. 26, 2023).
3
retaliated against him for filing an equal employment opportunity (EEO)
complaint in September 2014 by not referring his application for GS -8 and GS-9
PST positions to the selecting official. IAF, Tab 5 at 4-6.
In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant “failed to
show that he made a protected disclosure.” IAF, Tab 8, Initial Decision (ID) at 5.
She further found that she was unable to review the appellant’s allegation that the
agency retaliated against him for filing an EEO complaint or other alleged
prohibited personnel practices raised in his OSC complaint. ID at 7-8.
The appellant has filed a petition for review of the initial decision, the
agency has responded, and the appellant has submitted a reply. Petition for
Review (PFR) File, Tabs, 1, 3 -4.
ANALYSIS
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),3
the Board has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes nonfrivolous allegations of the
following: (1) he engaged in whistleblowing activity by making a protected
disclosure under 5 U.S.C. § 2302(b)(8), or engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); 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 his administrative remedy with OSC.
Although the administrative judge appeared to assume that the appellant
exhausted his administrative remedy, she did not make an explicit finding
regarding this jurisdictional requirement. ID. The Board has recently clarified
3 The relevant events in this case 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.
4
the substantive requirements of exhaustion. Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶¶ 10-11. The requirements are met when an
appellant has provided OSC with sufficient basis to pursue an investigation. The
Board’s jurisdiction is limited to those issues that have been previously raised
with OSC. However, an appellant may give a more detailed account of his
whistleblowing activities before the Board than he did to OSC. 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. An
appellant may also establish exhaustion 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. Id.
Here, the record contains, among other correspondence with OSC, the
appellant’s February 28, 2017 response to OSC’s February 16, 2017 preliminary
determination to close the case. IAF, Tab 1 at 80-81, 83-98. Therein, the
appellant specifically raised the alleged disclosures, activities, and personnel
actions at issue in this appeal. Id. at 85, 92-93. By letter dated June 15, 2017,
OSC denied the appellant’s request for reconsideration. Id. at 150-51. Therefore,
we find that he exhausted his administrative remedy with OSC.
The appellant failed to nonfrivolously allege that he made a protected disclosure.
Next, we must consider whether the appellant has nonfrivolously alleged
that he made one or more protected disclosures or engaged in protected activity.
Salerno, 123 M.S.P.R. 230, ¶ 5. A nonfrivolous allegation of a protected
whistleblowing disclosure is an allegation of facts that, if proven, would show
that the appellant disclosed a matter that a reasonable person in his position
would believe evidenced one of the categories of wrongdoing specified in
5 U.S.C. § 2302(b)(8). Id., ¶ 6. The test to determine whether a putative
whistleblower has a reasonable belief in the disclosure is an objective one:
5
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id. The disclosures must be
specific and detailed, not vague allegations of wrongdoing. Id.
Here, as noted above, the appellant alleged that he made several protected
disclosures to agency officials on August 19 and 20, 2014. IAF, Tab 5 at 2-4. In
particular, he alleged that, after his first-level supervisor, a human resources
specialist, and an administrative officer failed to provide him the specific reasons
for his nonselection for a higher-graded position during an August 19, 2014
meeting, he informed them that “the selection of applicants for a job open to all
U.S. citizens should not be based on the discretion of the management, but should
be based on the qualifications and merits of applicants.” Id. at 3-5. He also
alleged that, in an August 20, 2014 email to his third-level supervisor, he
informed her of the following: (1) during the August 19, 2014 meeting, the
administrative officer informed him that he was not selected “because he had not
been selected,” and the human resources specialist told him that his nonselection
“was up to the discretion of management”; (2) pursuant to the merit system
principles, hiring decisions should be based on objective criteria, rather than
management discretion; and (3) he “just [thought] that it should be clearly
explained why an applicant has not been selected from an objective criteria point
of view, rather than a management discretion point of view.” IAF, Tab 1 at 48,
Tab 5 at 3-4, Tab 7 at 3-7. He alleged that these statements to agency officials
constituted disclosures of gross mismanagement and a violation of law, rule, or
regulation, including the merit system principles and the Pendleton Civil Service
Act of 1883 (Pendleton Act).
