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2,700 | https://www.mspb.gov/decisions/nonprecedential/Barnes_Ronald_AT-0752-19-0336-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD BARNES,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-19-0336-I-2
DATE: November 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun C. Southworth , Atlanta, Georgia, for the appellant.
Jonathan Lee Simpson , Robins Air Force Base, Georgia, 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 his alleged involuntary retirement appeal for lack of jurisdiction. On
petition for review, the appellant disputes the administrative judge’s jurisdictional
finding and argues that he made several adjudicatory errors during the hearing.
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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113.
2 The appellant argues on review that the administrative judge committed adjudicatory
error during the hearing. Petition for Review (PFR) File, Tab 1 at 17-20. First, the
appellant, who was represented by counsel, contends that the administrative judge
refused to allow him to provide certain testimony. The administrative judge did caution
the appellant when he appeared to be addressing a claim that he had not preserved for
adjudication and about which he had not questioned three agency witnesses who had
already testified and been excused. The administrative judge offered the appellant an
opportunity to reopen the record, but he declined. Hearing Compact Disc (HCD).
The appellant also argues that the administrative judge prevented a full and fair hearing
by interrupting his interrogation of a key witness. The administrative judge did urge
the appellant to elicit testimony that was not repetitive of other testimony but the
appellant did not attempt any further questioning of the witness. HCD. The Board
ordinarily will not reverse an administrative judge’s rulings made during his regulating
a hearing, absent an abuse of discretion. Ryan v. Department of the Air Force ,
117 M.S.P.R. 362, ¶ 5 (2012). Based on our careful review of the record, we find that
the appellant has made no showing that the administrative judge abused his discretion in
any rulings he made during the hearing in this case.
3 Three months after the record closed on review, the appellant filed an additional
pleading. The Clerk of the Board rejected it, advising him that, in order for the Board
to consider such a pleading, he must file a motion to request leave to submit it,
describing the nature of and need for it and showing that the evidence was not readily
available before the record closed. 5 C.F.R. § 1201.114(a)(5), (k), PFR File, Tab 5.
The appellant filed his motion and the Board acknowledged its receipt. PFR File,
Tabs 6-7. In the motion, the appellant seeks to submit his medical records from2
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
April and May 2016 and a March 2017 letter from his physician to the Office of
Personnel Management, and he states that this evidence was previously unavailable.
PFR File, Tab 6. However, the information contained in these documents was not
unavailable when the record closed on review. Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989). The appellant also seeks to submit a
statement attesting to the actions of the agency regarding the COVID-19 crisis. PFR
File, Tab 7. The appellant has not proffered any need for this evidence and, given that
the crisis post-dated the close of the record, no such need is apparent. Therefore, we
DENY the appellant’s motion.
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 | Barnes_Ronald_AT-0752-19-0336-I-2_Final_Order.pdf | 2023-11-13 | RONALD BARNES v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-19-0336-I-2, November 13, 2023 | AT-0752-19-0336-I-2 | NP |
2,701 | https://www.mspb.gov/decisions/nonprecedential/Easterday_Alice_PH-0752-22-0167_I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALICE EASTERDAY,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
PH-0752-22-0167-I-1
DATE: November 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alice Easterday , Mount Laurel, New Jersey, pro se.
John W. Montgomery , Esquire, Alexandria, Virginia, 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 her involuntary retirement appeal for lack of jurisdiction. On petition
for review, the appellant argues primarily that the administrative judge erred in
finding that she failed to prove retaliation for her equal employment opportunity
activity. 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).2
2 In her reply to the agency’s response to the petition for review, the appellant argues
that the administrative judge mischaracterized her email to the union by finding that she
suggested the bargaining unit employee’s supervisor might be discriminating against the
employee. Petition for Review (PFR) File, Tab 4 at 8. Because this argument raises a
claim of error not raised in her petition for review or responsive to the agency’s
response, we decline to consider it. Lin v. Department of the Air Force , 2023 MSPB 2,
¶ 8 n.4 (stating that, because a reply is limited to the issues raised by another party in
the response to the petition for review and may not raise new allegations of error, the
Board will not consider arguments first raised in a reply); 5 C.F.R. § 1201.114(a)(4). In
any event, the text of the email to the union is consistent with the administrative judge’s
finding, as is the appellant’s email to her supervisor the following day in which she
confirmed her concern that there may have been “possible disparate treatment” of the
employee by his supervisor. Initial Appeal File, Tab 5 at 22-25. The appellant also
submits new evidence with her reply, namely two attachments to emails which she
claims evidence retaliation. PFR File, Tab 4 at 7-8, 12-13, 15 -16. Because she fails to
show that this evidence was unavailable before the record closed below despite due
diligence, we decline to consider it. See Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 213-14 (1980). Nevertheless, her assertion that the documents evidence retaliation
is speculative and fails to show that her retirement was involuntary.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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Easterday_Alice_PH-0752-22-0167_I-1_Final_Order.pdf | 2023-11-13 | ALICE EASTERDAY v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. PH-0752-22-0167-I-1, November 13, 2023 | PH-0752-22-0167-I-1 | NP |
2,702 | https://www.mspb.gov/decisions/nonprecedential/Marshall_Mark_C_SF-0432-21-0203-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK C. MARSHALL,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
SF-0432-21-0203-I-1
DATE: November 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mark C. Marshall , Sacramento, California, pro se.
Madeha Chaudry Dastgir , Esquire, Chicago, Illinois, 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
sustained his removal. On petition for review, the appellant argues that the initial
decision “does not rely on the facts supplied but on innuendo and unfounded
assertions.” 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Marshall_Mark_C_SF-0432-21-0203-I-1_Final_Order.pdf | 2023-11-13 | MARK C. MARSHALL v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. SF-0432-21-0203-I-1, November 13, 2023 | SF-0432-21-0203-I-1 | NP |
2,703 | https://www.mspb.gov/decisions/nonprecedential/Swain_Houston_E_SF-0845-21-0484-B-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOUSTON E. SWAIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-21-0484-B-1
DATE: November 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Houston E. Swain , Acton, California, pro se.
Carla Robinson , 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
dismissed his Federal Employees’ Retirement System annuity overpayment appeal
for lack of jurisdiction. On petition for review, the appellant reasserts that the
Board retains jurisdiction because the Office of Personnel Management (OPM)
has not restored him to the status quo ante. Remand Petition for Review (RPFR)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
File, Tab 1 at 5. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2On review, the appellant does not dispute OPM’s assertion that on
October 20, 2021, it refunded the appellant the $1,043.72 that it withheld from his
annuity payments in August and September 2021 to recoup his alleged $18,787.00
overpayment. RPFR, Tab 1; Remand File (RF), Tab 7 at 8-9, 49. Instead, he
explains on review, as he did below, that his allegation that OPM withheld
$5,827.00 was a mistake. RPFR, Tab 1 at 6; RF, Tab 6 at 3-6. Accordingly, we
find that OPM has completely rescinded its reconsideration decision and restored
the appellant to the status quo ante, thus divesting the Board of jurisdiction over
the instant appeal.
¶3The appellant also argues that the Board has jurisdiction because “OPM’s
delays and errors significantly violated [his] legal rights for the past 12 years.”
RPFR File, Tab 1 at 10. Specifically, he asserts that he has experienced multiple
delays and errors with OPM’s handling of his disability retirement and believes
OPM will further delay issuing a final determination. Id. at 4, 10-11.2
¶4We have considered the appellant’s arguments; however, the Board lacks
the authority to order OPM to process a request for reconsideration within a
certain period of time. See McNeese v. Office of Personnel Management ,
61 M.S.P.R. 70, 74-75, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). Further, the
Board’s jurisdiction is limited to those matters over which it has been given
jurisdiction by statute or regulation, and the Board is without authority to broaden
or narrow its appellate jurisdiction through the exercise of inherent power. Id.
at 73. In general, the Board has jurisdiction over OPM determinations affecting
an appellant’s rights or interests under the retirement system only after OPM has
issued a final decision; that is, a reconsideration decision. Id. at 73-74. The
Board has recognized limited exceptions to this general rule when OPM has, in
effect, refused to issue a reconsideration decision. Id. at 74; see, e.g., Okello v.
Office of Personnel Management , 120 M.S.P.R. 498, ¶ 15 (2014) (finding that
OPM’s failure to act for 6 years constituted an appealable administrative action as
the appellant diligently sought a final decision during that time period to no
avail); Garcia v. Office of Personnel Management , 31 M.S.P.R. 160, 161 (1986)
(stating that the Board may assert jurisdiction over a retirement appeal in the
absence of a reconsideration decision when OPM improperly fails to respond to
the appellant’s repeated requests for a decision on his retirement application).
¶5Under the present circumstances, we find that such an exception does not
apply. See McNeese, 61 M.S.P.R. at 71-74 (finding a 16-month delay by OPM in
issuing a reconsideration decision insufficient to confer Board jurisdiction).
However, after OPM issues a new reconsideration decision, the appellant may file
a new appeal with the appropriate Board regional office if he disagrees with that
decision. Any future appeal must be filed within the time limits set forth in the
Board’s regulations. See 5 C.F.R. § 1201.22(b). Alternatively, he may refile the
appeal if he believes that OPM refuses to issue such a decision.
¶6Accordingly, we affirm the initial decision, dismissing the appeal for lack
of jurisdiction.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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Swain_Houston_E_SF-0845-21-0484-B-1_Final_Order.pdf | 2023-11-13 | HOUSTON E. SWAIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-21-0484-B-1, November 13, 2023 | SF-0845-21-0484-B-1 | NP |
2,704 | https://www.mspb.gov/decisions/nonprecedential/White_Sheila_M_PH-0752-18-0090-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHEILA M. WHITE,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-0752-18-0090-I-1
DATE: November 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sheila M. White , Windsor Mill, Maryland, pro se.
Jessica Craig , Esquire, Baltimore, Maryland, 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 her removal appeal as untimely filed without good cause shown for the
delay. On petition for review, the appellant argues that the administrative judge
erred in finding that she failed to establish good cause for the delay under the
circumstances. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 We have considered the appellant’s alleged new evidence on review concerning her
medical conditions and conclude that it provides no basis to disturb the administrative
judge’s finding that she failed to establish good cause for her filing delay. See Lacy v.
Department of the Navy , 78 M.S.P.R. 434, 437 (1998).
3 The appellant filed a motion for leave to file additional evidence, but she did not
describe the nature of or the need for such pleading as required by 5 C.F.R.
§ 1201.114(a)(5). Accordingly, we DENY the motion.
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.2
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | White_Sheila_M_PH-0752-18-0090-I-1_Final_Order.pdf | 2023-11-13 | SHEILA M. WHITE v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-0752-18-0090-I-1, November 13, 2023 | PH-0752-18-0090-I-1 | NP |
2,705 | https://www.mspb.gov/decisions/nonprecedential/Powers_Odeiu_AT-0752-21-0418-I-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ODEIU POWERS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-21-0418-I-3
DATE: November 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Odeiu Powers , Atlanta, Georgia, pro se.
Daniel Burkhart , 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
dismissed her appeal concerning her probationary termination as untimely or, in
the alternative, for lack of jurisdiction based on her election to file a complaint
with the Office of Special Counsel (OSC). Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2On review, the appellant makes several arguments regarding the timeliness
of her initial appeal, which was filed 1,963 days after the deadline. She argues
that the agency misled her about her status as a probationary employee and that it
relied on incorrect regulations in requiring her to serve a probationary period.
Powers v. Department of Homeland Security , MSPB Docket No. AT-0752-21-
0418-I-3, Petition for Review (PFR) File, Tabs 1, 3. However, even if we found
that the appellant established good cause for her untimely filing, which we do not,
the appellant has not challenged, and we find no error in, the administrative
judge’s finding that the Board lacks jurisdiction over this appeal because the
appellant made a knowing election to file a complaint with OSC and a subsequent
individual right of action appeal with the Board. Powers v. Department of
Homeland Security , MSPB Docket No. AT-0752-21-0418-I-3, Appeal File,
Tab 13, Initial Decision at 6-8 (citing 5 U.S.C. § 7121(g)(3) and 5 C.F.R.
§ 1209.2(d)). We therefore affirm the dismissal of this appeal for lack of
jurisdiction based on the appellant’s binding election of remedy, and we decline
to reach her arguments on review regarding timeliness. Having found that the
Board lacks jurisdiction to hear the appellant’s challenge to her probationary2
termination, we also lack jurisdiction over her affirmative defenses of harmful
procedural error and racial discrimination. PFR File, Tabs 1, 3; see Wren v.
Department of the Army , 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73
(D.C. Cir. 1982) (stating that the Board does not have jurisdiction to hear
affirmative defenses absent an otherwise appealable action).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Powers_Odeiu_AT-0752-21-0418-I-3_Final_Order.pdf | 2023-11-09 | ODEIU POWERS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-21-0418-I-3, November 9, 2023 | AT-0752-21-0418-I-3 | NP |
2,706 | https://www.mspb.gov/decisions/nonprecedential/Buford_Juneena_CH-0752-22-0249-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUNEENA LAVAR BUFORD,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CH-0752-22-0249-I-1
DATE: November 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Juneena Lavar Buford , Chicago, Illinois, pro se.
Ronald W. Makawa , Esquire, Baltimore, Maryland, 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 his removal appeal as untimely without good cause shown for the delay
in filing. On petition for review, the appellant requests a decision on the legality
of his termination. He argues that good cause exists for his untimely filing
because he was unaware of the filing process and unable to obtain union
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
representation. 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 | Buford_Juneena_CH-0752-22-0249-I-1_Final_Order.pdf | 2023-11-09 | JUNEENA LAVAR BUFORD v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CH-0752-22-0249-I-1, November 9, 2023 | CH-0752-22-0249-I-1 | NP |
2,707 | https://www.mspb.gov/decisions/nonprecedential/Petoskey_Timothy_SF-1221-22-0225-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY PETOSKEY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-22-0225-W-1
DATE: November 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Morgan Smith , Esquire, and Michael Sheeter , Esquire, Dallas, Texas, for
the appellant.
Stephen Funderburk , Esquire, Seattle, Washington, 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
denied corrective action in his individual right of action appeal. On petition for
review, the appellant argues, among other things, that the administrative judge
erred in finding that his disclosures were not protected and that he failed to
establish his protected activity was a contributing factor in the agency’s decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
to take personnel actions against him. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review.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
2 On review, the appellant submits a copy of a letter from the Federal Labor Relations
Authority (FLRA) dismissing as untimely his claim that the agency violated the Federal
Service Labor-Management Relations Statute with regard to the personnel actions at
issue in this appeal. Petition for Review File, Tab 1 at 23-36. Generally, the Board will
not consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record was closed despite the party’s due
diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). In addition,
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
appellant’s letter from the FLRA was issued before the close of the record below, and
he has not explained why he was not able to submit the letter then. See August 31,
2022 Hearing Transcript at 78. In addition, the appellant has not shown that this letter
is of sufficient weight to warrant an outcome different from that of the initial decision.
Accordingly, we have not considered it.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Petoskey_Timothy_SF-1221-22-0225-W-1_Final_Order.pdf | 2023-11-08 | TIMOTHY PETOSKEY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-22-0225-W-1, November 8, 2023 | SF-1221-22-0225-W-1 | NP |
2,708 | https://www.mspb.gov/decisions/nonprecedential/Echevarria_Josue_AT-0752-21-0244-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSUE L. ECHEVARRIA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-21-0244-I-1
DATE: November 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
McRae Cleaveland , Esquire, and Michael Sheeter , Esquire, Dallas, Texas,
for the appellant.
Diana Espinosa , Esquire, Guaynabo, Puerto Rico, 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 appellant’s removal. For the reasons set forth below, the appellant’s
petition for review is DISMISSED as untimely filed without good cause shown.
5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant filed the instant appeal challenging his removal. Initial
Appeal File (IAF), Tab 1. On August 17, 2021, the administrative judge issued
an initial decision that affirmed the appellant’s removal. IAF, Tab 30, Initial
Decision (ID). She found that the agency proved its charges, that the appellant
failed to prove his affirmative defense of a due process violation, and that the
penalty of removal was reasonable and promoted the efficiency of the service. ID
at 5-22. The initial decision informed the appellant how to file a petition for
review and stated that it would become final on September 21, 2021, unless
a petition for review was filed by that date. ID at 23.
¶3The appellant, through his designated representative, filed a petition for
review on September 28, 2021. Petition for Review (PFR) File, Tab 1; IAF,
Tab 11. He does not dispute that his petition for review is 7 days late, but he
claims that he believed he had timely filed it and did not realize that it had not
been electronically filed through the Board’s e-Appeal system due to “some
technical issues.” PFR File, Tab 1 at 4. The agency filed a response, requesting
that the petition for review be dismissed as untimely filed without good cause
shown. PFR File, Tab 3 at 4-7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision, or if the party filing the petition shows that the
initial decision was received more than 5 days after it was issued, within 30 days
after the party received the initial decision. Palermo v. Department of the Navy ,
120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The Board will waive the
time limit for filing a petition for review only upon a showing of good cause for
the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R. § 1201.114(g). The
party who submits an untimely petition for review has the burden of establishing
good cause for the untimely filing by showing that he exercised due diligence or2
ordinary prudence under the particular circumstances of the case. Palermo,
120 M.S.P.R. 694, ¶ 4. To determine whether a party has shown good cause, the
Board will consider the length of the delay, the reasonableness of his excuse and
the party’s showing of due diligence, whether he is proceeding pro se, and
whether he has presented evidence of the existence of circumstances beyond his
control that affected his ability to comply with the time limits or of unavoidable
casualty or misfortune which similarly shows a causal relationship to his inability
to timely file his petition. Id.; see Moorman v. Department of the Army ,
68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶5As an e-filer, the appellant is deemed to have received the initial decision
on the date of electronic issuance, August 17, 2021. IAF, Tab 1 at 2, Tab 31 at 1;
see 5 C.F.R. § 1201.14(m)(2). The appellant filed his petition for review through
the Board’s e-Appeal system on September 28, 2021, 7 days past the
September 21, 2021 deadline set forth in the initial decision. ID at 23; PFR File,
Tab 1. Because the filing appeared untimely, the Board’s e-Appeal system
automatically generated questions concerning timeliness, to which the appellant
responded that he believed he had timely filed it and did not realize his petition
was untimely due to unspecified technical difficulties. PFR File, Tab 1 at 4.
¶6The Office of the Clerk of the Board issued an acknowledgment letter,
instructing the appellant that an untimely filed petition for review must be
accompanied by a motion to either accept the filing as timely, and/or waive the
time limit for good cause. PFR File, Tab 2 at 1 (citing 5 C.F.R. § 1201.114(g)).
The letter further instructed the appellant that if he wished to file the
aforementioned motion, he must include a statement signed under penalty of
perjury or an affidavit showing that the petition was either timely filed or good
cause existed for the untimeliness. Id. at 1-2. It also included a form for the
motion, sworn statement, and affidavit and provided a deadline of October 15,
2021. Id. at 2, 7-8. Despite the instructions contained in the acknowledgment3
letter, the appellant did not submit a sworn statement, affidavit, or further
explanation for the untimely filing.
¶7As noted above, the appellant claims that he believed that he had timely
submitted his petition for review and did not realize that the petition for review
had not been submitted due to “some technical issues.” PFR File, Tab 1 at 4.
Under limited circumstances, the Board will excuse delays in filing caused by
difficulties encountered with the e-Appeal system. See Salazar v. Department of
the Army, 115 M.S.P.R. 296, ¶¶ 6-8 (2010) (excusing a filing delay when the
appellant alleged that he attempted to electronically file his petition for review on
time and the e-Appeal system showed that the appellant had, in fact, accessed the
system prior to the date that his petition was due; it was possible to exit the
system without receiving a clear warning that he had not yet filed his pleading;
and once he became aware that his petition had not been filed, the appellant
contacted the Board and submitted a petition for review that included
an explanation of his untimeliness). However, we find that the appellant’s failure
to complete his submission is not excusable here.
¶8According to the Board’s e-Appeal logs, the appellant accessed the system
to start the process of filing his petition for review at 8:08 p.m. on the date that it
was due, September 21, 2021. When an individual saves a draft petition for
review in the e-Appeal system, the system automatically generates an email to
him on each of the following 3 calendar days warning that the pleading has not
yet been submitted. Palermo, 120 M.S.P.R. 694, ¶ 7. After the appellant saved
his draft petition on September 21, 2021, he would have received reminders on
September 22, 23, and 24, 2021, that his petition had not been filed.2 Due
diligence and ordinary prudence required that the appellant follow up to
determine the status of the petition for review when he received those reminders.
However, he did not submit the petition for review until September 28, 2021.
2 September 21, 2021, was a Tuesday. Thus, the appellant received the email about the
petition for review not having been filed with the Board on 3 business days.4
¶9In addition, the appellant was represented throughout the appeal, and he has
not shown any circumstances beyond his control, such as unavoidable casualty or
misfortune, which affected his ability to comply with the time limits. Nothing in
the Board’s e-Appeal logs suggests that there were problems in the e -Appeal
system during the relevant timeframe. Under the circumstances of this case,
we find that the appellant has failed to establish good cause for his delay in filing
his petition for review. See Palermo, 120 M.S.P.R. 694, ¶¶ 5-8 (declining to
excuse a 7-day delay for claimed difficulties with e-Appeal where the appellant
did not receive a notification advising him that a pleading had been filed and
he was aware that his pleading had not been successfully filed).
¶10Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s removal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.9 | Echevarria_Josue_AT-0752-21-0244-I-1_Final_Order.pdf | 2023-11-08 | JOSUE L. ECHEVARRIA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-21-0244-I-1, November 8, 2023 | AT-0752-21-0244-I-1 | NP |
2,709 | https://www.mspb.gov/decisions/nonprecedential/Julian_Jennifer_DA-3443-22-0386-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER T. JULIAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-3443-22-0386-I-1
DATE: November 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer T. Julian , Fort Worth, Texas, pro se.
Maryl R. Rosen , Esquire, St. Louis, Missouri, 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 her appeal regarding out-of-schedule (OOS) pay for lack of
jurisdiction. On petition for review, the appellant reasserts that the agency owes
her OOS back pay and explains that she has unsuccessfully attempted to resolve
this issue with several entities. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Julian_Jennifer_DA-3443-22-0386-I-1_Final_Order.pdf | 2023-11-08 | JENNIFER T. JULIAN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-3443-22-0386-I-1, November 8, 2023 | DA-3443-22-0386-I-1 | NP |
2,710 | https://www.mspb.gov/decisions/nonprecedential/Aguirre_Gilbert_SF-4324-22-0026-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GILBERT AGUIRRE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-4324-22-0026-I-1
DATE: November 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gilbert Aguirre , Sacramento, California, pro se.