On review, the appellant argues that the administrative judge erred in
requiring him to prove that his disclosure evidenced a violation of law, rule, or
6
regulation, rather than nonfrivolously alleging that he had a reasonable belief that
that it did. PFR File, Tab 1 at 2-3, Tab 4 at 8, 10. We agree that the
administrative judge appeared to hold, in part, the appellant to a higher pleading
standard than is permissible at the jurisdictional stage by finding that he failed to
“show”—rather than nonfrivolously allege—that his disclosure evidenced a
violation of law, rule, or regulation. ID at 5-7. We therefore modify the initial
decision to apply the correct evidentiary standard. For the reasons that follow,
we find that the appellant failed to nonfrivolously allege that he had a reasonable
belief that his disclosure evidenced a violation of law, rule, or regulation.
As noted above, the appellant alleges that his disclosures evidence a
violation of the Pendleton Act or the merit system principles.4 IAF, Tab 5 at 12,
14, Tab 7 at 4. Resolving any doubt or ambiguity in the appellant’s favor, we
find that his purported disclosures do not constitute a nonfrivolous allegation of a
reasonable belief that the agency violated the Pendleton Act or the merit system
principles. Nothing in the Pendleton Act or the merit system principles requires
—or could reasonably be read to require—an agency to inform an applicant who
is not selected for a position of the specific reasons for his nonselection or to
completely remove management discretion from the hiring process. Likewise,
nothing in these laws could reasonably be read to suggest that an agency official
may not tell an employee that he was not selected “because he was not selected”
or that his nonselection was “up to the discretion of management.” The
appellant’s insistence on review that he subjectively believed that the agency
violated a law, rule, or regulation and that the administrative officer’s statement
was personally insulting do not suggest that he had an objectively reasonable
belief that the matters disclosed evidenced a violation of the Pendleton Act, the
4 An appellant is not required to identify the particular statutory or regulatory provision
that the agency allegedly violated when his statements and circumstances of those
statements clearly implicate an identifiable law, rule, or regulation. Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 17 (2011). We find that the
appellant’s alleged disclosures do not clearly implicate an identifiable law, rule, or
regulation.
7
merit system principles, or any other law, rule, or regulation. PFR File, Tab 1
at 2-8. Therefore, we find that the appellant has failed to nonfrivolously allege
that a disinterested observer with knowledge of the essential facts could
reasonably conclude that his disclosures evidenced a violation of law, rule, or
regulation.
As noted above, the administrative judge also found that the appellant
failed to show that his disclosure evidenced an abuse of authority or gross
mismanagement. ID at 6-7. The appellant does not challenge these findings on
review, PFR File, Tabs 1, 4, and we discern no basis to conclude that he has
nonfrivolously alleged that he disclosed an abuse of authority or gross
mismanagement, see Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 10
n.3 (2015) (defining abuse of authority as an arbitrary or capricious exercise of
power by a Federal official that has adversely affected the rights of any person or
has resulted in personal gain or advantage to himself or to preferred other
persons); Francis v. Department of the Air Force , 120 M.S.P.R. 138, ¶ 12 (2013)
(defining gross mismanagement as a management action or inaction that creates a
substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission).
The appellant apparently believes that management discretion should not
play any role in hiring decisions and that the agency officials acted improperly
when they told him it did and when they failed to provide him the specific
reasons for his nonselection. General philosophical or policy disagreements with
agency decisions or actions, however, are not protected unless they separately
constitute a protected disclosure of one of the categories of wrongdoing listed in
section 2302(b)(8)(A). Webb, 122 M.S.P.R. 248, ¶ 8. The appellant’s mere
disagreement with the agency’s hiring practices and handling of his request for
reasons why he was not selected, therefore, do not amount to a nonfrivolous
allegation of a protected disclosure. See Bradley v. Department of Homeland
Security, 123 M.S.P.R. 547, ¶ 11 (2016) (finding that the employee’s disclosure
8
regarding an alleged difference of opinion concerning a policy was not a
nonfrivolous allegation of a protected disclosure).
The appellant failed to nonfrivolously allege that he engaged in protected activity
when he filed an EEO complaint in September 2014.
As noted above, the administrative judge found that she was unable to
review the appellant’s allegation that he engaged in protected activity under
5 U.S.C. § 2302(b)(9) when he filed an EEO complaint in September 2014. ID
at 7-8. Under the WPEA, however, an appellant may establish Board jurisdiction
over an IRA appeal by nonfrivolously alleging that he engaged in protected
activity described under 5 U.S.C. § 2302(b)(9)(A)(i), which includes filing an
EEO complaint that seeks to remedy whistleblower reprisal. Bishop v.
Department of Agriculture , 2022 MSPB 28, ¶ 15; Salerno, 123 M.S.P.R. 230, ¶ 5.
Here, the appellant alleged that the agency retaliated against him for filing
a September 2014 EEO complaint, but he has not alleged that his EEO complaint
sought to remedy whistleblower reprisal. IAF, Tabs 1, 5, 7; PFR File, Tabs 1, 4.
In fact, he stated below that his “EEO complaint is about discrimination, which is
totally different from the reprisal for whistleblowing complaint or IRA appeal.”
IAF, Tab 7 at 8. Therefore, we find that the appellant has not made a
nonfrivolous allegation that his EEO complaint constitutes protected activity
under section 2302(b)(9)(A)(i). See Bishop, 2022 MSPB 28, ¶ 15. Because the
appellant failed to nonfrivolously allege that he made a protected disclosure or
engaged in any protected activity, we find that the Board lacks jurisdiction over
this IRA appeal.5
5 Insofar as the appellant raised other alleged prohibited personnel practices below, the
Board lacks jurisdiction to consider them absent an otherwise appealable action. See
Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980) (explaining that a prohibited
personnel practice under 5 U.S.C. § 2302(b) is not an independent source of Board
jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
9
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
11
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
12
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | Yomi_Francis_W_SF-1221-17-0580-W-1_Final_Order.pdf | 2024-01-24 | FRANCIS YOMI v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-1221-17-0580-W-1, January 24, 2024 | SF-1221-17-0580-W-1 | NP |
2,499 | https://www.mspb.gov/decisions/nonprecedential/Taskin_Erol_O_SF-0752-19-0176-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EROL O. TASKIN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-19-0176-I-1
DATE: January 24, 2024
THIS ORDER IS NONPRECEDENTIAL1
Erol O. Taskin , Orlando, Florida, pro se.
Vanessa Lichtenberger , San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his 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
Effective September 1, 2017, the appellant resigned from a Medical
Technician position with the agency’s Veterans Health Administration in Palo
Alto, California. Initial Appeal File (IAF), Tab 6 at 178-80.
The appellant filed the instant appeal with the Board, and he did not
request a hearing. IAF, Tab 1 at 1-6. He checked the boxes on the initial appeal
form indicating that he was appealing the following actions: failure to
restore/reemploy/reinstate or improper restoration/reemployment/reinstatement;
involuntary resignation; and involuntary retirement. Id. at 2. The appellant
alleged that he began working a modified-duty schedule due to an on-the-job
injury from March 31, 2016, until he became fully disabled in a “spora[d]ic
period while attempting to return to full duty status,” but his requests for
“alternative work opportunities” after July 4, 2017, were “routinely ignored.” Id.
In an Acknowledgment Order, the administrative judge informed the
appellant that the Board might not have jurisdiction over his appeal, apprised him
of his jurisdictional burden regarding an involuntary resignation or retirement
claim, and ordered him to file evidence and argument amounting to a
nonfrivolous allegation that his resignation or retirement is a matter within the
Board’s jurisdiction. IAF, Tab 2 at 2-4. In response, the appellant alleged,
among other things, that he was forced to resign based on the following
circumstances: in the months prior to his resignation, the agency had refused to
provide him with light or limited duty or a new assignment when he had
submitted evidence of his return-to-work capabilities; based on information from
the Office of Workers’ Compensation Programs (OWCP) and the Office of
Personnel Management (OPM), he believed he had to take imminent action to
preserve his Federal employee health benefits as a result of accruing multiple
weeks of leave-without-pay status; and the agency would not return him to work
without additional medical information that he believed was unnecessary and2
burdensome to provide. IAF, Tab 5 at 5-6. He further claimed that the agency
discriminated against him by failing to accommodate his disability. Id. at 5.
In addition, the appellant submitted a copy of an email exchange indicating
that he made a written request to return to work on Sunday, September 3, 2017.
Id. at 14-15. A Laboratory Manager told him that he could return to work on
Tuesday, September 5, 2017, and asked him for updated medical documentation.
Id. The appellant responded that his request to return on September 3 was not
alterable and he would not provide updated medical documentation. Id. at 14.
The Laboratory Manager replied that he could not return to work without updated
medical documentation. Id.
The administrative judge issued a jurisdictional order regarding a potential
claim of involuntary disability retirement. IAF, Tab 7. In response, the appellant
clarified that he has not applied for disability retirement. IAF, Tab 8 at 4. The
agency requested the Board to dismiss the appeal for lack of jurisdiction. IAF,
Tab 6 at 11, Tab 9 at 4-5.
Based on the written record, the administrative judge issued an initial
decision granting the agency’s motion to dismiss the appeal for lack of
jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1, 10-11. Specifically, she
found that the appellant failed to make nonfrivolous allegations of jurisdiction
regarding his constructive removal claim. ID at 6, 9-11.