Christine Yen , Esquire, Stockton, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1The appellant, a veteran, has filed a petition for review of the initial
decision, which denied him corrective action in his appeal under the Uniformed
Services Employment and Reemployment Rights Act (USERRA). Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2The agency terminated the appellant during his probationary period based
on his arrest for driving under the influence of alcohol (DUI) and surrounding
circumstances, including the appellant’s attempt to use his Police Officer position
to obtain leniency from the arresting officer, and the need to cancel an upcoming
12-week training course for the appellant due to issues stemming from his arrest.
Initial Appeal File (IAF), Tab 4 at 17, 21-33; Hearing Transcript, Day 2 (HT 2)
at 140-41 (testimony of the deciding official). In addition to issues related to the
DUI incident, the termination notice referenced a written counseling the appellant
received for inappropriate conduct toward a female contractor and his placement
on leave restriction. IAF, Tab 4 at 17, 34-36. The appellant appealed his
termination to the Board, alleging that the agency treated him more harshly than
veterans who did not have combat experience, a claim the administrative judge
recognized as a USERRA appeal.2 IAF, Tab 1, Tab 10 at 4-6, Tab 11 at 1,
Tab 50 at 4. After holding a hearing, the administrative judge found that the
2 The Board has recognized that USERRA prohibits discrimination based not only on
the fact of military service, but also on the particulars of that service. Beck v.
Department of the Navy , 120 M.S.P.R. 504, ¶ 10 (2014).2
appellant’s written counseling, leave restriction, and termination were covered
actions under USERRA’s antidiscrimination provisions. IAF, Tab 61, Initial
Decision (ID) at 3, 15, 18, 21. However, the administrative judge applied the
factors set forth in Sheehan v. Department of the Navy , 240 F.3d 1009, 1014 (Fed.
Cir. 2001), to find that the appellant failed to show that his military service—as a
combat veteran or otherwise—was a substantial or motivating factor in those
actions. ID at 15-23. We discern no reason to disturb the initial decision.3
¶3We acknowledge that in the discussion of the leave restriction letter the
administrative judge erred in finding that the appellant’s managers were unaware
of the appellant’s status as a veteran. Petition for Review (PFR) File, Tab 3
at 16-17; ID at 16, 20. Based on his approved use of disabled veteran leave and
testimony from his managers about his use of such leave, the appellant
established that his managers likely knew he had served in the military. IAF,
Tab 34 at 14, 16-19; HT 2 at 43, 187 (testimony of the Captain, testimony of the
Deputy Chief of Police); see 5 U.S.C. § 6329. However, even if the appellant’s
management knew of his military service, the administrative judge correctly
found that there was no indication that they knew of the fact of his combat
service, which was the basis for the appellant’s USERRA claim. ID at 16; IAF,
Tab 50 at 4.
3 The appellant argues on review that he has new and material evidence and argument
regarding the DUI arrest of a Lieutenant, who, unlike him, was not removed from his
position following the arrest. Petition for Review File, Tab 3 at 29-31. Contrary to the
appellant’s assertions, evidence regarding the Lieutenant’s DUI was presented at length
during the appeal. IAF, Tab 39 at 13-14; Hearing Transcript, Day 1 at 77-83, 99-105,
134-35 (testimony of the Lieutenant, testimony of the former Deputy Chief of Police,
testimony of the combat veteran former Police Officer); HT 2 at 24-28, 87-88, 95-98,
148-51, 172-76 (testimony of the Captain, testimony of the concurring official,
testimony of the deciding official, testimony of the Deputy Chief of Police). The initial
decision reflects that the administrative judge considered the evidence and concluded
that it failed to show that the appellant’s military service, including his combat
experience, was a substantial or motivating factor in his termination. ID at 21-23.
Among other things, the administrative judge found that, unlike the appellant, the
Lieutenant was a tenured employee at the time of the incident. ID at 23. The appellant
has not presented sufficient reasons to disturb the administrative judge’s findings. 3
¶4We also acknowledge that the administrative judge erred in noting that the
appellant had a prior DUI which he did not disclose on his Declaration for
Federal Employment. PFR File, Tab 3 at 32-33; ID at 2 n.1; IAF, Tab 4 at 43-44.
However, contrary to the appellant’s claim that the administrative judge’s
erroneous finding “materially impacted” the results of his appeal, PFR File,
Tab 3 at 33, there is no indication that the administrative judge relied on the
finding to conclude that the appellant failed to meet his burden of showing that
his military service was a substantial or motivating factor in his termination or
any other agency action.
¶5Finally, the appellant argues that the administrative judge erred in denying
his motion to certify an interlocutory appeal of a ruling denying ten witnesses on
relevance grounds, a ruling denying a second motion to compel discovery,
a finding that his rights under National Labor Relations Board v. J. Weingarten,
Inc., 420 U.S. 251 (1975), were not at issue, and notice that she may draw an
adverse inference from his invocation of his privilege against self-incrimination
regarding his DUI arrest. PFR File, Tab 3 at 28-29; IAF, Tabs 53-54.
An administrative judge will certify a ruling for review on interlocutory appeal
only if the record shows that: (a) the ruling involves an important question of law
or policy about which there is substantial ground for difference of opinion;
and (b) an immediate ruling will materially advance the completion of the
proceeding, or the denial of an immediate ruling will cause undue harm to a party
or the public. 5 C.F.R. § 1201.92.
¶6The Board will not reverse an administrative judge’s denial of a request for
certification absent an abuse of discretion. Ryan v. Department of the Air Force ,
117 M.S.P.R. 362, ¶ 5 n.1 (2012); Robinson v. Department of the Army ,
50 M.S.P.R. 412, 418 (1991). Here there is no abuse of discretion as the
appellant’s requests did not meet the Board’s criteria for certifying
an interlocutory appeal. 5 C.F.R. § 1201.92; see Cooper v. Department of the
Navy, 98 M.S.P.R. 683, ¶ 6 (2005) (finding that a discovery dispute is not4
a sufficient basis to certify an interlocutory appeal); Keefer v. Department of
Agriculture, 92 M.S.P.R. 476, ¶ 7 (2002) (finding that an administrative judge
properly declined to certify an interlocutory appeal because the issue, on its face,
did not involve an important question of policy or law). Moreover, any alleged
error regarding the ruling is cured by our consideration of the appellant’s
arguments on petition for review. Strauss v. Office of Personnel Management ,
39 M.S.P.R. 132, 135 n.1 (1988); see Ryan, 117 M.S.P.R. 362, ¶ 5 n.1.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 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. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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.9 | Aguirre_Gilbert_SF-4324-22-0026-I-1_Final_Order.pdf | 2023-11-06 | GILBERT AGUIRRE v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-4324-22-0026-I-1, November 6, 2023 | SF-4324-22-0026-I-1 | NP |
2,711 | https://www.mspb.gov/decisions/nonprecedential/Miles_Christian_AT-0752-17-0565-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTIAN MILES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-17-0565-I-1
DATE: November 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christian Miles , Fayetteville, Tennessee, pro se.
Erasmo Reyes , Redstone Arsenal, Alabama, 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 his removal. On petition for review, the appellant does not challenge
any of the administrative judge’s findings but asks that, in light of the unique
circumstances of his case, the agency change the Standard Form 50 documenting
his removal to reflect that he resigned. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.6 | Miles_Christian_AT-0752-17-0565-I-1_Final_Order.pdf | 2023-11-06 | CHRISTIAN MILES v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-17-0565-I-1, November 6, 2023 | AT-0752-17-0565-I-1 | NP |
2,712 | https://www.mspb.gov/decisions/nonprecedential/Steele_Jonathan_PH-844E-21-0362-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN STEELE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-844E-21-0362-I-1
DATE: November 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan W. Steele , Hermitage, Pennsylvania, pro se.
Kevin Beach , 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 reconsideration decision of the Office of Personal Management
(OPM) denying his application for disability retirement benefits under the Federal
Employees’ Retirement System (FERS). On petition for review, the appellant
argues that he was unable to satisfy the eligibility requirement of 18 months 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).
creditable civilian service because he was forced to resign from his position due
to health issues. 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).
¶2The administrative judge’s decision is based on the clear application of
5 U.S.C. § 8451(a)(1)(A), which requires that an employee complete at least
18 months of creditable civilian service to qualify for disability retirement under
FERS. Initial Appeal File, Tab 14, Initial Decision. In his petition for review,
the appellant does not contest this finding. Petition for Review File, Tab 1 at 3.
Instead, he argues that he was “forced to resign” due to health issues. Id. His
argument speaks to the second eligibility criterion, i.e., that he was unable,
because of disease or injury, to render useful and efficient service in his position,
which the Board need not address because he did not complete the requisite
18 months of civilian service. 5 U.S.C. § 8451(a)(1)(B). We affirm the initial
decision, finding no error.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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Steele_Jonathan_PH-844E-21-0362-I-1_Final_Order.pdf | 2023-11-06 | JONATHAN STEELE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-844E-21-0362-I-1, November 6, 2023 | PH-844E-21-0362-I-1 | NP |
2,713 | https://www.mspb.gov/decisions/nonprecedential/Baldwin_Clarence_Edward_DC-315H-20-0077-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLARENCE EDWARD BALDWIN,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
DC-315H-20-0077-I-1
DATE: November 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clarence Edward Baldwin , Temple Hills, Maryland, pro se.
Pamela Simmonds , Esquire, and James Christopher Bush , Esquire,
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
dismissed his involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant argues, among other things, that he is an “employee”
under 5 U.S.C. § 7511(a)(1)(A) with Board appeal rights by virtue of his prior
service with another agency and his participation in the Civil Service Retirement
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
System. He challenges the accuracy of some of the Standard Forms 50 in the
record and argues the agency erred by not using chapter 75 procedures in
attempting to remove him before he resigned. He also argues that the
administrative judge erred in not allowing him to seek discovery on the
jurisdictional issue. 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).
¶2The administrative judge correctly found that the appellant’s tenure in his
prior position at the Small Business Administration (SBA) cannot be considered
towards satisfying the probationary period in the position at issue in this appeal
because there was a break in service of 354 days between the date he left his SBA
position on March 1, 2016, and his appointment to the position at issue on
February 19, 2017. Initial Appeal File (IAF), Tab 28, Initial Decision at 7; see
Hurston v. Department of the Army , 113 M.S.P.R. 34, ¶ 9 (2010) (finding that an
individual who has not served a full year under his appointment can show that he
has completed the probationary period, and so is no longer a probationer, by
tacking on prior service if: (1) the prior service was rendered immediately
preceding the probationary appointment; (2) it was performed in the same agency;2
(3) it was performed in the same line of work; and (4) it was completed with no
more than one break in service of less than 30 days); 5 C.F.R. § 315.802(b).
Similarly, given that the appellant served in the position at issue in this appeal for
334 days, from February 19, 2017, to January 19, 2018, and had a break in service
of more than one day between his separation from the SBA and his appointment
with the agency, he lacks the one year of current continuous service by which he
might establish that he is an “employee” with Board appeal rights. IAF, Tab 16 at
12, 26; see Hurston, 113 M.S.P.R. 34, ¶ 9. Regarding the appellant’s claim that
his status in the Civil Service Retirement System makes him an employee with
Board appeal rights, his status in a retirement system is not relevant to whether he
is an “employee” under 5 U.S.C. § 7511(a)(1)(A).2
¶3Concerning the appellant’s contentions regarding discovery, 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). The administrative judge
correctly observed that the appellant failed to identify any discovery he sought
which could lead to potentially relevant evidence on the issue of his status as an
“employee” with Board appeal rights. IAF, Tab 6 at 1-2. Similarly, the appellant
fails to explain on review why anything he sought in discovery would have
2 The appellant has also not shown how any purported errors in the Standard Forms 50
in the record are relevant to whether he met the definition of an “employee” with Board
appeal rights. 5 U.S.C. § 7511(a)(1)(A). Because he did not meet the statutory
definition of an “employee,” the appellant was not entitled to chapter 75 procedures.
5 U.S.C. §§ 7511(a)(1), 7513; Sosa v. Department of Defense , 102 M.S.P.R. 252, ¶ 6
(2006). More than 2 years after the close of the record on petition for review, the
appellant filed a motion for leave to file additional evidence, asserting that the agency
prepared a fraudulent Standard Form 50 and committed perjury. Petition for Review
File, Tab 12. The appellant has not explained his argument further nor shown that the
evidence upon which it is based was not available prior to the close of the record; thus,
having failed to show the nature of or need for this additional pleading, his motion is
denied. 5 C.F.R. § 1201.114(a)(5); see Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) (stating that the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).3
changed the result in his appeal. See Russell v. Equal Employment Opportunity
Commission, 110 M.S.P.R. 557, ¶ 15 (finding that the appellant must explain how
any information he sought would have changed the result of the appeal in order to
establish an abuse of the administrative judge’s discretion). Thus, the appellant
failed to show that the administrative judge abused her discretion in denying him
discovery on the jurisdictional issue. Wagner, 54 M.S.P.R. at 452.
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.4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Baldwin_Clarence_Edward_DC-315H-20-0077-I-1_Final_Order.pdf | 2023-11-03 | CLARENCE EDWARD BALDWIN v. DEPARTMENT OF ENERGY, MSPB Docket No. DC-315H-20-0077-I-1, November 3, 2023 | DC-315H-20-0077-I-1 | NP |
2,714 | https://www.mspb.gov/decisions/nonprecedential/Coleman_Renee_DC-0752-17-0103-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE COLEMAN,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DC-0752-17-0103-I-2
DATE: November 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Renee Coleman , Takoma Park, Maryland, pro se.
Eugenia Jackson , Esquire, 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
sustained the agency’s removal action pursuant to 5 U.S.C. chapter 75. On
petition for review, the appellant argues that the administrative judge exhibited
bias and that the agency violated her privacy. The appellant also generally asserts
that her conduct did not warrant removal. Petition for Review (PFR) File, Tab 5
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
at 1-14, Tab 8 at 1-17. 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).
¶2We 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, ¶ 7 (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 bias.
¶3The appellant also alleges that the agency violated her privacy by relying on
a statement she made to an equal employment opportunity (EEO) specialist
professing a desire to kill her supervisor and by referencing a Federal Protective2
Service (FPS) report summarizing her conduct; however, both contentions are
without merit. PFR File, Tab 5 at 4 -5, 11-12. Board proceedings are public in
nature, and there is nothing inherently improper about the agency’s submission
of, or reliance on, an FPS report. See Ortiz v. Department of Justice ,
103 M.S.P.R. 621, ¶ 14 (2006) (explaining that the Board is a public body and the
public has a right to be informed of the Board’s decisions); see also
Kirkland-Zuck v. Department of Housing and Urban Development , 90 M.S.P.R.
12, ¶ 6 (2001) (referencing an FPS citation in reasoning that the appellant’s
removal was appropriate), aff’d, 48 F. App’x 749 (Fed. Cir. 2002). To the extent
the appellant alleges that her statement to the EEO specialist was privileged, we
find her contention unavailing. See Berkner v. Department of Commerce ,
116 M.S.P.R. 277, ¶¶ 13, 15 (2011). Although the Board has noted that EEO
counseling sessions are a context wherein it may be appropriate to afford
employees more leeway, Daigle v. Department of Veterans Affairs , 84 M.S.P.R.
625, ¶ 6 (1999), we see no reason to disturb the administrative judge’s findings in
light of the serious nature and gravity of the appellant’s statement, which
registered such concern with the appellant’s EEO counselor that she immediately
left her meeting with the appellant to report the incident. See Berkner,
116 M.S.P.R. 277, ¶ 13.
¶4On review, the appellant also generally alleges that removal constituted an
excessive penalty.2 PFR File, Tab 8 at 16-17. When the agency’s charges are
sustained, the Board will review an agency-imposed penalty only to determine if
the agency considered all of the relevant factors and exercised discretion within
tolerable limits of reasonableness. Stuhlmacher v. U.S. Postal Service ,
89 M.S.P.R. 272, ¶ 20 (2001). Here, the appellant’s general contention that a
2 Presumably to bolster her assertions as to the impropriety of the penalty imposed, the
appellant provides numerous documents with her petition for review. PFR File, Tab 5
at 15-211, Tab 8 at 18-114. However, the appellant has not shown that these additional
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).3
lesser penalty would have been more appropriate does not warrant disruption of
the administrative judge’s reasoned findings. See id. Thus, the appellant’s
contention in this regard is without merit.
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.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Coleman_Renee_DC-0752-17-0103-I-2_Final_Order.pdf | 2023-11-03 | RENEE COLEMAN v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-0752-17-0103-I-2, November 3, 2023 | DC-0752-17-0103-I-2 | NP |
2,715 | https://www.mspb.gov/decisions/nonprecedential/Little_Eunice_CH-0842-22-0304-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EUNICE LITTLE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0842-22-0304-I-1
DATE: November 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eunice Little , Detroit, Michigan, 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
dismissed the appeal due to its untimely filing and her failure to show good cause
for her delay. On petition for review, the appellant, among other things, files new
evidence which she asserts evidences the previous approval of her retirement
benefits and requests a copy of her Official Personnel File . Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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).
¶2The administrative judge correctly dismissed the appeal based on the
appellant’s untimely filing of her appeal without good cause shown . Based on
tracking information in the record, the appellant received the Office of Personnel
Management (OPM) January 21, 2022 reconsideration decision on January 25,
2022. Initial Appeal File (IAF), Tab 14 at 7-12; USPS.COM – USPS Tracking,
https://tools.usps.com/go/TrackConfirmAction_input?
origTrackNum=9414726699042972253526 . The appellant’s deadline for filing an
appeal of the reconsideration decision was thus February 24, 2022, making her
May 20, 2022 appeal 85 days late. 5 C.F.R. §§ 1201.22(b)(1), 1201 .4(l); IAF,
Tab 1 at 9. Although the administrative judge relied on different dates to
calculate the appellant’s delay, IAF, Tab 16, Initial Decision at 3, her findings
would have been correct even absent the resulting discrepancy (88 days instead of2
85 days), and thus this error affords no basis to disturb the initial decision.2
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).
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.
2 The appellant files new evidence on review which she asserts evidences OPM’s earlier
approval of her retirement benefits. Petition for Review (PFR) File, Tab 1 at 2, 5-10,
12. Because the appellant fails to show that this evidence was unavailable before the
record closed below despite her due diligence, we need not consider it. Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). In any event, it does not show that
the appellant’s appeal was timely filed or that good cause exists for the filing delay.
Regarding the appellant’s request for a copy of her Official Personnel File, PFR File,
Tab 1 at 3, OPM has previously advised the appellant of a method of obtaining that file,
IAF, Tab 14 at 40.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.7 | Little_Eunice_CH-0842-22-0304-I-1_Final_Order.pdf | 2023-11-03 | EUNICE LITTLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0842-22-0304-I-1, November 3, 2023 | CH-0842-22-0304-I-1 | NP |
2,716 | https://www.mspb.gov/decisions/nonprecedential/Gbruoski_Renee_DC-0831-22-0515-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE GBRUOSKI,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-22-0515-I-1
DATE: November 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Renee M. Gbruoski , Clayton, North Carolina, pro se.
Eva Ukkola , 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
dismissed as untimely filed her appeal from the Office of Personnel Management
(OPM)’s reconsideration decision, denying the appellant a Federal Employees’
Retirement System (FERS) dependent child annuity benefit. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2The appellant does not challenge, and we discern no basis to disturb, the
administrative judge’s conclusion that her appeal was untimely filed by 9 days.
Petition for Review (PFR) File, Tab 1; Initial Appeal File (IAF), Tab 5, Initial
Decision at 4; see 5 C.F.R. § 1201.22(b)(1). Instead, she asserts, for the first time
on review, that her medical conditions prevented her from meeting deadlines.
PFR File, Tab 1 at 3-4, 16. The Board generally will not consider evidence or
legal argument raised for the first time in a petition for review absent a showing
that it was not previously available despite the party’s due diligence. See
5 C.F.R. § 1201.115(d).
¶3In any event, we find that the appellant’s assertions and submissions on
review do not warrant a different outcome. The administrative judge informed
the appellant that, to the extent illness prevented her from timely filing her
appeal, she must identify the time period during which she suffered from the
illness, submit medical evidence and any other supporting evidence showing that
she suffered from the illness during the relevant time period, and explain how the
illness prevented her from filing her appeal on time or requesting an extension of2
time to file. IAF, Tab 3 at 3; see Lacy v. Department of the Navy , 78 M.S.P.R.
434, 437 (1998); see also Stribling v. Department of Education , 107 M.S.P.R.
166, ¶ 8 (2007). The appellant alleges on review that she suffers from chronic
pain and physical impairments which limit her in her ability to concentrate, sit for
longer than “5 to 10 minutes” in order to compose pleadings, and bend and search
file boxes in order to locate relevant documents. PFR File, Tab 1 at 3-4, 16.
Although the appellant submitted some medical documentation that confirms that
she suffers from degenerative disc disease, among other conditions, that limit her
mobility and that she experiences chronic pain, it does not reflect that the
appellant’s condition was so severe that she could not file her appeal on time. Id.
at 9, 12-13. Significantly, she does not submit any medical documentation
regarding her medical conditions between the relevant timeframe, i.e., between
her receipt of OPM’s reconsideration decision and her untimely appeal, nor does
she explain why the medical evidence is unavailable. See Cornelius v. National
Credit Union Administration , 87 M.S.P.R. 497, ¶ 8 (2001) (finding that the
appellant failed to establish that his untimely filing was the result of a medical
condition when he failed to demonstrate that he was hospitalized, under
treatment, or otherwise incapacitated during the relevant timeframe).
¶4The appellant’s remaining arguments that “COVID-19” made it difficult for
her to meet deadlines due to mailing delays, that she was confused by the appeal
process, and that she was waiting for the administrative judge to tell her whether
she was in the proper venue are also insufficient to show good cause for her
untimely filed appeal. PFR File, Tab 1 at 4. Inexperience with legal matters and
unfamiliarity with Board procedures do not warrant waiver of the filing deadline.
Zamot v. U.S. Postal Service , 91 M.S.P.R. 475, ¶ 7 (2002), aff’d, 332 F.3d 1374
(Fed. Cir. 2003). Also, a general inability to understand instructions and
procedures does not provide a basis for waiver of the time limit for filing.
Cornelius, 87 M.S.P.R. 497, ¶ 8. A general claim of mail delays is not sufficient
to show good cause for an untimely filed appeal. Suratos v. Office of Personnel3
Management, 56 M.S.P.R. 201, 203 (1993). Lastly, to the extent the appellant
asserts that she is unable to afford or obtain an attorney, her inability to retain
and/or afford an attorney does not establish good cause for the delay. PFR File,
Tab 1 at 4, 16; see Hawkins v. Department of the Navy , 67 M.S.P.R. 559, 562
(1995). Accordingly, we find no basis to disturb the administrative judge’s
determination to dismiss this appeal as untimely filed without a showing of good
cause.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.8 | Gbruoski_Renee_DC-0831-22-0515-I-1_Final_Order.pdf | 2023-11-01 | RENEE GBRUOSKI v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-22-0515-I-1, November 1, 2023 | DC-0831-22-0515-I-1 | NP |
2,717 | https://www.mspb.gov/decisions/nonprecedential/CASTO_JASON_REX_CH_0752_19_0357_I_1_FINAL_ORDER_2067142.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JASON REX CASTO,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -19-0357 -I-1
DATE: September 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adam R. Webber , Esquire, Beavercreek, Ohio, for the appellant.
Jason P. Matthews , Esquire, Dayton, Ohio, for the appellant.
Kimberly Huhta , Esquire, Dayton, Ohio, for the agency .
Nicholas Kennedy , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
found that the appellant involuntarily resigned from the agency and reversed the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Par ties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Ord er has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
agency’s removal action. On petition for review, the agency argues that the
administrative judge erred in finding jurisdiction over the appeal because she
improperly applied 5 U.S.C. chapter 75 to the appeal, when she should have
applied 38 U.S.C. § 714, as it was the authority the agency relied on in the notice
of proposed removal and the removal decision , which motivated the appellant’s
resignation . Petition for Review (PFR) File, Tab 1 at 12-13. Further, the agency
asserts that had the administrative judge ap plied 38 U.S.C. § 714, the appeal
would have been dismissed as untimely filed because it was not filed within
10 business days as required by 38 U.S.C. § 714(c)(4)(B). Id. at 14 -17.
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 interpretati on 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 abus e of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal R egulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we 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 We disagree with the agency ’s assertion that the administrative judge erred
in finding that the Board had jurisdiction o ver the appellant’ s involuntary
resignation appeal . PFR File, Tab 1 at 12 -13. First, we discern no error in the
administrative judge’s recitation of the applicable jurisdictional standards for
appeals alleging an involuntary resignation. Initial Appeal File (IAF), Tab 38,
Initial Decision (ID) at 5. Further, we discern no error in the administrative
3
judge’s application of those standard s. Our reviewing court issued a precedential
decision in Sayers v. Department of Veterans Affairs , holding that 38 U.S.C.
§ 714 did not have retroactive effect on misconduct that occurred prior to its
enactment date. 954 F.3d 1370 , 1381 -82 (Fed. Cir. 2020). Therefore, the
administrative judge was correct in finding that section 714 could not be applied
to the appellant’s charged misconduct which occurred on May 24, 2017 and
June 6, 2017 , prior to the June 23, 2017 enactment of 38 U.S.C. § 714. ID
at 6-10. The agency’s argument on review that 38 U.S.C. § 714 should have
applied is unpersuasive , and we see no basis for disturbing the administrative
judge’s finding s on jurisdiction. 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).
¶3 As for the agency’s argument that the appeal should have been dismissed as
untimely filed , in accordance with our decision in Wilson v. Department of
Veterans Affairs , 2022 MSPB 7, this argument is unavailing .2 The Board in
Wilson determined that 38 U.S.C. § 714 is entirely silent on the issue of mixed
cases and does not repeal, either explicitly or implicitly , the provisions contained
in 5 U.S.C. § 7702 , which expressly addresses the Board’s handling of mixed
cases .3 Wilson , 2022 MSPB 7, ¶¶ 12-19. Accordingly, the Board found that if an
appellant files an equal employment opportunity ( EEO ) complaint challenging an
adverse action taken pursuant to 38 U.S.C. § 714, and then files a subsequent
Board appeal, that appeal is subject to the procedures set forth at 5 U.S.C. § 7702 ,
2 In support of its argument, the agency cites to several initial decisions. PFR File,
Tab 1 at 16 -17. As the Board is not bound by initial decisions, they have no
precedential effect, and the agency’s reliance on these decisions is misplaced. Special
Counsel v. Greiner , 117 M.S.P.R. 117, ¶ 11 n.5 (2011) .
3 A mixed case arises w hen an appellant has been subject ed to an action that is
appealable to the Board, and he alleges that the action was effected, in whole or in part,
because of discrimination . Miranne v. Department of the Navy , 121 M.S.P.R. 235 , ¶ 8
(2014) .
4
and not th ose set forth at 38 U.S.C. § 714. Id., ¶¶ 19, 25. Here, the appellant
filed an EEO complaint that includ ed his claim of constructive discharge before
he filed his Board appeal . IAF, Tab 28 at 29-30. Thus, this appeal is a mixed
case complaint and is subject to the procedures set forth at 5 U.S.C. § 7702 .
Title 5 U.S.C. § 7702 (e)(2) expressly allows an appellant to file a Board appeal
after 120 days have elapsed from the filing of his EEO complaint if the agency
has not issued a final decision. Accordingly, as over 120 days elapsed from the
filing of the appellant’s EEO complaint without a final decision from the agency ,
the appellant’s Board appeal was timely filed . Id. at 7, 32.
ORDER
¶4 We ORDER the agency to restore the appellant effective September 28,
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.
¶5 We also ORDER the agenc y 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, in terest 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.
¶6 We further ORDER the agency to tell the appellant promptly in writing
when it believes it ha s 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).
5
¶7 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 appel lant
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 c ommunications with the agency. 5 C.F.R. § 1201.182 (a).
¶8 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Def ense 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
documentati on 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNE Y FEES AND COSTS
¶9 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.
6
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C . § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirem ents. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If yo u have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 i n final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Cour t 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
releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 competen t jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with t he U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 noti fied 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 ea rnings 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 l ater 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 fr om 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).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 s ubmit 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 Sev erance 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 Rest oration 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. | CASTO_JASON_REX_CH_0752_19_0357_I_1_FINAL_ORDER_2067142.pdf | 2023-09-08 | null | CH-0752 | NP |
2,718 | https://www.mspb.gov/decisions/nonprecedential/FERRELL_JACK_SF_0353_16_0678_I_1_FINAL_ORDER_2067149.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACK FERRELL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0353 -16-0678 -I-1
DATE: September 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Guillermo Mojarro , Upland, California , for the appellant.
Scott L. Zielinski , Esquire, Long Beach , California, 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 restoration appeal for lack of jurisdiction. On petition for review,
the appellant continues to argue that he was entitl ed to a limited -duty assignment
within his medical restrictions as a reasonable accommodation. He also argues
that the administrative judge abused her discretion by dismissing the appeal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
without providing adequate not ice of his jurisdictional burden . 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 avai lable
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the 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.3 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
2 We are not persuaded by the appellant’s argument that the administrative judge abused
her discretion. The administrative judge provided the appellant with detailed notice of
his jurisdictional bur den under 5 C.F.R. § 353.301 (b). Initial Appeal File, Tab 3.
3 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is not material to his appeal. Therefore, it provides no basis to
disturb the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349
(1980) (explaining that the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warra nt an outcome different
from that of the initial decision).
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 advis e which option is most appropriate in any matter.
3
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file wi thin the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petitio n for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A) .
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained with in 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 infor mation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 unl awful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), wi thin 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed la wyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimi nation claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge 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 e ither 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 A ct, signed into law by the President on
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 “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FERRELL_JACK_SF_0353_16_0678_I_1_FINAL_ORDER_2067149.pdf | 2023-09-08 | null | SF-0353 | NP |
2,719 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_TAMARA_DC_1221_16_0475_W_2_REMAND_ORDER_2067176.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAMARA WILLIAMS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-1221 -16-0475 -W-2
DATE: September 8, 2023
THIS ORDER IS NONPRECEDENTIAL1
Michelle F. Bercovici , Esquire, Washington, D.C., for the appellant.
David R. Scruggs , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has fil ed 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 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).
2
initial decision, and REMAND the case to the Washington Regional Office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The app ellant was a GS -14 Contract Spec ialist for the agency who resigned
effective December 31, 2015. Williams v. Departm ent of Veterans Affairs , MSPB
Docket No. DC-1221 -16-0475 -W-2, Appeal File ( W-2 AF) , Tab 10 at 8. On
April 6, 2016, the appellant filed an IRA appeal and requested a hearing.
Williams v. Department of Veterans Affairs , MSP B Docket No. DC -1221 -16-
0475 -W-1, Initial Appeal File (IAF) , Tab 1 at 2, 6 -11. The administrative judge
ordered the appellant to list the protected disclosures and personnel actions that
she was claiming and identify the specific place s in her Office of Special Counsel
(OSC) complaint in which she raised these issues. W-2 AF, Tabs 35 -36. He
instructed her to produce the lists in a particular format, specified the information
that she was to include , and emphasized the need for brevity . W-2 AF, Tab 35.
The appellant responded with a se ven-page document setting forth 12 disclosures
and 17 personnel actions .2 W-2 AF, Tab 41 at 5 -11. She included nearly 900
pages of exhibits. W-2 AF , Tab 41 at 12 -327, Tabs 42 -46.
¶3 The case was subsequently reassigned to a different administrative judge,
who issued an in itial decision dismissing the appeal for lack of jurisdiction
because the appellant failed to make a nonfrivolous allegation that she made a
protected disclosure. W-2 AF , Tab 50, Tab 51, Initial Decision (ID) at 1, 10.
The administrative judge did not address the list of personnel actions that the
appellant submitted in response to the jurisdictional order. Instead, he addressed
the appellant’s original OSC complaint in which she raised several alleged
disclosures of improprieties in the agency’s handling of contracts. ID at 5 -6. The
2 The appellant raised some of these alleged personnel actions as part of a hostile work
enviro nment claim, rather than as individual personnel actions in their own right.
W-2 AF, Tab 41 at 10 -11.
3
administrative judge analyzed these claims and concluded that the appellant failed
to raise a nonfrivolous allegation that she made an y protected disclosures. ID
at 6-10.
¶4 The appellant has filed a petitio n for review stating that the initial decision
was in error and requesting that the Board hold the processing of her petition in
abeyance pending the outcome of her equal employment opportunity complaints.
Petition for Review (PFR) File, Tab 1at 4 -7. She requests, alternatively , a 30-day
extension to file a brief in support of her petition. Id. at 6. The agency has filed
a response. PFR File, Tab 3.
ANALYSIS
The appellant’s request to hold the processing of her claim in abeyance is denied .
¶5 In her petit ion for review, the appellant requests that the Board refrain from
ruling on her petition until the Equal Employment Opportunity Commission
(EEOC) has issued a final decision in a related case. PFR File, Tab 1 at 6. She
asserts that the resolution of her claims before the EEOC may render moot or
resolve the issues in the instant appeal. Id. We disagree. Although the
appellant’s equal employment opportunity complaint may pertain to the same
personnel actions at issue in her IRA appeal, the EEOC lacks ju risdiction over
whistleblower claims, Ron W. v. Department of Veterans Affairs , EEOC Appeal
No. 0120161855 , 2016 WL 6156255, *3 (Oct. 11, 2016), and so the issues to be
decided by the Board and the EEOC are necessarily distinct. Considering the
Board’s st atutory mandate to expedite the proceedings before it, 5 U.S.C.
§ 7701 (i)(4), we find insufficient basis to grant the appellant’s request.
Accordingly, her request i s denied . The appellant’s requ est for an extension to
file a supplemental briefing is also denied . See 5 C.F.R. § 1201.114 (b)
(explaining that a petition for review must state a party’s objection to the initial
decision, including all of the party’s factual and legal arguments).
4
The appellant has established jurisdiction over her appeal.
¶6 The Board has jurisdiction over an IRA ap peal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegation s that:
(1) she engaged in activity protected under 5 U.S.C. § 2302 (b)(8) or (b)(9)(A)(i),
(B), (C), or (D); and (2) the activity was a contributing factor in the agency ’s
decision to take , fail to take , or threaten to take a personnel action as defined by
5 U.S.C. § 2302 (a). Linder v. Dep artment of Justice , 122 M.S.P.R. 14, ¶ 6
(2014). Once an appellant has established Board jurisdiction over her appeal, she
is en titled to a hearing on the merits in which she will have the opportunity to
prove her claim by preponderant evidence. Iyer v. Department of the Treasury ,
95 M.S.P.R. 239, ¶ 6 (2003) , aff’d , 104 F. App’x 159 (Fed. Cir. 2004) .
¶7 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 her position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Salerno v. Department of the
Interior , 123 M.S.P.R. 230 , ¶ 6 (2016) . 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 person nel action in any way. 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. In additio n to the
knowledge /timing test, there are other possible ways for an appellant to satisfy
the contributing factor criterion. See Dorney v. Department of the Army ,
117 M.S.P.R. 480 , ¶¶ 14-15 (2012) (explaining that other evidence relevant to the
5
contributing factor criterion includes the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistle blowing was
personally directed at the proposing or deciding officials, and whether those
officials had a desire or motive to retaliate).
¶8 On review, the appellant asserts, without explanation, that the initial
decision is based on an erroneous interpretati on of the law and contains erroneous
findings of material fact. PFR File, Tab 1 at 4 -6. The appellant’s bare assertion
fails to meet the Board’s requirements for the content of a petition for review.
See 5 C.F.R. § 1201.114 (b). It constitutes mere disagreement with the initial
decision and therefore provides no basis for us to disturb it. See Weaver v.
Department of the Navy , 2 M.S.P.R. 129 , 133 -34 (1980), review denied per
curiam , 669 F.2d 613 (9th Cir. 1982). Nevertheless, under 5 C.F.R.
§ 1201.115 (e), notwithstanding the sufficiency of a petition for review, the Board
reserves the authority to consider any issue in an appea l before it. Based on our
review of the record in this case, we find that the appellant has, in fact,
established jurisdiction over her appeal and that a remand is warranted. See
Stoglin v. Department of the Air Force , 123 M.S.P.R. 163 , ¶ 7 (2015) (finding
that the issue of jurisdiction is always before the Board and may be raised at any
time) , aff’d , 640 F. App’x 864 (Fed. Cir. 20 16).
¶9 In his initial decision, the administrative judge remarked on the appellant’s
voluminous jurisdictional filings and stated that the Board is not obliged to pore
through them to make sense of her claim s, and that one whose submissions lack
clarity runs the risk of being found not to have met her burden. ID at 5 & n.2.
Although we agree with the administrative judge’s remarks in principle, he
appears to have overlooked the listing of disclosures and personnel actions that
the appellant filed in respons e to the jurisdictional order. W-2 AF, Tab 41
at 5-11. We find that the appellant prepared these lists in accordance with the
administrative judge’s instructions and that they clearly set forth all the elements
6
of her claim s as necessary for us to make a jurisdictional determination.3
W-2 AF, Tabs 35 -36, Tab 41 at 5 -11.
Disclosure 1
¶10 The appellant alleges that she made a protected disclosure several times
between March 22 and May 9, 2013, concerning work on expired construc tion
contracts. W-2 AF, Tab 41 at 5, Tab 44 at 6 -7. Specifically, she claims she
disclosed that the agency “improperly ordered to open 20 expired contracts, make
modifications to the original scope of work, and extend the period of performance
dates.” W-2 AF, Tab 41 at 5. According to the appellant, the agency’s actions
violated, among other things, the “bona fide needs rule” of 31 U.S.C. § 1502 ,
which provides that “[t]he balance of an appropr iation or fund limited for
obligation to a definite period is available only for payment of expenses properly
incurred during the period of availability . . . .” Id. at 5 & n.2. In other words,
“[f]iscal year appropriat ions may properly be obligated only for bona fide needs
actually existing within the fiscal year sought to be charged.” 33 Comp. Gen. 90
(Aug. 20, 1953). The appellant explains that, if the agency uses expired funds to
pay for additional work not required in the original contracts, it may violate the
3 Although our review of this case is at the jurisdictional stage, we note that certain of
the appellant’s disclosures appear to reflect her belief that, if she had followed some of
the agency’s instructions, she would have had to violate a law, rule, or regulation. 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.” The U.S. Court of
Appeals for the Federal Circuit 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
Pres ident 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 provi de whistleblower protection for
individuals who refuse to obey an order that would require the violation of a law, rule ,
or regulation. Nevertheless, th e Board has determined that this expansion does not
apply retroactively to cases pending at the time the Act was enacted, and so it does not
change the analysis in this case. Fisher v. Department of the Interior , 2023 MSPB 11 ,
¶¶ 12-19.
7
bona fide needs rule. W-2 AF, Tab 41 at 5 n.2. We find that the appellant has
made a nonfrivolous allegation that she reasonably believed that she disclosed a
violation of law.4
Disclosure 2
¶11 The appellant alleges that on June 25 and 26, 2013 , she disclosed that an
agency official signed and issued a notice to proceed for contactors to perform
additional work even though this official lacked delegated contracting authority.
W-2 AF, Tab 41 at 5. She claims that the official’s actions violated 48 C.F.R.
§ 1.602 -3(a), defining “unauthorized commitment” as an agreement that i s not
binding solely because the Government representative who made it lacked the
authority to do so. Id. However, we find that this subsection is definitional in
nature and is therefore not capable of being violated. Furthermore, as set forth in
the fol lowing subsection, there is no prohibition against creating unauthorized
commitments. 48 C.F.R. § 1.602 -3(b). Therefore, the appellant has not made a
nonfrivolous alleg ation that she reasonably believed the agency committed any
wrongdoing with respect to an unauthorized commitment. Nevertheless,
construing the appellant’s allegation generously, it appears that she may be
alleging a violation of 48 C.F.R. § 836.213 -70(a),5 which prov ides that a notice to
proceed must be provided by the “contracting officer” for construction
contractors to begin work. A contracting officer is a person with the authority to
enter into, administer, or terminate contracts and to make related determinatio ns
and findings. 48 C.F.R. § 2.101 . The appellant asserts that the official who
4 The appellant also alleges that the agency’s actions violated other unspecified
“principles,” including un specified Federal Acquisition Regulations (codified in
relevant part at 48 C.F.R. chapters 1, 8). W -2 AF, Tab 41 at 5. This vague, conclusory
allegation, even read in conjunction with the supporting materials that the appellant
cites, does not rise to th e level of a nonfrivolous allegation. See El v. Departmen t of
Commerce , 123 M.S.P.R. 76 , ¶ 6 (2015), aff’d , 663 F. App’x 921 (Fed. Ci r. 2016) .
5 See 73 Fed. Reg. 2712 -01, 2760 (Jan. 15, 2008). This regulation is no longer in effect.
See 84 Fed. Reg. 9968 -01, 9972 (Mar. 19, 2019).
8
issued the notice to proceed was not a contracting officer and lacked delegated
authority to act as one. W-2 AF, Tab 41 at 5. We therefore find that the
appellant made a nonfrivolous allegation that she disclosed what she reasonably
believed to be a violation of 48 C.F.R. § 836.213 -70(a). See Kalil v. Department
of Agriculture , 96 M.S.P.R. 77 , ¶ 16 (2004) (finding that it is not always
necessary to identify a specific law, rule, or regulation to make a nonfrivolous
allegation of a protected disclosure concerning a violation of the same).
Disclosure 3
¶12 The appellant alleges that on July 31 and August 1, 2013 , she filed a hotline
complaint with the agency ’s Office of Inspector General , alleging various acts of
agency malfeasance. W-2 AF, Tab 41 at 6. Under 5 U.S.C. § 2302 (b)(9)(C),
disclosing informa tion to an Inspector General , in accordance with applicable
provisions of law, constitutes protected activity without regard to the contents of
the disclosure. We therefore find that the appellant made a nonfrivolous
allegation that she engaged in protect ed activity under 5 U.S.C. § 2302 (b)(9)(C).
Disclosure 4
¶13 The appellant alleges that, on August 6 and 23, 2013, she disclosed that two
officials were serving in GS -13 contractor positions, and were acting as managers
or supervisors, without the required credentials (Federal Acquisition
Certifications in Contracting). W-2 AF, Tab 41 at 6. According to the
appellant ’s complaint to OSC, this violates 41 U.S.C. § 433,6 which authorizes
the Office of Federal Procurement Policy (OFPP) to establish requirements for
jobs in the 1102 occupational series. Id. at 6, 18. We find that the law that the
appellant cites merely authorizes the OFPP to establish qualifications for t he
1102 job series, and could therefore not have been violated as she alleges.
Furthermore , we have review ed OFPP’s related materials , but we were not able to
6 Section 433 of Title 41 of the United States Code is now at 41 U.S.C. § 1703 .
9
locate a requirement that these GS -13 positions require the certifications in
question . Office of Management and Budget, OFPP Letter 05 -01, ¶ 8(b)(1) -(2)
(Apr. 15, 2005) , https://obamawhitehouse.archives.gov/omb/procurement_policy_
letter_05 -01 (last visited Sept . 7, 2023) . We therefore find that the appellant has
failed to make a nonfrivolous allegation that she reasonably believed that this
disclosure evidenced a violation of law or any other categ ory of G overnment
wrongdoing under 5 U.S.C. § 2302 (b)(8)(A).
Disclosure 5
¶14 The appellant alleges that on September 24 and October 3, 2013, she
disclosed that the agency was ordering her to sign a contract for a procurement
that had not been conducted in accordance with the Federal Acquisition
Regulations and in accordance with a recent audit from the Office of Inspector
General. W-2 AF, Tab 41 at 6. She alleges that th is disclosure evidenced a
violation of 48 C.F.R. §§ 1.602 -1(b), 803.104 -7(a), 803.602,7 and Department of
Veterans Affairs, Veterans Hea lth Administration (VHA) Handbook 1002.02,
Minor C onstruction Program.8 W-2 AF, Tab 41 at 6 -7. According to the
appellant , the agency attempted to coerce her into signing a contract that was
missing eight required pieces of information. W-2 AF, Tab 45 at 26. The record
does not appear to contain adequ ate information for us to determine whether the
contract in question actually required these eight pieces of information, or if they
were in fact missing , as the appellant alleges. However, the appellant is not
required to prove her claim at the jurisdictional stag e—only to make a
7 Sections 803.104 -7(a), 803.602 of Title 48 of the Code of Federal Regulations , see
73 Fed. Reg. 2712 -01, 2731 (Jan 15, 2008), are no longer in effect, see 83 Fed. Reg.
16206 -01, 16208 (Apr. 16, 2018).