The appellant has filed a petition for review challenging the administrative
judge’s jurisdictional findings. Petition for Review (PFR) File, Tab 1 at 4-7. The
agency has filed a response, PFR File, Tab 3, to which the appellant has replied,
PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
We remand this appeal to provide the appellant with proper jurisdictional notice
and an opportunity to establish the Board’s jurisdiction over a restoration claim.
The Federal Employees’ Compensation Act and OPM’s implementing
regulations at 5 C.F.R. part 353 provide, among other things, that Federal3
employees who suffer compensable injuries enjoy certain rights to be restored to
their previous or comparable positions. Hamilton v. U.S. Postal Service ,
123 M.S.P.R. 404, ¶ 9 (2016 ); see 5 U.S.C. § 8151(b).2 Under OPM’s
regulations, such employees have different substantive rights based on whether
they have fully recovered, partially recovered, or are physically disqualified from
their former or equivalent positions. Hamilton, 123 M.S.P.R. 404, ¶ 9 ; 5 C.F.R.
§ 353.301. Pursuant to 5 C.F.R. § 353.304, the Board has jurisdiction over
certain restoration claims. To establish the Board’s jurisdiction over a restoration
claim, an appellant must make nonfrivolous allegations3 regarding the substantive
jurisdictional elements applicable to the particular restoration claim. 5 C.F.R.
§ 1201.57(b). Once jurisdiction has been established, an appellant must prove the
merits of his restoration claim by a preponderance of the evidence.4 5 C.F.R.
§ 1201.57(c)(4).
Here, we find that the appellant raised a restoration claim in his initial
appeal because he checked the box indicating as such and alleged that, after
working a modified-duty schedule due to an on-the-job injury and being
“sporadically” disabled, he unsuccessfully attempted to return to full-duty status.
IAF, Tab 1 at 2. We further find that, based on his subsequent pleadings and
supporting documentation, he has continued to pursue a restoration claim
throughout this appeal and on review. PFR File, Tab 1 at 6, Tab 4 at 4; IAF,
Tab 5 at 5-6, 14-15, Tab 8 at 4-5, 12, 14-15; see Hosozawa v. Department of
Veterans Affairs , 113 M.S.P.R. 110, ¶ 7 (2010) (observing that pro se filings are
to be construed liberally). In particular, the appellant submitted medical
2 A compensable injury is defined as one that is accepted by OWCP as job-related and
for which medical or monetary benefits are payable from the Employees’ Compensation
Fund. Hamilton, 123 M.S.P.R. 404, ¶ 14.
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
documentation reflecting that he had a temporary total disability from January 23
through July 4, 2017, and he could return to light duty with certain restrictions on
July 5, 2017. IAF, Tab 8 at 12, 14-15. In addition, as described above, he
provided a copy of an email exchange showing that he made a written request to
return to work on September 3, 2017, but the agency ultimately responded that he
could not return to work unless he provided updated medical documentation.
IAF, Tab 5 at 14-15.
However, the administrative judge did not address a potential restoration
claim, and the appellant did not receive any notice of how to establish Board
jurisdiction over a restoration claim, either through the administrative judge’s
orders or initial decision or the agency’s pleadings. ID at 1-11; IAF, Tab 2
at 2-4, Tab 6 at 7-8, Tabs 7, 9; see Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an appellant must receive
explicit information on what is required to establish an appealable jurisdictional
issue). Because the nature of the appellant’s restoration claim is unclear based on
the current record and he did not have an opportunity to address the applicable
jurisdictional elements, we must remand the appeal for further adjudication. See
Brehmer v. U.S. Postal Service , 106 M.S.P.R. 463, ¶¶ 10, 15 (2007) (remanding
the appeal to, among other things, provide the appellant with proper jurisdictional
notice and an opportunity to establish Board jurisdiction over his restoration
claim). On remand, the administrative judge shall afford the appellant the
opportunity to establish Board jurisdiction over a restoration claim after
providing him with proper jurisdictional notice. See id.
On remand, the administrative judge shall make a new jurisdictional
determination on the appellant’s constructive removal claim after allowing further
development of the record.
An employee may establish the Board’s jurisdiction over an alleged
involuntary resignation as a constructive removal by proving, among other things,
that he lacked a meaningful choice in the matter, and it was the agency’s5
wrongful actions that deprived him of that choice. Bean v. U.S. Postal Service ,
120 M.S.P.R. 397, ¶¶ 7-8, 11 (2013). To overcome the presumption that a
resignation is voluntary, an employee may show, for instance, that his resignation
was the product of agency misinformation, deception, or coercion. Vitale v.
Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 19 (2007). To establish
involuntariness on the basis of coercion, an employee must show that the agency
effectively imposed the terms of his resignation, he had no realistic alternative
but to resign, and his resignation was the result of improper agency acts. Id. The
touchstone of a voluntariness analysis is whether, considering the totality of the
circumstances, factors operated on the employee’s decision-making process that
deprived him of freedom of choice. Id.
Here, the administrative judge dismissed the appeal for lack of jurisdiction,
finding that the appellant failed to make nonfrivolous allegations of jurisdiction
regarding his constructive removal claim. ID at 1, 6, 9-11. Specifically, she
found that the appellant’s statement that his requests for “alternative work
opportunities” were ignored was too generalized and conclusory to constitute a
nonfrivolous allegation. ID at 9. She further found that he was not compelled to
resign because the agency allowed him to return to work on September 5, 2017,
and the agency’s request for updated medical documentation was reasonable. ID
at 9-10. In addition, she found that he resigned based on his understanding of
healthcare costs and benefits—not improper actions by his employing agency. ID
at 10.
We find that the administrative judge failed to consider the appellant’s
argument that he resigned based, in part, on the agency’s violation of his
restoration rights. IAF, Tab 5 at 6. In particular, the administrative judge found
that the agency allowed the appellant to return to work on September 5, 2017, and
the agency did not act improperly in denying his request to return on
September 3, 2017. ID at 9-10. However, there is contrary record evidence
indicating that the agency ultimately told him that he could not return to work in6
September 2017 without updated medication documentation. IAF, Tab 5
at 14-15. Further, the administrative judge did not acknowledge the appellant’s
allegations of disability discrimination based on a failure to accommodate. Id.
at 5; see Vitale, 107 M.S.P.R. 501, ¶ 20 (explaining that the Board addresses
allegations of discrimination in connection with an alleged involuntary
resignation only insofar as they relate to the issue of voluntariness). Because we
find that the administrative judge failed to consider the totality of the
circumstances in determining whether the Board has jurisdiction over the
appellant’s constructive removal claim, we vacate the initial decision and remand
the appeal for a new jurisdictional determination on his constructive removal
claim. See Brehmer, 106 M.S.P.R. 463, ¶¶ 5, 14-15 (remanding the appeal for the
administrative judge to conduct a new jurisdictional analysis of the appellant’s
constructive removal claim by, in part, considering the pertinence of his related
restoration claim).
Moreover, the appellant clearly indicated on the initial appeal form that he
did not want a hearing, IAF, Tab 1 at 1, and he has not requested a hearing on
review, PFR File, Tab 1. In addition, he did not request a hearing within the time
period specified in the Acknowledgment Order. IAF, Tab 2 at 1-2. Therefore, we
find that the appellant made an informed decision to waive his right to a hearing
by clear, unequivocal, and decisive action. See Axsom v. Department of Veterans
Affairs, 110 M.S.P.R. 605, ¶ 10 (2009). Because the appellant waived his right to
a hearing, the relevant inquiry on remand is whether he has proven Board
jurisdiction over his constructive removal claim by a preponderance of the
evidence based on the written record. Id. Accordingly, on remand, the
administrative judge shall allow the parties a full and fair opportunity to develop
the record on this issue before making a new jurisdictional determination.5 See
5 Because we find that this appeal must be remanded for further development of the
record for the foregoing reasons, we make no finding regarding the appellant’s
allegedly new and material evidence that he has included with his petition for review.
PFR File, Tab 1 at 4, 9-11. To the extent the appellant believes that any of the7
5 C.F.R. § 1201.59(b) (providing that, if the appellant waives the right to a
hearing, the record will close on the date the administrative judge sets as the final
date for the receipt or filing of submissions of the parties); see also Benson v.
Office of Personnel Management , 83 M.S.P.R. 549, ¶¶ 4-5 (1999) (finding that
the administrative judge erred by failing to set a close-of-record date).
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
documentation that he has submitted on review is relevant to whether the Board has
jurisdiction over his restoration and/or constructive removal claims, he may resubmit
such documentation on remand.8 | Taskin_Erol_O_SF-0752-19-0176-I-1_Remand_Order.pdf | 2024-01-24 | EROL O. TASKIN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-19-0176-I-1, January 24, 2024 | SF-0752-19-0176-I-1 | NP |
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