8 The VHA has since rescinded the November 8, 2012 version of the Handbook in effect
at the time of the appellant’s alleged disclosures. VHA Directive 1002.02, VHA Minor
Construction Program at 1 (Aug. 23, 2022), https://www.va.gov/vhapublications/ViewP
ublication.asp?pub_ID=9917 (last visited Sept. 7, 2023) .
10
nonfrivolous allegation thereof. Smart v. Department of the Army , 98 M.S.P.R.
566, ¶ 9, aff’d , 157 F. App’x 260 (Fed. Cir. 2005) ; 5 C.F.R. § 1201.57 . We find
that if the facts that the appellant alleges are true, she could reasonably hav e
concluded that the agency was ordering her to violate at least 48 C.F.R.
§§ 1.602 -1(b), which provides that n o contract shall be entered into unless the
contracting officer ensures tha t all legal requirements and other applicable
procedures have been met . See Reid v. Merit Systems Protection Board , 508 F.3d
674, 677 (Fed. Cir. 2007) (finding that protected disclosures may relate to
imminent violations of law not yet carried out).
Disclosure 6
¶15 The appellant alleges that between October 8 and 11, 2013, she disclosed
that she was issued a performance appraisal for a period of less than 90 days.
W-2 AF, Tab 41 at 7. She claims that the agency ’s actions violated 5 U.S.C.
§ 2302 (b)(12), the applicable collective bargaining agreement , and provisions of
VA Directive 5013. Id. It is not clear to us how the appellant’s allegations, even
if true, could evidence a violation of 5 U.S.C. § 2302 (b)(12), which prohibits
personnel actions that violate laws concerning the merit syst em principles of
5 U.S.C. § 2301 (b). However, we find that the appellant might have reasonably
believed that the agency ’s actions were in violation of VA Directive 5013/ 8, Pt. I ,
§ 7(a), https://www.va.gov/vapubs/viewPublication.asp?Pub_ID=211 (last visited
Sept. 7, 2023), which provides that “[t]he minimum appraisal period is
90 calendar days under a performance plan.” The record seems to show that the
agency issued the appellant two interim performance appraisals for periods of less
than 90 days. W-2 AF, Tab 41 at 294, 297 . Although the Directive appears to
apply the 90 -day minimum appraisal period only to final appraisals , we find that
the appellant, who is presumably not well versed in Federal personnel law, could
nevertheless have reasonably understood the requirement to apply to interim
11
appraisals as well.9 See Mithen v. Department of Veterans Affairs , 122 M.S.P.R.
489, ¶ 24 (2015) (finding that a disclosure that does not identify any actual
wrongdoing under 5 U.S.C. § 2302 (b)(8) is nevertheless protected if the appellant
reasonably believed that it did) , aff’d , 652 F. App’x 971 (Fed. Cir. 2016) . We
therefore find that the appellant has made a nonfriv olous allegation of a protected
disclosure based on her belief that the agency had violated VA Directive 5013/ 8,
Pt. I, § 7(a) .
Disclosure 7
¶16 The appellant alleges that on October 31 and November 1, 2013, she
disclosed various acts of agency malfeasance to the Office of Inspector General .
W-2 AF, Tab 41 at 7 . We find that the appellant ’s disclosure of information to an
Inspector General would constitute protected activity under 5 U.S.C.
§ 2302 (b)(9)(C) .10 We therefore find that she has made a nonfrivolous allegation
that these communications with the Inspector General constituted protected
activity.
Disclosure 8
¶17 The appellant alleges that on January 16, 2014, she disclosed to agency
officials that an agency employee had been acting outside the scope of her
authority and misrepresenting herself as a contract ing officer before the U.S.
Civilian Board of Contract Appeals. W-2 AF, Tab 41 at 8. She alleges that, in
this same disclosure, she reported that her reviewing official had downgrade d her
9 Our finding is supported by the absence of any clear indication on the performance
appraisal documents that they constituted interim ratings. W -2 AF , Tab 41 at 292 -98.
Furthermore, when the appellant raised her concerns to her superior, the Director of
Contracting, it appears that he was unable to provide her an answer without assistance
from Human Resources. W -2 AF, Tab 46 at 490-91.
10 The language of 5 U.S.C. § 2302 (b)(9)(C) was expanded by the National Defense
Authorization Act of 2018, Pub. L. No. 115 -91, 131 Stat. 1238 (2017). This expansion,
however, does not affect the analysis here.
12
performance evaluation based on the improper “unacceptable” rating given by her
rating official. Id. The appellant explained in her OSC complaint that the rating
official’s mid -year rating had been retracted , but the reviewing official relied
upon it despite that fact . Id. at 18.
¶18 Regarding the first of these allegations, we find that, if an agency official
had misrepresented her position to the U.S. Civilian Board of Contract Appeals ,
the appellant could re asonably conclude that some law, rule, or regulation had
been violated. Kalil , 96 M.S.P.R. 77, ¶ 16. We therefore find that she ha s made
a nonfrivolous allegation of the same.
¶19 As to the second allegation, it appears that the gravamen of this claim is
that the appellant believed that her performance rating was the product of
whistleblower retaliation. W-2 AF, Tab 46 at 21. In othe r words, she is alleging
that she disclosed a violation of 5 U.S.C. § 2302 (b)(8) . Whether the appellant
can prove that she had a reasonable belief of this may depend largely on whether
she can prove by preponderant evidence that she reasonably believed that any of
the activit ies or disclosures discussed above were protected. In any event, we
find that she has alleged sufficient facts at this stage to support a nonfrivolous
allegation.
Disclosure 9
¶20 The appellant alleges that between May 21 and 28, 2 014, she disclosed that
the Director of Contracting assigned her to take over the responsibilities of two
position s—supervisor of the Washington, D.C. Commodities Team and supervisor
of the Martinsburg, West Virginia Commodities Team. W-2 AF, Tab 41 at 8.
She claims that this action was improper because the Director failed to provide
her with “adequate resources or compensation” and failed to document the action
officially via a Standard Form 50 or 52. Id. She also asserts that the Director’s
actions were contrary to Office of Personnel Management (OPM) requirements
and were in retaliation for protected whistleblow ing. Id. The appellant has not
cited to any law, rule, regulation, or practice that would prohibit the agency from
13
assigning her additional employees to supervise without additional compensat ion.
Nor has she explained what OPM “requirements” were violated or why she
believes that the agency ’s action required additional documentation. The
appellant has given us no reason to doubt that assigning her this additional work
was, in itself, within the agency ’s sound discretion and lawful authority.
Nevertheless, to the extent that the appellant reasonably believed that the
assignment of additional duties was retaliatory under 5 U.S.C. § 2302 (b)(8), and
she actually disclosed this belief, her disclosure may have been protected. We
therefore find that she has raised a nonfrivolous allegation in connection with this
disclosure.
Disclosure 10
¶21 The appellant alleges that on June 16, 2014, she disclosed that the Director
would be violating the agency’s whistleblower protection policy by issuing a
letter of counseling to a Junior Contract Specialist because she believed the letter
to be retaliatory or otherwise improper. W-2 AF, Tab 41 at 8. T he Director had
ordered the appellant to prepare the letter based on that Contract Specialist’s
alleged failure to follow instructions. W-2 AF, Tab 46 at 56. The appellant
prepared the letter and returned it to the Director for his signature , but t he
Direct or replied that the appellant would be the one signing the letter . Id.
at 53-55. T he appellant refused to sign the letter , stating that she had no direct
involvement in the matter, she was unsure t hat the Contract Specialist actually
had committed any wro ngdoing, and issuing the letter would violate the
Whistleblower Protection Act . Id. at 53.
¶22 Having reviewed the information that the appellant had at the time the
Director ordered her to execute the letter of counseling, we find that she has
failed to ma ke a nonfrivolous allegation that she reasonably believed that the
agency was committing any type of wrongdoing covered under 5 U.S.C.
§ 2302 (b)(8)(A). Specifically, the Contract Specialist in que stion approached a
contractor at the Washington, D.C. V A Medical Center and questioned the
14
contractor’s presence in the facility, demanding to see the contract that authorized
him to be there. Id. at 62 -63. Word of this encounter reached the Director, wh o
emailed the Contract Specialist and told him that they needed to speak about it.
The Contract Specialist replied, with copies to several Senior Executive Service
(SES) officials and others, explaining his side of the story. Id. at 61 -62. The
Director responded, assuring the Contract Specialist that there was a contract
authorizing the contractor to perform his duties at the Medical Center. Id. at 60.
He instructed the Contract Specialist to utilize his chain of command and asserted
that there was no need to include the SES officials in his previous email. Id. The
Director stated that the Contract Specialist had been repeatedly warned about this
issue and that any future infractions would be met with an official counseling. Id.
The Contract Specialist nevertheless replied to the Director, with copies to the
SES officials, complaining about the way the Director was handling the matter
and attempting to justify his own actions. Id. at 59. It was then that the Director
ordered the appellant to issue the letter of counseling. Id. at 58 -59. Having
reviewed all this evidence, we find nothing in the Contract Specialist’s last
emai l—the one for which he was to be counsele d—that could reasonably be
construed as a protected disclosure . Id. at 59. Furthermore, it is clear that the
Contract Specialist ignored the Director’s stern warning and blatantly violated his
explicit order not an hour after he had received it. Id. at 59 -60. We therefore
find no reasonable basis to conclude that issuing the Contract Specialist a letter of
counseling would be, in any way, improper. The appellant has failed to make a
nonfrivolous allegation that D isclosure 10 was protected.
Disclosure 11
¶23 The appellant alleges that on several dates between June and October, 2014,
she disclosed to agency officials and entities that she was being retaliated against
for whistleblowing activities. W-2 AF, Tab 41 at 9. She claims that she reported
retaliation in the form of a reprimand, a proposed suspension, designati on of
certain absence s as absence without leave (AWOL), and various other actions.
15
Id. Again, the appellant’s ability to prove by preponderant evidence that this
disclosure was protected may depend on her ability to prove that the disclosures
and activities above were protected. However, at the jurisdictional stage , we find
that she has met her burden of making a nonfrivolous allegation that she
reasonably believed she was disclosing retaliation for her prior whistleblowing .
Disclosure 12
¶24 The appellant alleges that at some point in 2013 or 2014, agency
management received a report of an external audit that uncovered serious
problems with contracts in the Washington, D.C. -area, including a list of 16
expired purchase orders totaling $38,000,000. W-2 AF, Tab 41 a t 9, Tab 46
at 65. She states that her superiors knew that she was interviewed in connection
with this audit and perceived her to be a source of information to the auditor.
W-2 AF, Tab 41 at 9 . Given the nature of what the appellant alleged that the
audit uncovered, we find that she has made a nonfrivolous allegation that she was
perceived as a whistleblow er. See generally King v. Department of the Army ,
116 M.S.P.R. 689 , ¶ 8 (2011) (explaining the standard for establishing
jurisdiction as a perceived whistleblower) .
Personnel Actions and Contributing Factor
¶25 The appellant alleges that the agency took multiple personnel actions
against her in retaliation for her alleged protected activity . W-2 AF, Tab 41
at 10-11. Considering the appellant ’s allegations as a whole, we find that she
made a nonfrivolous allegation that the agency subjected her to nine personnel
actions, and, as discussed below, that one or more of her disclosures and/or her
protected activity was a contributing factor in those actions.
¶26 The appellant alleges that on July 11, 2013, the Director failed to select her
for a Supervisory Contract Specialist po sition in retaliation for Disclosures 1
and 2. Id. at 10. Because the appellant alleges that she made Disclosures 1 and 2
within a few months of her nonselection for promotion, and that the Director
16
knew about these disclosures, we find that she has made a nonfrivolous allegation
under the knowledge/timing test of 5 U.S.C. § 1221 (e)(1) that they were a
contributing factor in her nonselection, which is a personnel action under
5 U.S.C. § 2302 (a)(2)(A)(ii). W-2 AF, Tab 41 at 5 -6; see Mastrullo v.
Department of Labor , 123 M.S.P.R. 110 , ¶ 21 (2015) (finding that a period of 1 to
2 years between a disclosure and a personnel action is sufficient t o satisfy the
timing component of the knowledge/timing test).11
¶27 The appellant alleges that on August 7, 2013, the Construction Team
Manager issued her a mid -point performance evaluation with a rating of
“unacceptable” in retaliation for Disclosures /protecte d activity 1, 2, and 3 .
W-2 AF, Tab 41 at 5 -6, 10. However, we find that this mid -point review does
not, in itself, constitute a “personnel action” under 5 U.S.C. § 2302 (a)(1)(A).
W-2 AF, Tab 42 at 87 -89; see King v. Department of Health and Human Services ,
133 F.3d 1450 , 1452 -53 (Fed. Cir. 19 98). Therefore, we will not consider it
further except in connection with the appellant ’s hostile work environment claim.
See infra ¶ 35.
¶28 The appellant alleges that on October 16, 2013, the Deputy Director
charged her retroactively with 91 hours of AWOL, pursuant to the Director’s
orders , in retaliation for Disclosures /protecte d activity 1-3 and 5 .12 W-2 AF,
Tab 3 at 51 -52, Tab 5 at 4, Tab 41 at 5 -7, 10. The appellant asserts that the
Director and Deputy Director were aware o f these disclosures, including
11 All of the personnel actions the appellant alleges were taken, threatened, or not taken
in retaliation for her disclosures/protected activity occurred less than 2 years after the
disclosures. Accordingly, we need not discuss the “timing” aspect of the
knowledge/timing test with regard to each of the actions.
12 The appellant also alleges that Disclosure 4 was a contributing factor in her AWOL.
W-2 AF, Tab 41 at 10. However, because the appellant has failed to make a
nonfrivolous allegati on that Disclosure 4 was protected, we need not consider whether
it may have been a contributing factor in this or any other alleged personnel action.
The Director ended up sustaining most, but not all, of the AWOL. IAF, I -2, Tab 5
at 22.
17
Disclosure 3, which was made to the Inspector General. W-2 AF, Tab 41 at 5 -7,
10. The Board has found that a charge of AWOL is a decision concerning pay
and therefore constitutes a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(ix).
Mc Corcle v. Dep artment of Agriculture , 98 M.S.P.R. 363 , ¶ 16 (2005) . We find
that the appellant has made a nonfrivolous allegation, under the knowledge/timing
test, that Disclosures /protected activity 1-3 and 5 were a contributing factor in
this personnel action.
¶29 The appellant alleges that on October 16, 2013, the Deputy Director issued
her a proposed letter of reprimand for AWOL in retaliatio n for Disclosures 1 -3
and 5 , and the Director upheld the reprimand on February 3, 2014,13 in retaliation
for D isclosures /protected activity 1-8. W-2 AF, Tab 41 at 10 -11. We find that
the reprimand constituted a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(iii)
because the agency made it a part of the appellant ’s official personnel f ile and
informed her that it could be considered in any future disciplinary actions and
that she had the right to grieve it. Id. at 22 -23; see Rice v. Department of
Agriculture , 97 M.S.P.R. 501 , ¶ 15 (2004) . The proposed reprimand was a threat
to take a personnel action, and it is therefore also a personnel action covered
under the statute. Finally, w e also find that the appel lant made a nonfrivolous
allegation, under the knowledge/timing test, that Disclosures /protected activity
1-3 and 5 were a contributing factor in the proposed reprimand , and , since the
appellant alleges that the Director was aware of Disclosures /protected activity 1-3
and 5 -8, that these were a contributing factor in his decision to uphold and effect
the reprimand . W-2 AF, Tab 41 at 5 -7, 10.
¶30 The appellant alleges that on October 16, 2013, the Deputy Director
revoked her telework privileges on orders from t he Director, and that this was in
retaliation for Disclosures /protected activity 1-3 and 5. W-2 AF, Tab 5 at 7,
13 The Director appears to have actually issued the letter of reprimand on January 29,
2014. W -2 AF, Tab 5 at 22 -23.
18
Tab 41 at 10. The appellant also alleges that on March 24, 2014, the Director
denied her request to reinstate her telework in retaliation for
Disclosures /protected activity 1-8. W-2 AF, Tab 41 at 11 . The Board has found
that cancellation of a telework agreement can be a personnel action under
5 U.S.C. § 2302 (a)(2)(A)(xii) to the extent that it constitutes a significant change
in working conditions. Rumsey v. Department of Justice , 120 M.S.P.R. 259, ¶ 23
(2013) . We further find that the Director’s denial of the appellant’s request to
reinstate her telework privileges was also a personnel action, in that it was a
failure to approve a significant change in duties. 5 U.S.C. § § 2302 (b)(8) , (b)(9)
(prohibiting a failure to take a personnel action in retaliation for a protected
disclosure or protected activity ). The appellant has alleged that the Deputy
Director and Director were aware of the disclosures/protec ted ac tivity at issue
with respect to these actions, and w e therefore find that the appellant has made a
nonfrivolous allegation that Disclosures /protected activity 1-3 and 5 were a
contributing factor in th e revocation of the appellant’s approval to telew ork and
that D isclosures /protected activity 1-3 and 5 -8 were a contributing factor in the
denial of the request to reinstate telework .
¶31 The appellant alleges that on December 5, 2013, the Construction Team
Manager (her rating official) issued her a final rating for fiscal year 2013 of
“fully successful” with numerous negative comments. W-2 AF, Tab 41 at 10,
292-97. She further alleges that on January 16, 2014, the Director (h er reviewing
official) refused to revise the performance evaluation. W-2 AF, Tab 41 at 10 ,
Tab 46 at 14 -26. The appellant claims that these actions were in retaliation for
Disclosures /protected activity 1-3 and 5 -7. W-2 AF, Tab 41 at 10. The issuance
of a final performance evaluation is a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(viii). The appellant has alleged that either the Construction
Team Manager or the Director, or both, were awar e of the disclosures in question,
id. at 5 -8, 10, and we therefore find that she has made a nonfrivolous allegation,
19
under the knowledge/timing test, that they were a contributing factor in her final
performance evaluation .
¶32 The appellant contends that on June 1, 2014, the Director ordered her to
take on the duties of two full -time positions in retaliation for
Disclosures /protected activity 1-3 and 5 -8. Id. at 11. Specifically, it appears that
the appellant was previously responsible for supervising one t eam of six
contracting officials for the agency ’s Washington, D.C. VA Medical Center, and
on June 1, 2014, she became responsible for the Martinsburg, West Virginia VA
Medical Center as well, with an additional five contracting officials added to her
team. Id. at 76 -77, 87. On its face, this appears to represent a significant
increase in the appellant ’s workload, and we therefore find that she has made a
nonfrivolous allegation that the agency significantly changed her duties and
responsibilitie s—a person nel action under 5 U.S.C. § 2302 (a)(2)(A)(xii). As
noted above, the appellant has alleged that the Director was aware of
Disclosures /protected activity 1-3 and 5 -8, and thus, w e find that the appellant
has made a nonfrivolous allegation, under the knowledge/timing test, that these
disclosures /protected activity were a contributing factor in this alleged personnel
action. Id. at 5 -9.
¶33 The appellant alleges that , on June 24, 2014, the Deputy Dire ctor denied her
request for sick leave and charged her with 1 hour of AWOL in retaliation for
Disclosures /protected activity 1-3 and 5 -9. Id. at 11, 54 -55. However, i t appears
that the Deputy Director approved the request retroactively on July 28, 2014. Id.
at 51. Because the agency completely rescinded this personnel action before the
appellant filed her OSC complaint, we find that we lack jurisdiction to consider it
as a separate personnel action. W-2 AF, Tab 3 at 14, Tab 41 at 12. Cf.
Lachenmyer v. Federal Election Commission , 92 M.S.P.R. 80 , ¶ 7 (2002) .
Nevertheless, we find that this matter is still relevant for consideration in the
context of the appellant ’s claim of a hostile work environment , discussed below .
20
¶34 The appellant alleges that on September 24, 2014, the Director and Deputy
Director proposed to suspend her for 10 days in retaliation for
Disclosures /prot ected activity 1-3, 5-9, and 11.14 W-2 AF, Tab 41 at 11, 32 -43.
A proposed 10 -day suspension is a threatened personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(iii), and , since the appellant has alle ged that the Director or
Deputy Director, or both, were aware of the disclosures/protected activity she
raised with respect to this claim we find that the appellant made a nonfrivolous
allegation, under the knowledge/timing test, that Disclosures /protected activity
1-3, 5-9, and 11 were a contributing factor in the proposed suspension . Id. at 5 -9.
¶35 The appellant alleges that on December 16, 2014, the Director included a
negative memorandum and progress report in her fiscal year 2014 performance
evaluation in retaliation for Disclosures /protected activity 1-3, 5-9, and 11 -12.15
Id. at 11, 264 -76. This performance evaluation is a personnel action under
5 U.S.C. § 2302 (a)(2)(A)(viii), and as the appellant has alleged that the Director
was aware of the disclosures/protected activity , the appellant has made a
nonfrivolous allegation of contributing factor under the knowledge/timing test.
Id. at 5 -9.
¶36 Finally, the appellant alleges that the agency created a hostile work
environment in retaliation for her protected activity. W-2 AF, Tab 41 at 10 -11.
The Board has found that the creation of a hostile work environment may
constitute a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(xii) to the extent
that it represents a significant change in duties, responsibilities, or working
14 The appellant also alleges that Disclosure 10 was a contributing factor in the
proposed suspension . W-2 AF , Tab 41 at 11. However, becau se the appellant has
failed to make a nonfrivolous allegation that Disclosure 10 was protected, we need not
consider whether it may have been a contributing factor in this or any other alleged
personnel action.
15 To the extent that the appellant is claiming the progress report as a separate personnel
action, we find that it is not. W -2 AF, Tab 41 at 11; see King , 133 F.3d at 1452 -53.
21
conditions. Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 23 (2015) ,
overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 23 -25. To meet this standard, an agency’s actions must , “individually or
collectively, have practical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities .”
Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16. In determining
whether a hostile work environment is present, the Board will consider the
totality of the circumstances, including agency actions that may not individually
rise to the level of a personnel action. Id., ¶ 18.
¶37 In this case, the appellant claims that a hostile work environment was
created through the cumulativ e effect of numerous agency actions, including most
of the personnel actions discussed above, as well as various other actions ,
including verbal berating , an investigation into her computer usage, a change in
office space, exclusion from meetings, and excl usion from the agency’s student
loan repayment and tuition reimbursement programs. W-2 AF , Tab 41 at 10 -11.
We find that the appellant has made a nonfrivolous allegation that these
circumstances comprised a hostile work environment for purposes of a pers onnel
action under 5 U.S.C. § 2302 (a)(2)(A)(xii) . Moreover , because she alleges that
the individuals in her chain of command were aware of her disclosures/protected
activity and took, threatened, or failed to take the actions that created the hostile
work environment, we find that she also has made a nonfrivolous allegation of
contributing factor under the knowledge/timing test. Id. at 5 -9.
Exhaustion
¶38 The appellant filed her OSC complaint on July 16, 2014, and supplemented
it with amendments and additional information several times over the ensuing
18 months. W-2 AF, Tab 3 at 39 -121, Tab 41 at 12 -327, Tabs 42 -46. We find
that she raised before OSC all of the disclosures /protected activity and personnel
actions that she now raises in this IRA appeal, and she provided OSC with a
sufficient basis to pursue an investigation. W-2 AF, Tab 3 at 39 -121, Tab 41
22
at 12-327, Tabs 42 -46; see Chambers v. Department of Homeland Security ,
2022 MSPB 8 , ¶ 10. The record also contains a copy of OSC’s February 1, 2016
close -out letter, informing the appellant that it was closing its investigation into
her complaint and notifying her of her right to file an IRA appeal with the Board .
W-2 AF, Tab 10 at 5 -6. We therefore find that the appellant has proven by
preponderant evidence that she exhausted her administ rative remedies.
Conclusion
¶39 For the reasons explained above, we find that the appellant has exhausted
her administrative remedies and made nonfrivolous allegations that the agency
subjected her to numerous personnel actions in retaliation for a number of
protected disclosures and for her communications with the Inspector General,
which were protected activity . Therefore, she has established jurisdiction over
her appeal and is entitled to the merits hearing she requested. See Salerno ,
123 M.S.P.R. 230 , ¶ 5.
¶40 The issues on remand will include whether the appellant can prove by
preponderant evidence that Disclosures /protected activity 1-3, 5 -9, and 11 -12
were protected under the statute . The appellant also will need to show that she
did, in fact, suffer the nine personnel actions discussed above, and that her
disclosures /protected activity were a contributing factor therein. If the ap pellant
proves her case, then the agency will have the opportunity to prove by clear and
convincing evidence that it would have taken the same personnel actions
notwithstanding the protected activity. Id.
23
ORDER
¶41 For the reasons discussed above, we remand this case to t he Washington
Regional O ffice for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_TAMARA_DC_1221_16_0475_W_2_REMAND_ORDER_2067176.pdf | 2023-09-08 | null | DC-1221 | NP |
2,720 | https://www.mspb.gov/decisions/nonprecedential/HENDY_DAVID_M_CH_3330_20_0150_I_1_FINAL_ORDER_2067214.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID M. HENDY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
CH-3330 -20-0150 -I-1
CH-4324 -20-0228 -I-1
DATE: September 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin S. Besetzny , Esquire, Chicago, Illinois, for the appellant.
Grant T. Swinger , Esquire, and Stephanie Macht , Esquire, Hines, Illinois,
for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed petition s for review of the initial decision s, which
denied his requests for corrective action under the Veterans Employment
Opportunities Act and the Uniformed Services Employment and Reemployment
Rights Act . We have JOINED these appeals on review because we hav e
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
determined that doing so will expedite processing of the cases and will not
adversely affect the interests of the parties. 5 C.F.R. § 1201.36 (a)(2), (b). In his
petition s for review, the appellant argues that the administrative judge erred in
finding that he did not establish his right to corrective action under both statutory
provisions . Generally, we grant petitions such as th ese only in the following
circumstances: the initial dec ision s contain erroneous findings of material fact;
the initial decision s are based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case s; the
administrative judge’s rulings during either the course of the appeal s or the initial
decision s were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case s; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record s closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
cons idering the filings in these appeal s, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition s for review.
Therefore, we DENY the petition s for review and AFFIRM the initial decision s,
which are now t he Board’s final decision s. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offe r the following summary of available appeal rights, the Merit
Systems Protection 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.
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 r eview with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the c ourt’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information r egarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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 di scrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calenda r days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) a nd 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you re ceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative 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 rev iew 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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HENDY_DAVID_M_CH_3330_20_0150_I_1_FINAL_ORDER_2067214.pdf | 2023-09-08 | null | S | NP |
2,721 | https://www.mspb.gov/decisions/nonprecedential/BRINSON_LEAMON_D_DC_0752_14_1129_B_1_ORDER_2067249.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEAMON D. BRINSON,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -14-1129 -B-1
DATE: September 8, 2023
Steve M. Fesler , Sykesville, Maryland, for the appellant.
Ray Goldstein and Nikki Greenberg , Washington Naval Yard , D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Vice Chairman Harris issues a separate opinion.
Member Limon issues a separate opinion.
ORDER
¶1 The appellant has filed a petition for review which sustained his removal for
misconduct . The two Board members cannot agree on the disposition of the
petition for review. Therefore, the initial decision now becomes the final
decision of the Merit Systems Protection Board in this appeal. Title 5 of the
Code of Federal Regulations, section 1200.3(b) ( 5 C.F.R. § 1200.3 (b)). This
decision shall not be considered as precedent by the Board in any other case.
5 C.F.R. § 1200.3 (d).
2
NOTICE OF APPEAL RIG HTS1
You may obtain review of the final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable ti me
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular for um is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U. S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petit ion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. 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 informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 re view of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of the final decision —including a disposition of your
discrimination claims —by filing a civil action with an appropriate U.S. district
court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit
Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in
this case, and your representative receives this decision before you do, then you
must file w ith the district court no later than 30 calendar days after your
representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
4
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
5
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.2 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decisi on.
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 addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of com petent 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.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
SEPARATE OPINION OF VICE CHAIRMAN CATHY A. HARRIS
in
Leamon D. Brinson v. Department of the Navy
MSPB Docket No. DC -0752 -14-1129 -B-1
¶1 For the reasons discussed below, I would grant the appellant’s petition for
review, reverse the initial decision, and not sustain his removal.
¶2 The appellant was a WG -11 Electronic Industrial Controls Mechanic whom
the agency suspended for 30 days on charges of insubordination and disrespectful
conduct. Brinson v. Department of the Navy , MSPB Docket No. DC-0752 -14-
0424 -I-1, Appeal File (0424 AF), Tab 1 at 7 -10. The appellant filed a Board
appeal and raised some affirmative defenses, including an affirmative defense of
age discrimination. 0424 AF, Tab 1 at 2, Tab 5 at 3, Tab 19 at 2. During
discovery in those proceedings, the appellant, proceeding pro se, deposed his
fifth -level supervisor, a Navy Commander and Public Works Officer. 0424 AF,
Tab 4 at 3; Brinson v. Department of the Army , MSPB Docket No. DC-0752-14-
1129 -I-1, Initial Appeal File (IAF), Ta b 1 at 27-37. During the deposition
questioning, the appellant called the Commander “a snake” and “an outright liar,”
and he suggested that the Commander had “short man syndrome” or “little man
syndrome.” IAF, Tab 10 at 33 -34, 36.
¶3 While the suspension ap peal was still pending, the agency proposed to
remove the appellant for his conduct during the Commander’s deposition.1 Id.
at 23-26. The proposal was based on a charge of disrespectful conduct, with three
specifications, referring to the “snake,” “outri ght liar,” and “little man” comments
respectively. Id. at 23 -24. The deciding official sustained the charge and
removed the appellant effective August 27, 2014. Id. at 4-10.
1 The administrative judge ultimately affirmed the suspension in an initial decision that
became final when neither party petition ed for review. 0424 AF, Tab 23.
2
¶4 The appellant filed the instant Board appeal, arguing among other things
that t he agency was not permitted to remove him for conduct in which he engaged
during the course of protected activity. IAF, Tab 1 at 6, Tab 15 at 5, Tab 20
at 6-11. After the close of the record, the administrative judge issued an initial
decision sustaining the removal. IAF, Tab 25, Initial Decision (ID). He analyzed
the appellant’s argument in the context of the charge and found that the appellant
was not immunized from discipline for his disrespectful conduct merely because
he committed it during litigat ion before the Board. ID at 5 -10.
¶5 The appellant petitioned for review, and the Board remanded the appeal for
the administrative judge to adjudicate the appellant’s argument as an affirmative
defense under 5 U.S.C. § 2302 (b)(9)(A)(ii) (reprisal for the exercise of appeal
rights other than with regard to whistleblower reprisal). Brinson v. Department of
the Navy , MSPB Docket No. DC -0752 -14-1129 -I-1, Petition for Review File,
Tab 1, Tab 6 (Remand Order). On remand, consistent with the Board’s
instructions, the administrative judge advised the appellant of his burden of
proving this affirmative defense under the standard set forth in Warren v.
Department of the Army , 804 F.2d 654 , 656 -58 (Fed. Cir. 1986). Brinson v.
Department of the Army , MSPB Docket No.DC -0752 -14-1129 -B-1, Remand File
(RF), Tab 3 at 2. After the close of the record, the administrative judge issued a
new initial decision again sustaining the removal. RF, Tab 20, Remand Initial
Decision (RID). The administrative judge found that the appellant failed to prove
his affirmative defense of retalia tion under 5 U.S.C. § 2302 (b)(9)(A)(ii), and he
incorporated the remainder of his findings from the previous initial decision. RID
at 6-11.
¶6 The appellant has filed a petition for review, disputing the administrative
judge’s analysis of his retaliation claim and making several additional arguments
about the proceedings on remand. Brinson v. Department of the Army , MSPB
Docket No.DC -0752 -14-1129 -B-1, Remand Petition for Review (RPFR) File,
Tab 1. T he agency has filed a response. RPFR File, Tab 3.
3
¶7 In its Remand Order, the Board identified 5 U.S.C. § 2302 (b)(9)(A)(ii) as
the relevant clause under which to consider the appellant’s affirmative defense of
retaliation for his prior Board appeal. Remand Order, ¶¶ 10, 13 -17. This was
incorrect. As stated above, the appellant’s suspension appeal contained an
affirmative defense of age discrimination under 5 U.S.C. § 2302 (b)(1)(B).
Therefore, his prior Board appeal was protected under that clause, and a claim of
retaliation for filing that appeal is subject to the standards of 29 U .S.C. § 633a .
See Gomez -Perez v. Potter , 553 U.S. 474 , 491 (2008 ) (holding that 29 U. S.C.
§ 633a (a) prohibits retaliation against a Federal employee who complains of age
discrimination); Jones v. Department of Energy , 120 M.S.P.R. 480 , ¶ 3 n.2 (2013)
(stating that a claim of retaliation for equal employment opportunity (EEO)
activity is cognizable under 5 U.S.C. § 2302 (b)(1)) , aff’d , 589 F. App’x 972 (Fed.
Cir. 2014) ; Davis v. Department of Housing and Urban Development , EEOC
Appeal No. 01903228 , 1990 WL 1109796 (Dec. 7, 1990) (holding that a
mixed -case Board appeal with claims of discrimination under Title VII
constituted protected activity for purposes of a Title VII reprisal claim); see also
29 C.F.R. § 1614.101 (b) (providing that no person shall be subject to retaliation
for participating in any stage of administrative proceedings und er the Age
Discrimination in Employment Act (ADEA)). To prove a claim of retaliation
under the ADEA, an appellant must show that his protected activity was a
motivating factor in the agency’s action, although he may only be entitled to full
relief if his protected activity was also a but -for cause of that action. Babb v.
Wilkie , 140 S. Ct. 1168 , 1173 -74, 1177 -78 (2020); Pridgen v. Office of
Management and Bud get, 2022 MSPB 31 , ¶¶ 21-22.
¶8 Although neither party has specifically briefed this issue, the record is fully
developed, the mat erial facts are not in dispute, and the outcome required under
the law is clear. Therefore, in the interests of administrative efficiency, it would
be appropriate to make a ruling on the matter at this time. See Warren v.
Department of Defense , 87 M.S.P.R. 426 , ¶ 9 (2001).
4
¶9 The Equal Employment Opportunity Commission (EEOC) has taken the
position that participation in EEO a ctivity, including participation in claims of
age discrimination under the ADEA, enjoys broad protection, and that such
protection is not limited by the content or manner of the participation. EEOC
Enforcement Guidance on Retaliation and Related Issues , Notice 915.004 ,
2016 WL 4688886 , at *5 -*7 (Aug. 25, 2016) (Enforcement Guidance). N othing
in the statute limits protections to participation conducted in a certain manner.
See 29 U.S.C. § 633a (a) (providing that Federal employment “shall be made free
from any discrimination based on age”); cf. 29 U.S.C. § 623 (d) (prohibiting
retaliation against private sector employees who have participate d in ADEA
proceedings “in any manner”). The EEOC agrees with the several circuits that
have held that an employer is prohibited from disciplining an employee for
bringing even a false or malicious charge of discrimination or from engaging in
unreasonable conduct during the course of such proceedings.2 Id.; Jazmine F. v.
Department of Defense , EEOC Petition No. 0320170007 , 2023 WL 4653604 ,
at *6-*7 (July 5, 2023); Verrett v. U.S. Postal Service , EEOC Appeal
No. 01841488 , 1985 WL 569353 (Nov. 13, 1985); see, e.g. , Glover v. South
Carolina Law Enforcement Division , 170 F.3d 411 , 414 (4th Cir. 1999 ); Merritt v.
Dillard Paper Co ., 120 F.3d 1181 , 1186 -87 (11th Cir. 1997); Sias v. City
Demonstration Agency , 588 F.2d 692 , 695 (9th Cir. 1978) ; Pettway v. American
Cast Iron Pipe Co. , 411 F.2d 998 , 1007 -08 (5th Cir. 1969). The B oard must defer
to the EEOC on this matter of substantive discrimination law. See Pridgen ,
2022 MSPB 31 , ¶ 40. The appellant’ s conduct toward the Commander during the
deposition may have been disrespectful, but this does not remove his conduct
2 The U.S. Courts of Appeal for the Seventh and Eighth Circuits have rejected the
EEOC’s position on this issue. E.g., Gilooly v. Missouri Depar tment of Health and
Senior Serv ices, 421 F.3d 734 , 740 (8th Cir. 2005) ; Matson v. Caterpillar, Inc. ,
359 F.3d 885 (7th Cir. 2004). Notwithstanding this circuit split, the Board is obliged to
follow the EEOC on this matter of substantive discrimination law. Pridgen ,
2022 MSPB 31 , ¶ 40.
5
from the broad protections of the statute.3 We must be mindful that attacks on the
credibility of a witness a re an essential aspect of c ross examination, are at times
necessary to prove pretext in discrimination and retaliation cases, and are a part
of our adversarial adjudication process. Although there may be more elegant or
effective ways to do so than directly calling a witness a “liar,” the statute still
protects such activity in this context. Furthermore, parties must be permitted to
develop their theories of the case and pursue their own litigation strategies. This
is particularly true for pro se appellants, to whom the Board gene rally affords a
measure of latitude in conducting their appeals.
¶10 The Member would find that the appellant’s statements were not “a
legitimate exercise of his right to vigorously cross examine a witness.”
Member’s Separate Opinion, ¶ 8. However, judgmen ts about the motives of an
appellant’s actions have no place in participation clause jurisprudence. See
Glover , 170 F.3d at 414 -16; Jarvis M. v. Department of Health and Human
Services , EEOC Petition No. 0320170006, 2023 WL 4653539 , at * 4 (July 5,
2023) . The Member also cites to several cases for the proposition that an
employer may discipline an employee for the manner in which he conducts
protected activity. Member’s Separate Opinion, ¶ 10. However, I am not
persuaded that any of this case law would s upport the imposition of discipline
against this appellant. These are mainly opposition clause cases. Rollins v. State
of Fla. Department of Law Enforcement , 868 F.2d 397 (11th Cir. 1989);
Pendleton v. Rumsfeld , 628 F.2d 102 (D.C. Cir. 1980) ; Rosser v. Laborers’ Int’ l
Union Local No. 438 , 616 F.2d 221 (5th Cir. 1980); Hochstadt v. Worcester
Foundation for Experimental Biology , 545 F.2d 222 (1st Cir. 1976). Unlike
3 Although the protections afforded by the anti -retaliation laws administered by the
EEOC are “exceptionally broad,” Pettway , 411 F.2d at 1006 n.18, the EEOC has not
held that they are without limit. For instance, we are aware of no case in which the
EEOC or any court has found that an employer was prohibited from taking a personnel
action against an employee who made threats or committed acts of violence during the
course of EEO proceedings.
6
activity protected under the participation clause, activity protected under the
opposition clause must be conducted in a “reasonable” manner. Netter v. Barnes ,
908 F.3d 932 , 93 7-38 (4th Cir. 2018) ; Johnson v. Frost , EEOC Appeal
No. 11980023 , 2001 WL 1353704 , at *6 (June 28, 2001). Of the two
participation clause cases, one of them concerns the discipline of an EEO
manager for the manner in which he advanced a charge of discrimination.
Whatley v. Metropolitan Atlanta Rapid Transit Authority , 632 F.2d 1325 (5th Cir.
1980) . Whatley presents a unique situation not present here, in which
participation and job duties overlap. Notwithstanding the broad sweep of the
participation clause, I would not support an interpretation of the law that would
insulate an EEO specialist from discipline for malfeasance in office, but that does
not change my opinion about how the participation clause should apply to the
facts of the instant appeal. In the other participation clause case, the Board
upheld an appellant’s removal for unlawfully accessing and disclosing employee
records to support his discrimination complaint. Williams v. Social Security
Administration , 101 M.S.P.R. 587 , ¶ 13 (2006). I agree that unlawful conduct is
not protected by the ADEA, see Netter , 908 F.3d at 939, but discou rtesy toward a
deponent is not unlawful. As far as I can tell, among jurisdictions that have
adopted the Pettway rule, there is no precedent closely resembling the situation
with which the Board is presented here, i.e. , disrespectful behavior by a litigan t in
the context of pro se representation. The Member and I have, I believe, both
approached this issue correctly by extrapolating from the general principles set
forth in the statutes, case law, and official guidance. Nevertheless, we cannot
reconcile o ur judgment on the ultimate question of how those principles should
apply to these particular facts.
¶11 To be clear, I do not condone disrespectful behavior by a party or his
representative towards any witness in a Board appeal, whether the appeal involves
a claim of discrimination or not. However, as the EEOC observes, misconduct
during the course of legal proceedings is normally addressed within the context of
7
those proceedings by the tribunal under whose authority the proceedings are
being conducted. E nforcement Guidance, 2016 WL 4688886 , at *6. In a Board
appeal, consequences for misbehavior by a party or representative include adverse
rulings and sanctions, up to and including dismissal of the appeal. See 5 C.F.R.
§ 1201.43 . In this case, the agency’s representative acted appropriately by
objecting to the manner of the appellant’s questioning and ultimately
threatening to halt the deposition if the appellant continued in this way. IAF,
Tab 10 at 33-34, 36. As the agency did not move for sanctions, this was
apparently sufficient to resolve the issue, and that should have been the end of it.
The agency’s decision to continue the dispute outside the courtroom by taking an
adverse e mployment action against the appellant was per se retaliation under
29 U.S.C. § 633a (a), which is a prohibited personnel practice under 5 U.S.C.
§ 2302 (b)(1). See Pettway , 411 F.2d at 1007 -08; Verrett , 1985 WL 569353 , at *5.
By the very terms of the agency’s decision letter, the appellant’s protected
activity was a but -for cause of his removal. IAF, Tab 10 at 4-10. For these
reasons, I would not sustain the action.4 See 5 U.S.C. § 7701 (c)(2)(B).
/s/
Cathy A. Harris
Vice Chairman
4 Having decided the appeal on these grounds, I would not reach the remainder of the
appellant’s arguments on review.
SEPARATE OPINION OF MEMBER RAYMOND A. LIMON
in
Leamon D. Brinson v. Department of the Navy
MSPB Docket No. DC -0752 -14-1129 -B-1
¶1 For the reasons explained below, I agree with the administrative judge’s
initial decision that sustained the appellant’s removal and found that he failed to
prove his affirmative defense s, and I would deny his petition for review.
¶2 The appellant was employed as an Electronics Industrial Controls
Mechanic, WG -2606 -11, working for the agency’s Naval Facilities Engineering
Command (NAVFAC) Washington in Dahlgren, Virginia. He worked at the
after-hours trouble desk for the agency’s Public Works Department , where he
responded to requests for maintenance assistance from civilian and military
personnel l ocated at the South Potomac installations in Indian Head, Maryland
and Dahlgren, Virginia .
¶3 Effective February 1, 2014, the agency suspended the appellant for 30 days
based on three charges of misconduct. The charges included seven specifications
of Disrespectful Conduct toward the Commander of NAVFAC Washington’s
South Potomac division, the appe llant’s fifth -line supervisor, and two
specifications of Insubordination for willfully and intentionally refusing to obey
the Commander’s orders. Brinson v. Department of the Navy , MSPB Docket
No. DC-0752 -14-0424 -I-1, Appeal File (0424 AF), Tab 8 at 24-28, 37-43. The
appellant filed a Board appeal, pro se, and raised several affirmative defenses,
including age discrimination. 0424 AF, Tab 1 5 at 4, Tab 1 9 at 5. While
conducting discovery during the appeal , the appellant deposed the Commander. It
is undi sputed that, d uring the deposition questioning, the appellant called the
Commander “a snake” and “an outright liar,” and he posed questions suggest ing
that the Commander had “short man syndrome” or “little man syndrome.”
2
Brinson v. Department of the Navy , MSPB Docket No. DC -0752 -14-1129 -I-1,
Initial Appeal File ( IAF), Tab 10 at 33 -34, 36.
¶4 The agency proposed to remove the appellant for his conduct during the
Commander’s deposition. Id. at 23 -26. The pro posal was based on a charge of
Disrespectful Conduct for making the specific comments during the deposition
noted above. The deciding official sustained the charge and removed the
appellant effective August 27, 2014. Id. at 4-10. The appellant filed the instant
Board appeal arguing that the agency was no t permitted to remove him for
conduct in which he engaged during the course of protected activity. IAF, Tab 1
at 6, Tab 15 at 5, Tab 20 at 6 -11. After the close of the record, the administrative
judge issued an initial decision sustaining the removal. IAF, Tab 25, Initial
Decision (ID). He found that the appellant was not immunized from discipline
for his disrespectful conduct merely because he committed it during litigation
before the Board. ID at 5 -10.
¶5 The appellant petitioned for review and the Boa rd remanded the appeal ,
finding that the administrative judge must adjudicate the appellant’s argument
that he could not be disciplined for conduct that occurred during protected
activity as an affirmative defense under 5 U.S.C. § 2302 (b)(9)(A)(ii) (reprisal for
the exercise of appeal rights other than with regard to whistleblower reprisal).
Brinson v. Department of the Navy , MSPB Docket No. DC -0752 -14-1129 -I-1,
Petition for Review File, Tab 1, Tab 6 (Remand Order). On remand, consistent
with the Board’s instructions, the administrative judge advised the appellant of
his burden of proving this affirmative defense under the standard set forth in
Warren v. Department of the Army , 804 F.2d 654 , 656 -58 (Fed. Cir. 1986).
Brinson v. Department of the Army , MSPB Docket No. DC-0752 -14-1129 -B-1,
Remand File (RF), Tab 3 at 2. After the close of the record, the administrative
judge issued a new initial decision , again sustaining the removal. RF, Tab 20,
Remand Initial Decision (RID). The administrative judge found that the appellant
failed to prove his affirmative defense of retaliation under 5 U.S.C.
3
§ 2302 (b)(9)(A)(ii), and he incorporated the remainder of his findings from the
previous initial decision. RID at 6 -11.
¶6 In his petition for review of the new initial decision, the appellant as serts
that the administrative judge erred in ruling that he could be removed for his
comments made while engaging in protected activity. Brinson v. Department of
the Army , MSPB Docket No. DC-0752 -14-1129 -B-1, Remand Petition for Review
(RPFR) File, Tab 1.1 The agency has filed a response to the petition . RPFR File,
Tab 3.
¶7 First, for the reasons stated in the Vice Chairman’s separate opinion, I agree
that the appellant’s allegation that the agency’s removal action was taken in
retaliation for his prior Bo ard appeal should have been adjudicated as a claim of
retaliation for raising age discrimination. Accordingly, in order to obtain full
relief for a claim of retaliation for protected activity under the Age
Discrimination in Employment Act, the appellant m ust show that the protected
activity was a but -for cause of the removal action. Pridgen v. Office of
Management and Budget , 2022 MSPB 31 , ¶¶ 21 -22.
¶8 I further agree with the Vice Chairman that participation in claims arising
under employment discrimination statutes generally enjoys broad protection, and
that employees engaging in such protected activity must be allowed leeway for
robust advocacy, including a full and fair opportunity to challenge the credibility
of witnesses. Nonetheless, I am not convinced that under the facts of this case
the appellant’s conduct during his deposition of the Commander falls within this
broad prot ection, nor do I believe the charged conduct can be characterized as a
legitimate exercise of his right to vigorously cross examine a witness while
1 The appellant also makes several other arguments in his petition, including that the
administrative judge fail ed to rule on his motion to enter into evidence the Board’s
record from his appeal of the 30 -day suspension and that the administrative judge was
biased against him. RPFR File, Tab 1. I have considered these arguments and would
find that they provide no basis to disturb the Remand Initial Decision.
4
prosecuting his appeal. In this regard, I would find that the conduct at issue in
this case, including call ing him a “snake” or suggesting that the Commander had
“short man sy ndrome” or “little man syndrome, ” was not protected by any
anti-discrimination or anti -retaliation statute.
¶9 As pointed out by the Vice Chairman, the Equal Employment Opportunity
Commission (EEOC) has not held that the protections afforded by the
anti-retaliation laws it administers are without limit . Moreover, the courts have
recognized that misconduct committe d during litigation alleging employment
discrimination is not protected under the anti -retaliation laws despite the fact that
it occurred while the employee was engaging in protected activity. In Benes v.
A.B. Data, Ltd. , 724 F.3d 752 , 753 -54 (7 th Cir. 2013), for example, the plaintiff
alleged that his firing was in retaliation for his prior sex discrimination claim
because the action was based on his behavior during an EEOC -arranged
mediation session. The court rejected this argument, finding that participation in
protected activity “doesn’t insulate an employee from being discharged for
conduct that, if it occurred outside [that activity], would warrant termination.”
Id. at 754 (citing Hatmaker v. Memorial Medical Center , 619 F.3d 741 , 745 (7 th
Cir. 2010)).
¶10 In Whatley v. Metropolitan Atlanta Rapid Transit Authority , 632 F.2d 1325 ,
1328 -29 (5 th Cir. 1980), the plaintiff alleged that he was asked to resign from his
Equal Opport unity Compliance Officer position in retaliation for his protected
activity, which consisted of filing a charge of discrimination with the Federal
agency funding the defendant’s operations on behalf of a n employee of the
defendant.2 The court affirmed the trial court’s determination that the defendant
had articulated a valid business reason for the action, i.e., that the action was
based on the manner in which the plaintiff had handled the discrimination
2 The plaintiff’s supervisor had instructed him to inform the employee that she could
file a discrimination claim with the EEOC or mail it to the funding agency. Whatley ,
632 F.2d at 1327.
5
complaint and not the fact that he had processed it. Id. The court concluded that
the plaintiff’s conduct was not protected from consequence by the anti -retaliation
laws. Id. at 1329. A number of other circuit court and Board decisions stand for
the same proposition. See, e.g. , Rosser v. Laborers ’ Int’l Union Local No. 438 ,
616 F.2d 221 , 223 (5th Cir. 1980 ); Rollins v. State of Fla. Dep artment of Law
Enforcement , 868 F.2d 397 , 401 (11 th Cir. 1989); Pendleton v. Rumsfeld ,
628 F.2d 102 , 108 (D.C. Cir. 1980); Hochstadt v. Worcester Found ation for
Experimental Biology , 545 F.2d 222 , 231 (1st Cir. 1976). See also Williams v.
Social Security Administration , 101 M.S.P.R. 587 , ¶ 13 (2006) (finding that the
anti-retaliation provisions of Title VII do not shield an employee from discipline
for improperly obtaining and disclosing confidential documents for use in an
EEOC proceeding); Bonanova v. Department of Education , 49 M.S.P.R. 294 , 300
(1991) (stating that not all conduct related to an employee’s opposition to
discrimination is immune from discipline).
¶11 I believe that the type of conduct at issue in this case, name -calling and
goading of a management official, similarly falls outside of the statutory
protections. I agree with the administrative judge’s determination that the
appellant is not immune from discipline simply because his transgressions
occurred while he was examining t he Commander during a deposition. The
administrative judge gave careful and thorough consideration to the evidence
bearing on the appellant’s retaliation claim and made appropriate credibility
determinations, and I agree with his finding that the appellan t failed to refute the
evidence that the removal action was taken because of the charged conduct, and
not because it was committed while the appellant was participating in protected
activity. Although the administrative judge analyzed the retaliation clai m under
the Warren test, instead of considering it under the but -for standard set out in
Pridgen , his conclusion that the appellant failed to show that the agency removed
him because of his participation in protected activity is fully supported by the
6
record, and I would find that he failed to show that his protected activity was a
but-for cause of the agency’s action.
¶12 For the reasons stated above, I would affirm the initial decision, sustain the
appellant’s removal, and deny his affirmative defenses.
/s/
Raymond A. Limon
Member | BRINSON_LEAMON_D_DC_0752_14_1129_B_1_ORDER_2067249.pdf | 2023-09-08 | null | DC-0752 | NP |
2,722 | https://www.mspb.gov/decisions/nonprecedential/SWISHER_TONYA_CH_0714_19_0126_I_1_FINAL_ORDER_2067260.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TONYA SWISHER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0714 -19-0126 -I-1
DATE: September 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Duwel , Esquire, Dayton, Ohio, for the appellant.
Demetrious A. Harris , Esquire, Dayton, Ohio, for the agency.
Amber Groghan , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon , Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency’s removal action . 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 determi ned does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 requ ired procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed . Title 5
of the Code of Federal Regulation s, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not establ ished any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, e xcept as expressly MODIFIED to clarify that the doctrine of res ipsa
loquitur is inapplicable to the facts of this case and that the agency failed to prove
by substantial evidence its charge of negligence because it did not put forth any
evidence demonstrating the standard of care that the appellant was to exercise or
that the appellan t failed to exercise reasonable care in this matter .
BACKGROUND
¶2 On November 5, 2018, the agency proposed the removal of the appellant,
formerly a Pharmacy Technic ian in the Pharmacy Service of the Dayton Veterans
Affairs Medical Center , pursuant to 38 U.S.C. § 714. Initial Appeal File (IAF),
Tab 8 at 15 -17. The agency charged the appel lant with: (1) negligence,
(2) failure to safeguard a confidential matter, and (3) a Health Insurance
Portabilit y and Accountability Act privacy rule violation, all of which stemmed
from the loss of one bag of medication that the appellant was responsible for
delivering to an agency facility. Id. at 15 -16. The appellant submitted written
and oral replies to the pr oposed removal, and on November 26, 2018, the agency
issued a decision sustaining the charges and removing the appellant effective
December 7, 2018. Id. at 9-11, 13 -14. The appellant timely filed an appeal and
3
requeste d a hearing; she alleged that her re moval was unwarranted because she
had correctly followed procedure, she had excellent performance reviews and no
record of discipline , and she suspected that her termination was linked to her
request for leave protected under the Family and Medical Leav e Act (FMLA).2
IAF, Tab 1 at 5, 11.
¶3 After holding the requested hearing, the administrative judge issued an
initial decision reversing the agency’s removal action. IAF, Tab 27, Initial
Decision (ID). The administrative judge merged the agency’s three charg es and
found that the agency had not proven its charge by substantial evidence because
the agency had no policies that dictated how the appellant was to treat the bags of
medication she was to deliver and that the appellant followed any agency
procedures in place to safeguard the medication bags and patient s’ protected
health information . ID at 4 n.1, 6 -10. The administrative judge also found that ,
after the medication bag went missing, an individual had taken medication from
the missi ng bag, which served to act as an intervening event such that the
appellant was not responsible for the loss of the medication. ID at 10. Finally,
the administrative judge observed that the agency had strengthened its procedures
for safeguarding medicati on bags after this incident, and that other employees
who had lost medication bags were not removed by the agency . ID at 10. She
found that the agency did not show by substantial evidence that the appellant had
departed from the conduct expected of a rea sonably prudent person acting under
similar circumstances and thus did not prove that the appellant was negligent , nor
did it show that the appellant had failed to safeguard protected health information
as a result of the alleged negligence. ID at 11. Ac cordingly, she reversed the
removal. Id.
¶4 The agency has filed a petition for review in which it argues that the
administrative judge erred by: (1) merging the agency’s charges; (2) crediting the
2 The appellant did not subsequently advance an affirmative defense of reprisal for
requesting leave protected under the FMLA. See IAF, Tabs 13 -14, 17.
4
appellant’s testimony that there were many individuals near by at the time the
medication went missing ; (3) finding that other employees had similarly lost
medications but were not removed; (4) finding that there was no established
policy or procedure for delivering the medications in question ; and (5) using the
agency’s subsequent remedial measures to support the conclusion that the
underlying policy was flawed. Petition for Review (PFR) File, Tab 1 at 6 n.3, 7 -9
& 9 n.4. The agency also renews its argument that it proved by substantial
evidence its charge of neg ligence under the theory of res ipsa loquitur . Id.
at 9-13.
DISCUSSION OF ARGUME NTS ON REVIEW
We decline to apply res ipsa loquitur to the facts of the instant case .
¶5 To prove negligence, the agency must show a failure to exercise the degree
of care required under the particular circumstances, which a person of ordinary
prudence in the same situation and with equal experience would not omit.
Thomas v. Department of Tra nsportation , 110 M.S.P.R. 176 , ¶ 9 (2008), aff’d ,
330 F. App’x 920 (Fed. Cir. 2009). The agency must establish the applicable
standar d of care through agency policy or other factors, such as training,
knowledge, customary agency practice, and adequacy of agency procedures.
Mendez v. Department of the Treasury , 88 M.S.P.R. 596 , ¶ 26 (2001). The
question of whether the appellant breached the standard of care is an objective
inquiry, not based on the appellant’s personal belief as to the adequacy of her
performance. Id.
¶6 The agency established that , as a Pharmacy Technician, the appellant was
responsible for delivering medication from the pharmacy to several designated
locations at the facility, from which nurses dispense medication to patients. IAF,
Tab 8 at 58 -62, Tab 24, Hearing Record ing (HR) (testimony of the appellant).
The agency also established that, as part of her duties, the appellant was
responsible for protecting confidential patient health information. IAF, Tab 8
5
at 22, 58 -62, 90 -93, HR (testimony of t he appellant’s first -level supervisor ).
Despite calling three of the appellant’s supervisors as witnesses, however, the
agency failed to provide any testimony or documentary evidence as to the
standard of care that a reasonably prudent agency Pharmacy Tec hnician with the
appellant’s experience was to take in delivering medication and protecting patient
health information, or that the appellant failed to meet that standard of care.
Rather, the agency asserted that it had proved the charge of negligence by
substantial evidence on the basis of the doctrine of res ipsa loquitur , arguing that
the fact that the appellant was in sole possession of the medication bag and lost
the bag showed that she was negligent in handling the bag. IAF, Tab 25 at 7 -9.
¶7 On revi ew, the agency reiterates its argument that it has proved its charge
under the doctrine of res ipsa loquitur . PFR File, Tab 1 at 11 -13. In a traditional
negligence action, a plaintiff must identify specific actions or omissions by the
defendant and “must point to a particular way in which that conduct could have
been made safer.” Freudeman v. Landing of Canton , 702 F.3d 318 , 325 (6th Cir.
2012) (quoting Dan B. Dobbs et al., Dobbs’ Law of Torts § 168 (2d ed. 2012)).3
If the plaintiff cannot point to specific actions, she can sometimes evoke the
doctrine of res ipsa loquitur , which is an evidentiary rule that permits, but doe s
not require, a fact -finder to draw an inference of negligence from circumstantial
evidence. Id. The application of res ipsa loquitur generally is controlled by state
law. See id . The events in this case occurred in Ohio, which requires that two
prere quisites are met prior to applying the doctrine. Id. First, the instrumentality
causing the plaintiff’s injury must have been under the defendant’s “exclusive
management and control.” Id. (quoting Estate of Hall v. Akron General Medical
3 While decisions of the U.S. Court of Appeals for the Federal Circuit are controlling
authority for the Board, in most circumstances, including those present in this appeal,
the decisions of the other Federal courts of appeals are considered persuasive, but not
controlling, authority. Morris v. Department of the Navy , 123 M.S.P.R. 662 , ¶ 15 n.12
(2016); see Fairall v. Veterans Administration , 33 M.S.P.R. 33 , 39, aff’d , 844 F.2d 775
(Fed. Cir. 1987).
6
Center , 927 N.E.2d 1112 , 1118 (Ohio 2010) ). Second, the injury must have
“occurred under such circumstances that in the ordinary course of events it would
not have occurred if ordinary car e had been observed.” Id. (citations omitted).
However, “[w]here it has been shown by the evidence adduced that there are two
equally efficient and probable causes of the injury, one of which is not
attributable to the negligence of the defendant, the [d octrine] does not apply.” Id.
(citations omitted) . The Supreme Court of the United States has explained that
the rule of res ipsa loquitur does not relieve the plaintiff of the burden of
showing negligence, nor does it raise any presumption in her favor. Sweeney v.
Erving , 228 U.S. 233 , 241 (1913).
¶8 In Creer v. U.S. Postal Service , the Board rejected the administrative
judge’s use of res ipsa loquitur to find that the appellant had an accident that
resulted in damage to a government vehicle because there was no showing that
the direct evidence concerning the cause of the vehicular damage was primarily
within the knowledge and control of the appellant, nor was the appellant charged
with negligence. Creer , 62 M.S.P.R. 656 , 659 (1994 ). Although the appellant
here is charged with negligence, w e believe that the principle articulated in Creer
is still applicable. As observed by the Board in Creer , application of res ipsa
loquitur generally is limited to tort actions in which direct evidence concerning
the cause of the injury is primarily within the knowledge and control of the
defendant . Creer , 62 M.S.P.R. at 659 . Here, although the missing medication
bag itself was under the appellant’s control, the agency was in full contr ol of the
facility in which the loss occurred and had the means to further investigate and
discover information about the incident. Accordingly, we find it inappropriate to
apply res ipsa loquitur to the instant removal appeal .
7
The initial decision is modified to clarify that the agency failed to show the
standard of care that the appellant was expected to exercise under the
circumstances, or that the appellant failed to exercise reasonable care; thus, the
agency did not prove by substantial evidence its charge of negligence.
¶9 The administrative judge properly considered whether the agency met its
burden of proving negligence by substantial evidence , ultimately concluding that
the agency failed to do so. ID at 6 -11. First, the agency failed to establish the
standard of care applicable to the appellant in delivering the medication bags, or
that she failed to exercise reasonable care. It is undisputed that, at the agency
facility’s pharmacy, medications are placed in Ziploc bags bearing patient names
and room numbers for delivery. IAF, Tab 8 at 22. At the time of the loss in
question , the Ziploc bags were then placed in blue bags with handles, without any
lock or closure, for transport. Id. at 25 ; HR (testimony of the appellant and the
appellant’s first -level supervisor). The appellant’s testimony regarding her
actions on the day in question is uncontroverted except for one detail, which we
ultimately find to be inconsequential. The appellant testified that on the date of
the loss of the medication , she had six bags for delivery to the domiciliary and the
nursing home building. HR (testimony of the appellant). Her first -level
supervisor testified that the appellant took all eight bags with her, which she
testified was not nor mal practice , but the appellant clarified that she took six bags
with her, one of which contained medication for multiple locations. HR
(testimony of the appellant and the appellant’s first -level supervisor). No
evidence indicates that taking six bags wa s improper.
¶10 The appellant also testified that she followed her regular routine on the day
in question and described her routine in great detail, including where she places
the bags during her deliveries and how she fills each medication cart. HR
(testim ony of the appellant). She further detailed how she retraced her steps once
she realized one medication bag was missing, contacted her supervisor for
assistance, and asked another staff member to contact the agency police and the
lost and found. Id. No one from the pharmacy staff came to assist her in
8
searching for the bag. Id. Several days later, another pharmacy technician found
the missing bag empty in one of the medication rooms the appellant had visited ,
and the bag’s tag was found in another medication room . IAF, Tab 8 at 43 .
Medication rooms are locked but may be entered with a code, which pharmacy
technicians, nurses, and janitorial staff all have. HR (testimony of the police
officer). There is nothing in the record that reflected that the appellant deviated
from correct procedure or that she improperly took her attention from the
medication bag while performing her duties, as her testimony reflected that she
was in very close proximity to the bag at all times.
¶11 Under 38 U.S.C. § 714(d)(2)(A), the agency’s decision to remove an
employee must be sustained if it is supported by substantial evid ence. Substantial
evidence is “[ t]he degree of relevant evidence that a reasonable pers on,
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). However, substantial evidence is “more than a mere scintilla.”
Adamsen v. Department of Agriculture , 116 M.S.P.R. 331 , ¶ 7 (2011 ) (quoting
Leatherbury v. Depart ment of the Army , 524 F.3d 1293 , 1300 (Fed. Cir. 2008)).
Despite the agency’s low burden of proof in this case, in the absence of any
evidence showing that the appellant failed to exercise the degree of care required
under the particular circumstances, which a person of ordinary prudence in the
same situation and with equal experience would not omit , we are compell ed to
find that the administrative judge properly declined to sustain the charge of
negligence .4
4 Because we find that the agency cannot establish its charge of negligence because it
failed to show by substantial evidence that the appellant failed to exercise the degree of
care required under the particular circumstances, which a person of ordinary pr udence
in the same situation and with equal experience would not omit, we need not reach, as
the administrative judge did, the question of whether the appellant’s alleged negligence
was the proximate cause of the loss of the medication inside the bag. ID at 10; see Ross
v. Nutt , 203 N.E.2d 118 , 120 (Ohio 1964) (providing that, in order to recover for an
9
¶12 The agency’s arguments regarding the administrative judge’s findings
regarding the number of individuals present at the time the medication bag went
missing and whether other employees previously had lost medication do not
persuade us to reach a different result . See PFR File, Tab 1 at 7 -9. Additionally,
as discussed below, we decline to consider those arguments that the agency first
raises on review.
The agency failed to raise objections below to the administrative judge’s
consideration of its subsequent remedial measures and merger of the agency’s
three charges ; thus, we decline to consider them on review.
¶13 On review, the agency challenges the administrative judge’s use of its
subsequent remedial measures to show that its policy regarding the medication
bags wa s flawed. PFR File, Tab 1 at 9 n.4 ; see ID at 10 . Evidence of the
agency’s subsequent efforts to improve procedures is generally inadmi ssible to
prove that the agency’s procedures were defective and does not relieve the
appellant of her duty of care. See Fed. R. Evid. 407 (“When measures are taken
that would have made an earlier injury or harm less likely to occur, e vidence of
the subseq uent measures is not admissible to prove . . . a defect in a product or its
design”)5; see also Pall Corp. v. Micron Separations, Inc. , 66 F.3d 1 211, 1221
(Fed. Cir. 1995) (observing that Rule 407 bars evidence of subsequent remedial
action in proving culpabil ity for a prior act or event). Despite multiple
opportunities to object to the admission of evidence regarding the agency’s
subsequent remed ial measures into the record, the agency failed to do so . See HR
(testimony of the appellant’s first -level supervisor, the chief of Pharmacy
Services , and the police officer); IAF, Tab 25 at 9. Because the agency failed to
object to the admission of this evidence below, we decline to revisit the
alleged negligent injury, the act complained of must be the direct and p roximate cause
of the injury).
5 Although the Federal Rules of Evidence do not apply to Board proceedings, the Board
may look to them for guidance. Hayden v. U.S. Postal Service , 15 M.S.P.R. 296 , 302
(1983), aff’d , 758 F.2d 668 (Fed. Cir. 1984) (Table).
10
administrative judge’s findings regarding this issue. See Harbo v. U.S. Postal
Service , 53 M.S .P.R. 450 , 453 -55 (1992) (declining to consider the agency’s
argument that the administrative judge erred in ruling that the appellant had
raised an affirmative defense of disability discrimination where the agency did
not object below to the ruling and th us did not properly preserve the issue for
review) ; Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579 , 581 (1988) (stating that
a party’s failure to timely object to rulings on witnesses precludes his doing so on
petition for review ); Hill v. Department of Health and Human Services ,
28 M.S.P.R. 91, 92 -93 (1985) (stating that a parties’ failure to object at hearing to
the introduction of allegedly irrelevant evidence precluded her from doing so on
review ), aff’d, 795 F.2d 1011 (Fed. Cir. 1986) (Table). Moreover, we need not
consider the agency’s subsequent remedial measures to reach our conclusion in
this case.
¶14 The agency also alleges on review that the administrative judge improperly
merged the three charges that the deciding official sustained in effecting the
appellant’s removal. PFR File, Tab 1 at 6 n.3 ; see IAF, Tab 8 at 9 -11, 15 -16. In
the initial decision, the administrative jud ge noted that she merged the charges
because they were based on the same facts, and that establishing one charge
would also establish the other charges. ID at 4 n.1. Previously , in issuing a
summary of the prehearing conference, the administrative judge informed the
parties that, because the parties agreed that establishing the first charge would
also establish the second and third charges, the charges were merged into one
charge with three specifications. IAF, Tab 17 at 1 -2. The administrative judge
directed the parties to file any corrections or obj ections to the summary within
5 days from the date of the summary . Id. at 5. The agency did not object to the
summary. Again, b ecause the agency did not file any objections to the
administrative judge’s r uling, it is precluded from raising this issue on review.
See Harbo , 53 M.S.P.R. at 453 -55. Accordingly, we affirm the initial decision
reversing the agency’s removal action.
11
ORDER
¶15 We ORDER the agency to cancel the appellant’s removal and restore the
appellant to duty as of the date of her removal . See Kerr v. National Endowment
for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this
action no later than 20 days after the date of this decision.
¶16 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Of fice 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 t han 60 calendar days after the date of this decision.
¶17 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 a ppellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶18 No later than 30 days after the agency tells the appellant that it has fully
carried o ut 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 specif ic 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).
¶19 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 proc ess payments and adjustments resulting from a Board decision
12
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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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 t hat issued
the initial decision on your appeal.
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 approp riate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which o ption is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediatel y review the law applicable to your
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final deci sions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the th ree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.caf c.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an a ppeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neit her endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
14
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed t hat you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claim s—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before yo u do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling conditi on, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess 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 ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 personne l practice described in
section 2302(b) ot her than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdicti on expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Cour t of Appeals
for the Federal Circuit or any other circuit court 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 ba ck 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 docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee 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 al l 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, wor kers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pa y 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 wi ll 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).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 cl ear 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 Pa yment 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 (Pe rsonnel 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, F EHBA, 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 Lu mp 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. | SWISHER_TONYA_CH_0714_19_0126_I_1_FINAL_ORDER_2067260.pdf | 2023-09-08 | null | CH-0714 | NP |
2,723 | https://www.mspb.gov/decisions/nonprecedential/JENKINS_TARA_L_DE_0353_18_0421_I_1_FINAL_ORDER_2067291.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TARA L. JENKINS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER S
DE-0353-18-0421 -I-1
DE-0752 -18-0422 -I-1
DATE: September 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tara L. Jenkins , Denver, Colorado, pro se.
Alex Rivera , Denver, Colorado, 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 decisions in
Jenkins v. U.S. Postal Service , MSPB Docket No. DE -0353-18-0421 -I-1, which
dismissed her restoration appeal as untimely filed, and Jenkins v. U.S. Postal
Service , MSPB Docket No. DE -0752 -18-0422-I-1, which dismissed her apparent
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
constructive suspension appeal as untimely filed. For purposes of this Final
Order, we JOIN the two appeals.2
¶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 err oneous 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 th e Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the pe tition for review and AFFIRM both initial decision s,
which are now the final decisions of the Board . 5 C.F.R. § 1201.113 (b).
¶3 In her petition for review , the appellant asserts that she fil ed timely
grievances , including grievances of her 14 -day suspension and the agency’s
attempt to collect a debt for health benefits , but she does not address the
timeliness of her Board appeals. The attached documents predate the close of the
record below, with the exception of an October 18, 2018 grievance worksheet,
which has no apparent relevance to the timeliness issue.3 See Russo v. Veterans
Administration , 3 M.S.P.R. 345 , 349 (1980) (holding that the Board will not grant
a petition for review based on new evidence absent a showing that it is of
2 Under 5 C.F.R. § 1201.36 (b), the Board may join appeals when, as in this case, doing
so will expedite processing of the cases and will not adversely affect the interests of the
parties.
3 Another document, a grievance worksheet dated January 22, 2018, refers to an
incident taking place on “11/26/18,” but this is evidently a typographical error.
3
sufficient weight to warrant an outcome different from that of the initial
decision ). Accordingly, we find the appellant has not provided a basis for further
review of either initial decision.4
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision . 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights describe d below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 We note that the February 26, 2018 letter denying the appellant’s request for light
duty does not incl ude notice of Board appeal rights. Howev er, the appellant has not
asserted that she was unaware of the filing deadline.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives t his decision before you do, then you must file
5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. distr ict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you ma y request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with t he
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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
compete nt jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisd iction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JENKINS_TARA_L_DE_0353_18_0421_I_1_FINAL_ORDER_2067291.pdf | 2023-09-08 | null | S | NP |
2,724 | https://www.mspb.gov/decisions/nonprecedential/MCDANIEL_STEVEN_CB_1208_23_0006_U_4_ORDER_ON_STAY_EXTENSION_REQUEST_2066509.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL
EX REL. STEVEN MCDAN IEL,
Petitioner,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CB-1208 -23-0006 -U-4
DATE: September 7, 2023
THIS STAY ORDER IS N ONPRECEDENTIAL1
Dustin Seth Frankel , Esquire, Washington, D.C., for the petitioner.
Katherine W. Krems , Esquire, Washington, D.C., for the relator .
Glen E. Woodworth , Esquire, Anchorage, Alaska, for the agency.
Theodore M. Miller , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(B ), the Office of Special Counsel (OSC)
requests a 60 -day extension of the previously granted stay of Mr. McDaniel’s
probationary termination by the Department of Veterans Affairs (agency) while
OSC completes its investigation and legal review of the matter and determines
whether to seek corrective actio n. For the reasons discussed below, OSC’s
request is GRANTED.
BACKGROUND
¶2 On April 6, 2023, OSC filed a 45 -day initial stay request of the
probationary termination of Mr. McDaniel based on alleged misconduct. Special
Counsel ex rel. Steven McDaniel v. Department of Veterans Affairs , MSPB
Docket No. CB -1208 -23-0006 -U-1, Stay Request File , Tab 1. In its initial stay
request, OSC argued that it had reasonable grounds to believe that the agency’s
action was in retaliation for Mr. McDaniel’s protected disclos ures and activities
under 5 U.S.C. § 2302 (b)(8) and (b)(9)(C). Id. On April 10, 2023, OSC’s initial
stay request was granted through and including May 24, 2023. Special Counsel
ex rel. Steven Mc Daniel v. Department of Veterans Affairs , MSPB Docket No.
CB-1208 -23-0006 -U-1, Order on Stay Request, ¶¶ 1, 10 (Apr. 10, 2023). OSC
subsequently requested, and the Board granted, two additional extensions of the
stay.2 The stay currently ends on Septembe r 21, 2023. Special Counsel ex rel.
Steven McDaniel v. Department of Veterans Affairs , MSPB Docket No. CB -1208 -
23-0006 -U-3, Order on Stay Extension Request, ¶ 9 (July 19, 2023).
2 By order dated May 24, 2023, the Board granted OSC’s request to extend the stay for
60 days, through and including July 23, 2023. Special Counsel ex rel. Steven
McDaniel v. Department of Veterans Affairs , MSPB Docket No. CB -1208 -23-0006 -U-2,
Order on Stay Extension Request (May 24, 2023). By order dated July 19, 2023, the
Board granted OSC’s request to extend the stay for 60 days, through and including
September 21, 2023. Special Counsel ex rel. Steven McDaniel v. Department of
Veterans Affairs , MSPB Docket No. CB -1208 -23-0006 -U-3, Order on Stay Extension
Request (July 19, 2023).
3
¶3 On August 23, 2023, OSC filed a third request to extend the stay for an
additional 60 days. Special Counsel ex rel. Steven McDaniel v. Department of
Veterans Affairs , MSPB Docket No. CB -1208 -23-0006 -U-4, Stay Request File
(U-4 SRF), Tab 1. The agency has responded to the extension request. U-4 SRF,
Tab 2.
ANALYSIS
¶4 A stay granted pursuant to 5 U.S.C. § 1214 (b)(1) is issued to maintain the
status quo ante while OSC and the agency involved resolve the disputed matter.
Special Counsel v. Department of Transport ation , 74 M.S.P.R. 155, 157 (1997).
The purpose of the stay is to minimize the consequences of an alleged prohibited
personnel pra ctice. Id. In evaluating a request for an extension of a stay, the
Board will review the record in the light most favorable to OSC and will grant a
stay extension request if OSC’s prohibited personnel practice claim is not clearly
unreasonable. Id. at 158. The Board may grant the extension for any period that
it considers appropriate. 5 U.S.C. § 1214 (b)(1)(B); Special Counsel ex rel.
Waddell v. Department of Justice , 105 M.S.P.R. 208, ¶ 3 (2007).
¶5 In its third request for a 60-day extension of the existing stay, OSC asserts
that, based on the factual record, which remain s largely unchanged, it has
concluded that Mr. McDaniel’s probationary termination constituted a prohibited
personnel practice in violation of 5 U.S.C. §§ 2302 (b)(8) and (b)(9)(C).
U-4 SRF, Tab 1 at 2, 7 -8. OSC states that it has prepared a draft repo rt of its
findings, but the report is currently under supervisory review, and an extension is
needed to finalize the report and transmit it to the Board, the agency, and the
Office of Personnel Management, as required by 5 U.S.C. § 1214 (b)(2)(B) . U-4
SRF, Tab 1 at 2, 8. OSC further explains that an extension is necessary because
4
the Board’s electronic filing system will be offline between September 9 and
October 1, 2023 .3 Id. at 2.
¶6 In its re sponse to the extension request, the agency continues to maintain
that whistleblower reprisal did not occur but that, given the Boa rd’s ruling on the
previous stay extension request and the status of OSC’s investigation, it was
unlikely that it would be successful in opposing the stay request. U -4 SRF,
Tab 2. Significantly, the agency does not make any specific arguments
supporting its opposition to the extension. Id.
¶7 Viewing the record in the light most favorable to OSC, and considering the
fact that the evidentiary record supporting OSC’s initial stay request does not
appear to have changed materially since the initial stay was g ranted, an extension
of the stay is not clearly unreasonable to allow OSC to finalize its report , attempt
a resolution of this matter , and, if necessary, pursue corrective action before the
Board. Special Counsel v. Small Business Administration , 73 M.S.P.R. 12, 13-14
(1997). A separate determination must be made on the length of a requested stay.
Waddell , 105 M.S.P.R. 208, ¶ 5. It is the intent of Congress that stays not be
extended for prolonged periods of time. Special Counsel v. D epartment of the
Treasury , 71 M.S.P.R. 419, 421 (1996). Moreover , the Board is obligated to
press OSC to present corrective acti on cases in a timely manner. Id. at 422.
However, to date, it appears that OSC has utilized the stay judiciously , having
made significant progress in this matter, as evidenced by the fact that OSC has
already concluded its investigation and prepared a draft of its report per 5 U.S.C.
3 On August 7, 2023, the Offic e of the Clerk of the Board issued a scheduling or der,
notifying the parties that the Bo ard is transitioning to a new version of its electronic
filing system, requiring the system to be offline for a period that encompassed the end
of the current stay. Special Counsel ex rel. Steven McDaniel v. Department of Veterans
Affairs , MSPB Docket No. CB -1208-23-0006 -U-3, Stay Request File, Tab 6 at 1.
Accordingly, the scheduling order modified the previously set deadline s regarding a
request for an extension of the stay , directing OSC to file a ny request for an extension
by Augus t 23, 2023, and the agency to file its response to any such request by
August 30, 2023. Id. at 2.
5
§ 1214 (b)(2)(B) . U-4 SRF, Tab 1 at 2, 7 -8. Accordingly, in light of these
factors, we find that a 60 -day extension of the stay is warranted, and we therefore
grant OSC’s request.
ORDER
¶8 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), a 60 -day extension of the stay is
hereby GRANTED , and it is ORDERED tha t:
(1) The stay issued on April 10, 2023, is extended through and including
November 20 , 2023 , on the terms and conditions set forth in that
Order;
(2) The agency shall not effect any changes in Mr. McDaniel’s duties or
responsibilities that are inconsistent with the relator’s salary or grade
level, or impose upon the relato r any requirement which is not
required of other employees of comparable position, salary, or grade
level;
(3) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
(4) Any re quest for an extension of this stay pursuant to 5 U.S.C.
§ 1214 (b)(1)(B) and 5 C.F.R. § 1201.136 (b) must be received by the
Clerk of the Board and the agency, together with any further
evidentiary support, on or before November 3, 2023 ; and
6
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board on or
before November 10, 2023 .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCDANIEL_STEVEN_CB_1208_23_0006_U_4_ORDER_ON_STAY_EXTENSION_REQUEST_2066509.pdf | 2023-09-07 | null | CB-1208 | NP |
2,725 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_GEORGE_NY_1221_14_0389_W_1_REMAND_ORDER_2066536.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GEORGE JOHNSON,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER S
NY-1221 -14-0389-W-1
NY-1221 -16-0251 -W-1
DATE: September 7, 2023
THIS ORDER IS NONPRECEDENTIAL1
Alan E. Wolin , Esquire, Jericho, New York, for the appellant.
Andrew Lipkind , Esquire, Buffalo, New York, for the agency.
Larry Zieff , Esquire, Irving, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
REMAND ORDER
¶1 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 a ppellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
AFFIRM the initial decision’s determ ination that the appellant did not
nonfrivolously allege a protected disclosure under 5 U.S.C. § 2302 (b)(8),
VACATE the remainder of the initial decision, and REMAND the case to the
New York Field Office for further adjudication in accordance with this Remand
Order.
BACKGROUND
¶2 The appellant is employed as a GS -13 Special Agent with Immigration and
Customs Enforcement. Johnson v. Department of Homeland Security , MSPB
Docket No. NY -1221 -16-0251 -W-1, Initial Appeal File (0251 IAF), Tab 1 at 2,
Tab 11 at 4. He began his career with the agency in 2008 and , for all periods
relevant to these appeals, has been assigned to the Newark, New Jersey office.
0251 IAF, Tab 11 at 4.
¶3 On October 7, 2010, the app ellant, through his attorney, disclosed to agency
officials his belief that his current and former supervisors had engaged in
“conduct against him which can only be construed as harassment.” Johnson v.
Department of Homeland Security , MSPB Docket No. NY -1221-11-0107 -W-1,
Initial Appeal File (0107 IAF), Tab 5 at 5 -9. In November 2010 , the appellant
filed a complaint with the Office of Special Counsel (OSC) alleging that, in
retaliation for the October 2010 disclosure , his current supervisor issued him a
performance appraisal that “did not accurately reflect [his] true job performance.”
Id. at 44, 61.
¶4 After OSC closed its investigation, the appellant filed a February 2011 IRA
appeal with the Board, raising the sam e issues he raised before OSC. Id.
at 80, 82, 86; 0107 IAF, Tabs 1, 5, 20. The agency moved to dismiss the appeal
for lack of jurisdiction, but the administrative judge denied that motion, finding
that the appellant had made a nonfrivolous allegation that he made a disclosure
protected under 5 U.S.C. § 2302 (b)(8) and that the disclosure was a contributing
factor in the decision to take a personnel action. 0107 IAF, Tab 10 at 1-12,
3
Tab 12 at 2 -3. The administrative judge in that appeal sc heduled a hearing, but
the parties entered into a settlement agreement prior to the hearing. 0107 IAF,
Tab 12 at 3, Tab 29. In a September 7, 2011 initial decision dismissing the
appeal as settled, the administrative judge found, among other things, that the
Board had jurisdiction over the appeal. 0107 IAF, Tab 30 , Initial Decision . The
initial decision became final on October 12, 2011, after neither party filed a
petition for review. Id. at 4.
¶5 On May 6, 2014, the appellant filed another complaint with OSC, alleging
that, in reprisal for his October 2010 disclosure, his November 2010 OSC
complaint, and his February 2011 Board appeal , various agency officials took or
failed to take various actions regarding his employment between February 2012
and April 2014 , including denying his hardship transfer , making negative
statements that tainted his Supervisory Promotional Assessment Panel, issuing
him an unjustifiably negative mid -year review, not selecting him for a position ,
issuing him an undeservedly low ra ting on his performance appraisal, and
denying him a cash award . Johnson v. Department of Homeland Security , MSPB
Docket No. NY -1221 -14-0389-W-1, Initial Appeal File (0 389 IAF) , Tab 9
at 20-34, 53. On September 17, 2014, after the OSC complaint had been pending
for 120 days, the appellant filed an IRA appeal with the Board arguing the same
issues raised in the OSC complaint. 0389 IAF, Tabs 1, 9, 10, 29. The appeal was
assigned to a different administr ative judge than the one who heard the
appellant’s 2011 Board appeal .
¶6 While the September 2014 IRA appeal was pending before the
administrative judge, on November 20, 2015, the appellant filed another
complaint with OSC alleging that , in reprisal for his d isclosures, November 2010
and May 2014 OSC complaints, and February 2011 and September 2014 Board
appeal s, various agency officials took or failed to take various actions regarding
his employment between April 2014 and October 2015 , including assigning him
to double duty function s, not providing him with sufficient time to complete an
4
assignment, issuing him an unjustifiably low rating on his performance appraisal,
and denying him a cash award .2 0251 IAF, Tab 1 at 13 -29. On June 1, 2016,
after the Novembe r 20, 2015 OSC complaint had been pending for 120 days, the
appellant file d another IRA appeal with the Board, raising the same issues raised
in the November 2015 OSC complaint. 0251 IAF, Tabs 1, 11 .
¶7 The administrative judge joined the June 2016 IRA appea l and the
September 20 14 IRA appeal for adjudication and issued a Sept ember 30, 2016
initial decision.3 0251 IAF, Tab 6, Tab 21, Initial Decision (0251 ID) . The
administrative judge first found that the joined appeals were not covered by the
Whistleblower Protection Enhancement Act (WPEA) , which took effect on
December 27, 2012, because the appellant’s alleged protected disclosure took
place in October 2010. 0251 ID at 9-11. The administrative judge then found
that the law of the case doctri ne did not prevent him from reexamining the
previous administrative judge’s jurisdictional ruling in the 2011 initial decision
dismissing the appeal as settled and finding that the appellant failed to make a
nonfrivolous allegation of a protected disclosur e under 5 U.S.C. § 2302 (b)(8).
0251 ID at 12-21. The administrative judge also found that, assuming that the
appellant made a nonfrivolous allegation that he made a protected disclosure, he
faile d to make a nonfrivolous allegation that his actions were a contributing factor
in a personnel action taken against him. 0251 ID at 21-25. Thus, he found that
the appellant failed to meet his burden to show that the Board has jurisdiction
over these joined appeal s, and he dismissed the appeal s without holding the
appellant’s requested hearing. 0251 ID at 25 -26; 0251 IAF, Tab 1 at 2; 0389 IAF,
Tab 1 at 2 .
2 The appellant set forth a list of approximately 17 alleged personnel actions in his
response to the administrative judge’s jurisdictional order. 0251 IAF, Tab 11 at 19 -23.
3 For ease of reference, we will cite to the initial decision in MSPB Docket
No. NY-1221 -16-0251 -W-1.
5
¶8 In his petition for review of the initial decision , the appellant argues that the
administrative judg e erred by disregarding the law of the case doctrine regarding
the finding of jurisdiction in the 2011 appeal. Petition for Review (PFR) File,
Tab 1 at 8. He also asserts that he made a nonfrivolous claim that he made
protected disclosure s under 5 U.S.C. § 2302 (b)(8)(A) and (b)(8)(B), engaged in
protected activit ies under 5 U.S.C. § 2302 (b)(9), and that the retroactivity of the
WPEA is not an issue in the appeal. Id. at 7-9. Finally, the appellant argues that
the administrative judge erred in finding that he failed to make a nonfrivolous
allegation that his protected disclosure s or activities were a contributing factor in
the contested pe rsonnel actions. Id. at 10 -15. The agency has responded in
opposition to the petition for review. PFR File, Tab 3 .
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly found that the appellant’s October 2010 letter
did not contain protected disclosures under 5 U.S.C. § 2302 (b)(8).
¶9 As an initial matter, we discern no basis to disturb the administrative
judge’s finding that the appellant’s October 2010 letter did not contain protected
disclosure s. 0251 ID at 12 -21. The allegations contained within the October
2010 letter consisted largely of the appellant’s objections to his current and
former supervisor ’s treatment of him, alleging, among other things, that they were
overly critical of his performance, threatened to place him on a performance
improvement plan , and demeaned and belittled him in front of others. 0107 IAF,
Tab 5 at 5 -9. The administrative judge thorough ly addressed each of the
allegations contained within the five -page letter, finding that the appellant failed
to establish that he held a reasonable belief that the disclosures contained within
the letter evidenced gross mismanagement, abuse of authority, or a violation of
law, rule, or regulation. 0251 ID at 12 -21. After considering the appellant’s
arguments on review, we find that the administrative judge’s findings are
6
well-reasoned and supported by the r ecord .4 Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 106 (1997) (explaining that the Board will not disturb an
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclus ions on issues of
credibility) ; Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same) .
Contrary to the administrative judge’s finding, these joined appeals are subject to
the provisions of the WPEA.
¶10 The administrative judge determined that, because the appellant’s initial
disclosure occurred prior to the effective date of the WPEA, that statute did not
apply . 0251 ID at 9 -11. Accordingly, he limited his analysis in the initial
decision to whether the appellant made a nonfrivolous allegation that his
October 2010 letter constituted a pr otected disclosure under 5 U.S.C.
§ 2302 (b)(8) , and did not address whether the appellant’s OSC complaints or IRA
appeals constituted protected activities under 5 U.S.C. § 2302 (b)(9). 0251 ID
at 9-21.
¶11 As noted above , the WPEA became effective on December 27, 2012.
WPEA, § 202, Pub. L. No. 112 -199, 126 Stat. 1465, 14 76 (2012) . That statute
extended the scope of the Board’s jurisdiction over IRA appeals to include the
prohibited personnel practice s described in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C),
and (D), as amended by the WPEA. WPEA , § 101(b)(1)(A ), 126 Stat. 1465 ,
1465 ; see 5 U.S.C. § 1221 (a); Miller v. Federal Deposit Insurance Corporation ,
122 M.S.P.R. 3 , ¶ 2 (2014) , aff’d , 626 F. App’x 261 (Fed. Cir. 2015) . In
4 As noted above, the administrative judge found that the law of the case doctrine did
not preclude him from reexamining , in this IRA appeal , the earlier administrative
judge’s finding , in dismissing the prior IRA appeal as settled , that the appellant had
made a nonfrivolous allegation of a protected disclosure . 0251 ID at 11-12. We agree.
See, e.g. , Pawn v. Department of Agriculture , 90 M.S.P.R. 473, ¶ 15 (2001 ) (holding
that, under the law of the c ase doctrine, a decision on an issue of law made at one stage
of a proceeding becomes a binding precedent to be followed in successive stages of the
same litigation ).
7
determining whether the WPEA applies to an appeal , the Board has explained that
the relevant consideration is whether the statutory provisions would impair rights
a party possessed wh en he acted, increase a party’s liability for past c onduct, or
impose new duties concerning transactions already completed. Edwards v.
Department of Labor , 2022 MSPB 9 , ¶ 31 (quoting Landgraf v. USI Film
Products , 511 U.S. 244 , 280 (1994) ), aff’d , No. 2022 -1967 (Fed. Cir. July 7,
2023) .
¶12 The relevant events in this appeal are the alleged retaliatory personnel
actions taken by various agency officials. With one exception, those actions all
occurred after the effective date of the WPEA.5 The agency, therefore, knew of
the parties’ rights, liabilities, and duties under the WPEA when it took the
personnel actions at issue here. Thus, contrary to the administrative judge’s
finding, we find that the WPEA should be applied in these joined appeals. See
Edwards , 2022 MSPB 9 , ¶ 31.
The appellant engaged in protected activities under 5 U.S.C. § 2302 (b)(9).
¶13 Applying the WPEA to these appeals, the appellant establishes Board
jurisdiction over his IRA appeal if he proves by preponderant evidence that he
has exhausted his administrative remedies before OSC6 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
5 In his May 2014 OSC complaint and his September 14, 2014 Board appeal, the
appellant alleged that the denial of his February 2012 request for a hardship transfer
constituted a retaliatory personnel action. 0389 IAF, Tabs 1 , 9, 10, 29. That purported
action occurred prior to the effective date of the WPEA.
6 To satisfy the exhaustion requirement of 5 U.S.C. § 1214 (a)(3), an appellant must
have provided OSC with a s ufficient basis to pursue an investigation into his allegations
of whistleblowing reprisal. 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. Id.
8
personnel action as defined by 5 U.S.C. § 2302 (a). Edwards , 2022 MSPB 9 , ¶ 8;
Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016); see 5 U.S.C.
§§ 1214 (a)(3), 1221(e)(1). As relevant here, section 2302(b)(9)(A)(i) includes as
a prote cted activity “the exercise of any appeal, complaint, or grievance
right . . . with regard to remedying a violation of [ 5 U.S.C. § 2302 (b)(8)],” for
example , a prior IRA appeal. See Clay v. Department of the Army , 123 M.S.P.R.
245, ¶ 10 (2016) (finding that an appellant’s prior Board appeal, which included a
whistleblowe r reprisal claim, constituted a protected activity under 5 U.S.C.
§ 2302 (b)(9)(A)(i)). Similarly, section 2302(b)(9)(C) states that an employee
engages in protected activity when he discloses info rmation to the agency’s
Office of the Inspector General or to OSC “in accordance with applicable
provisions of law,” regardless of the content of the disclosure. Fisher v.
Department of the Interior , 2023 MSPB 11 , ¶ 8.
¶14 Accordingly , pursuant to section 2302(b)(9)(A)(i) and (b)(9)(C), we find
that the appellant engaged in protected activities when he filed his November
2010 and May 2 014 OSC complaints, and his February 2011 and September 2014
IRA appeals. The administrative judge , however , did not consider whether the
appellant made a nonfrivolous allegation that his OSC complaints or IRA appeals
were a contributing factor in the multiple actions raised by the appellant . 0251
ID at 21 -25; 0251 IAF, Tab 11 at 19 -23.
On remand, the administrative judge shall determine whether the appellant made
a nonfrivolous allegation that his OSC complaints and prior IRA appeals were a
contributing factor in the alleged personnel actions.
¶15 It is clear that, by filing his OSC complaints and IRA appeals, the appellant
engaged in protected activity under 5 U.S.C. § 2302 (b)(9). The administrative
judge on remand shall determine whether the appellant made a nonfrivolous
allegation that his OSC complaints and prior IRA appeals were a contributing
9
factor in the alleged pers onnel actions at issue .7 To satisfy the contributing factor
criterion at the jurisdictional stage in an IRA appeal , the appellant need only raise
a nonfrivolous allegation that the fact of, or the content of , the activity was one of
the factors that tende d to affect the personnel action in any way. Abernathy v.
Department of the Army , 2022 MSPB 37, ¶ 15. One way to establish this
criterion is the knowledge/timing test, in which the appellant may demonstrate
that the official taking the personnel action knew of the activities and that the
personnel action occurred within a period of ti me such that a reasonable person
could conclude that the activities were a contributing factor in the personnel
action. Id. Personnel actions occurring within 1 to 2 years after the protected
activities are sufficient to meet the timing portion of the tes t. Id.
¶16 The knowledge portion of the knowledge/timing test can be met with
allegations of either actual or constructive knowledge. Id. An appellant may
establish an official’s constructive knowledge of a protected activity by
demonstrating that an indi vidual with actual knowledge of the activity influence d
the official accused of taking the retaliatory action. Id. Also , at the jurisdictional
stage, the appellant may be able to establish the knowledge prong even if he did
not specifically identify the agency official responsible for a personnel action.
See Cahill v. Merit Systems Protection Board , 821 F.3d 1370 , 1373 -76 (Fed. Cir.
2016) (finding that, given the contextual clues in the record, the appellant made a
nonfrivolous allegation of contributing factor even though he did not specifically
identify the agency officials who heard his disclosures) ; see also Bradley v.
Department of Homeland Security , 123 M.S.P.R. 547 , ¶¶ 15-16 (2016) (finding
that, at the jurisdictional stage of an IRA appeal , an appellant can meet his burden
7 The administrative judge should also consider whether the appellant made a
nonfrivolous allegation that the various agency actions constitute covered personnel
action s under 5 U.S.C. § 2302 (a)(2)(A) (enumerating the personnel actions covered
under the whistleblower protection statutes).
10
of proof regarding contributing factor without specifically identifying which
management official was responsible for the reprisal ).
¶17 Additionally , if an appellant fails to satisfy the knowledge/timing test, the
administrativ e judge must consider whether the appellant can establish
contributing factor by other means, such as evidence pertaining to the strength or
weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directe d towards the official taking the action, or
whether these individuals had a desire or motive to retaliate against the appellant.
Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 15; Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶ 12 (2012). Thus, to the extent that
the knowledge/timing test is not met regarding any personnel action, the
administrative judge should consider whether the appellant has established a
nonfrivolous allegation of contributing factor by other means as set forth above .
¶18 If the administrative judge finds that the appellant nonfrivolously alleged
that his OSC complaints or Board appeals were contributing factors in at least one
personnel action, then the administrative judge shall conduct a hearing on the
merits of the ap pellant’s claims.8 In any event, the administrative judge shall
issue a new initial decision that identifies all material i ssues of fact and law,
summarizes the evidence, resolves issues of credibility, and includes conclusions
of law and legal reasoning, as well as the authorities on which that reasoning
rests . Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980).
8 If the appe llant proves by preponderant evidence that a protected activity was a
contributing factor in a personnel action, the administrative judge shall order corrective
action unless the agency proves by clear and convincing evidence that it would have
taken the s ame actions absent the protected activity. 5 U.S.C. § 1221 (e)(1) -(2).
11
ORDER
¶19 For the reasons discussed ab ove, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOHNSON_GEORGE_NY_1221_14_0389_W_1_REMAND_ORDER_2066536.pdf | 2023-09-07 | null | S | NP |
2,726 | https://www.mspb.gov/decisions/nonprecedential/TURRENTINE_DAVID_S_DA_0752_17_0224_I_1_REMAND_ORDER_2066615.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID S. TURRENTINE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0752 -17-0224 -I-1
DATE: September 7, 2023
THIS ORDER IS NONPRECEDENTIAL1
Raymond Gillen , Kerrville, Texas, for the appellant.
Sean A. Safdi , Esq uire, and Daniel Morvant , San Antonio, Texas, for the
agency.
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction . 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).
2
REMAND the case to the Dallas Regional Office for further adjudication in
accordance with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The agency removed the appellant, effective February 5, 2017, based on the
charge of failure to meet the suitability requirements to obtain a personal
identification verification card. Initial Appeal File (IAF), Tab 8 at 9 -15. The
decision notice advised the appellant of his rights to challenge the action ,
including his right to file a Board appeal or a grievance under the negotiated
grievance procedure. Id. at 11. The appellant designated his union as his
representative, and the local union president timely filed a grievance challenging
the removal on the appellant’s behalf. IAF, Tab 13 at 13 -14, 18, 20. After the
agency denied the grievance, the appel lant appealed his removal to the Board. Id.
at 15; IAF, Tab 2.
¶3 Without holding the appellant’s requested hearing, the administrative judge
found that the appellant grieved his removal before filing his Board appeal and
dismissed the appeal for lack of jur isdiction under 5 U.S.C. § 7121 (e)(1) . IAF ,
Tab 19, Initial Decision. The appellant filed a petition for review, to which the
agency responded. Petition for Review File, Tabs 1, 3.
¶4 An employee s ubjected to an adverse action which also falls within the
coverage of a negotiated grievance procedure may challenge the action through a
Board appeal or the negotiated grievance proce dure, but not both. 5 U.S.C.
§ 7121 (e)(1). An employee is deemed to h ave exercised an option when he
timely files a notice of appeal or timely files a written grievance, whichever
occurs first. Id. However, for an election of an o ption to be binding, it must be
knowing and informed. Kaszowski v. Department of the Air Force , 2023 MSPB
15, ¶ 5. Thus, the Board’s regulations require th at, when an agency issues a
decision notice for any action appealable to the Board, it must notify the
employee of the available avenues to challenge the agency action and the
3
preclusive effect any election will have on the employee’s Board appeal rights.
Id.; 5 C.F.R. § 1201.21 (d)(1). The Board has hel d that, when an agency takes
an action without informing the appellant of his proc edural options under
5 U.S.C. § 7121 and the preclusive effect of electing one of those options, any
subsequent election by the appellant is not binding. Kaszowski , 2023 MSPB 15 ,
¶ 5.
¶5 In Kaszowksi , which was decided after the issuance of the initial decision in
this case, the Board held that an employee who grieved her removal before
appealing it to the Board did not waive her right to file a Board appeal when the
decision notice did not fully explain the consequences of choosing the appeal or
grievance procedure, i.e., did not explicitly inform her that she could raise her
removal with the Board or under the negotiated grievance procedure, bu t not both,
or that grieving her removal would result in waiver of her Board appeal right.
2023 MSPB 15 , ¶¶ 2, 7. The notic e of appeal rights here, which is virtually
identical to that in Kaszowski , suffers from the very same defect.2 Id., ¶¶ 6 -7;
IAF, Tab 8 at 11 -12. The appellant thus cannot be deemed to have made a
knowing and informed election or to have waived his Board appeal right by
having first filed a grievance. Kaszowski , 2023 MSPB 15 , ¶ 7 . We thus vacate
2 The notice of appeal rights provided by the agency informed the appellant that he was
entitle d to: “a) appeal th is action to the Merit Systems Protection Board (MSPB) or ;
b) seek corrective action before the U.S. Office of Special Counsel (OSC) or ; c) file a
grievance under the negotiated grievance procedure or : [sic] d) a discrimination
complaint with the Office of Resolution s Management (ORM).” IAF, Tab 8 at 11. The
notice continued as follows:
You shall be deemed to have exercised your option to appeal the adverse
action at such time as you timely initiate action to a ppeal to MSPB or
OSC, or timely file a grievance in writing under the negotiated grievance
procedure, or a discrimination complaint. If your appeal includes an
allegation that the facility engaged in a prohibited personnel action in
retaliation for protec ted whistleblowing, you may elect to file an appeal to
MSPB, OSC, or a negotiated grievance and your election is based on
which election you file first.
Id.
4
the initial decision and rema nd the appeal for adjudication of the appellant’s
removal on the merits. Id., ¶¶ 1, 7. On remand, the administrative judge shall
fully identify the issues and afford the parties the opportunity to fully develop the
record on those issues through discover y and submission of additional evidence
and argument. The administrative judge shall then hold a hearing and issue a new
initial decision addressing, consistent with the most recent precedent, the merits
of the appellant’s removal and any affirmative defe nses.3 See Spithaler v. Office
of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (stating that an initial
decision must identify all mat erial issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and legal reasoning, as well as the authorities on which that
reasoning rests).
3 In a February 21, 2017 letter, the Board rejected the ap pellant’s timely filed
February 14, 2017 appeal because it did not include a copy of the agency decision being
appealed and instructed him to refile a corrected appeal within 10 calendar days. IAF,
Tab 1. The appellant did not file a corrected appeal until March 10, 2017. IAF, Tab 2.
Thus, as the administrative judge correctly observed, there is a question as to whether
the appeal was timely filed or whether good cause existed for the appellant’s filing
delay. IAF, Tab 4. Because it appears that s he did not rule on these issues and the
recor d is insufficient to decide them on review, on remand, the administrative judge
shall provide the parties with notice of the issues and requirements and afford them an
opportunity to submit additional evidence and argument. We observe that, allowing for
5 additional days for the delivery of the February 21, 2017 rejection notice, which was
served by mail, the appellant’s deadline to file a corrected appeal would have been
March 8, 2017, rendering his corrected March 10, 2017 ap peal 2 days late, rather than
3 days late as determined by the administrative judge. 5 C.F.R. § 1201.23 ; IAF, Tab 1,
Tab 4 at 2.
5
ORDER
¶6 For the reasons discussed above, we remand this case to the Dallas Regional
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TURRENTINE_DAVID_S_DA_0752_17_0224_I_1_REMAND_ORDER_2066615.pdf | 2023-09-07 | null | DA-0752 | NP |
2,727 | https://www.mspb.gov/decisions/nonprecedential/MCKINNIS_STEVEN_A_DA_0432_18_0199_I_1_FINAL_ORDER_2066626.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN A. MCKINNIS,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DA-0432 -18-0199 -I-1
DATE: September 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan L. Kruger , Esquire, Washington, D.C., for the appellant.
Conor Cleary , Esquire, Tulsa, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
Mem ber Leavitt recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his performance -based removal appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application 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 affe cted the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we 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
¶2 The appellant was a GS -12 Auditor f or the agency’s Office of Natural
Resources Revenue. McKinnis v. Department of the Interior , MSPB Docket
No. DA-0432 -18-0199-I-1, Initial Appeal File ( 0199 IAF), Tab 1 at 1, 9. On
October 14, 2016, the appellant filed a whistleblower complaint with the O ffice
of Special Counsel (OSC), challenging a July 19, 2016 letter of reprimand. Id.
at 21-33. Throughout the following year, the appellant amended his complaint to
include several other alleged personnel actions, culminating in a December 14,
2017 notic e of proposed removal under 5 U.S.C. chapter 43. 0199 IAF, Tab 8
at 13-17, Tab 28 at 4 -56.
3
¶3 On January 10, 2018, OSC sent the appellant a preliminary determination
letter, informing him that it planned to close its inquiry without taking corrective
action and giving him 13 days to respond. 0199 IAF, Tab 1 at 34, Tab 28
at 57-58. Then, on January 18, 2018, the agency issued a decision to remove the
appellant from service, which the appellant forwarded to OSC on January 22,
2018. 0199 IAF, Tab 8 at 5 -9, Ta b 33 at 12 -15. On January 30, 2018, outside the
13 days but before OSC issued its close -out letter, the appellant received his
separation folder from the agency. 0199 IAF, Tab 33 at 16. He forwarded the
information to OSC in an email stating, “I receive d the following separation
folder today. Please see attached. Is there anything that can be done on my
behalf? Please advise.” 0199 IAF, Tab 33 at 16 -26. The following day,
January 31, 2018, the OSC attorney handling the appellant’s case responded b y
email, informing the appellant that there was insufficient information to
demonstrate that the removal was unfounded and that OSC would issue a
close -out letter later that day. Id. at 66. OSC issued the close -out letter as
promised, summarizing the appellant’s complaint as pertaining to a written
reprimand, a 14 -day suspension, a performance improvement plan (PIP), and a
proposed removal. 0199 IAF, Tab 1 at 35. The close -out letter did not mention
the removal action per se.
¶4 On February 16, 2018, th e appellant filed an individual right of action
(IRA) appeal with the Board, which he apparently intended to encompass his
removal as well as the various other personnel actions discussed above.
McKinnis v. Department of the Interior , MS PB Docket No. DA -1221-18-0200 -
W-1, Initial Appeal File (0200 IAF), Tab 1. Because OSC’s close -out letter did
not specifically mention the removal action , the regional office docketed a
separate appeal for the removal under the procedures of 5 U.S.C. chapter 43.
0199 IAF, Tab 35, Initial Decision (ID) at 2. However, upon review of the record
as requested by the appellant’s attorney, the administrative judge determined that
the appellant had exhausted his administrative remedies with OSC with respect to
4
his removal. 0200 I AF, Tab 12 at 2. She advised the parties of her intention to
adjudicate the removal in the context of the IRA appeal and to dismiss the
chapter 43 appeal on the basis that the appellant had made a binding election to
challenge his removal before OSC. Id. Over the appellant’s objection, the
administrative judge issued an initial decision dismissing the chapter 43 appeal
for lack of jurisdiction. 0199 IAF, Tab 33; ID.
¶5 The appellant has filed a petition for review, arguing that he did not make a
knowing an d informed decision to seek corrective action from OSC on the
removal decision. Petition for Review (PFR) File, Tab 1. The agency has filed a
response the petition for review, PFR File, Tab 3, and the appellant has filed a
reply to the agency’s response, PFR File, Tab 4.
ANALYSIS
¶6 Under 5 U.S.C. § 7121 (g), an employee who has been subjected to an action
appealable to the Board and who alleges that he has been affected by a prohibited
personnel prac tice other than a claim of discrimination under 5 U.S.C.
§ 2302 (b)(1) may elect to pursue a remedy through one, and only one, of the
following remedial processes: (1) an appeal to the Board under 5 U.S.C. § 7701 ;
(2) a grievance filed pursuant to the provisions of the negotiated grievance
procedure; or (3) a complaint following the procedures for seeking corrective
action from OSC under 5 U.S.C. §§ 1211 –1222. Agoranos v. Department of
Justice , 119 M.S.P.R. 49 8, ¶ 14 (2013). Whichever remedy is sought first by an
aggrieved employee is deemed an election of that procedure and precludes
pursuing the matter in either of the other two forums. Agoranos , 119 M.S.P.R.
498, ¶ 14. To be binding, however, the election must be knowing and informed;
the employee must be aware of all of his options, and of the effect that pursuing a
particular opti on will have on his ability to pursue other options. Id., ¶ 15.
¶7 The administrative judge found, and the appellant does not dispute, that the
agency’s decision letter fully apprised him of his options for challenging the
5
removal and of the limitations of t hose options. ID at 5. We agree. The decision
letter informed the appellant that he had the right to appeal to the Board or to
seek corrective action before OSC, but if he sought corrective action before OSC,
the issue would be limited to whether the re moval was in retaliation for
whistleblowing, and the appellant would be forgoing his right to otherwise
challenge the removal. 0199 IAF, Tab 8 at 7 -8. We find that these provisions
satisfy the notice requirement of 5 C.F.R. § 1201.21 (d)(4).
¶8 The appellant argues, however, that his communications with OSC
regarding the removal did not actually constitute an election to proceed in that
forum. His argument is essentially in two parts: Firs t, that although he apprised
OSC of his removal, he did not request that OSC investigate the matter but
instead asked whether anything could be done, and second, that OSC did not
investigate the removal and did not include it in its close -out letter . PFR File,
Tab 1 at 9 -12. For the following reasons, we disagree.
¶9 Regarding the appellant’s apprising OSC of his removal, we agree that he
did not specifically request that OSC “investigate” the matter. PFR File, Tab 1
at 9-10; 0199 IAF, Tab 33 at 15 -16. How ever, the governing statute does not
require a complainant to use any particular words to invoke OSC’s remedial
authority; it requires only an “allegation of a prohibited personnel practice.”
5 U.S.C . § 1214 (a)(1)(A). In this case, the appellant not only informed OSC of
the January 18, 2018 removal action, but also did so in the context of his ongoing
whistleblower complaint and asked OSC whether it could do anything about the
removal. 0199 IAF, Tab 33 at 12 -16. We agree with the administrative judge
that this was a rather unambiguous request for corrective action. ID at 4 -5.
¶10 Regarding OSC’s handling of the removal, we agree with the appellant that
OSC did not mention the removal in its close -out letter and does not appear to
have conducted a separate investigation of it. 0199 IAF, Tab 1 at 35; PFR File,
Tab 1 at 10 -12. Nevertheless, OSC’s failure to specifically mention removal in
its close -out letter is not dispositive of the issue. In McVay v. Arkansas National
6
Guard , 80 M.S.P.R. 120 , 124 (1998) , the Board found that the appellant ’s
submissions to OSC were sufficient to show that he had exhausted his
administrative remedy regarding a personnel action that was not mentioned in
OSC’s close -out letter . Accord Costin v. Department of Health and Human
Services , 72 M.S.P.R. 525 , 534 -35 (1996) , modified on other grounds by Costin v.
Department of Health and Human Services , 75 M.S.P.R. 242 (1997) . As
explained above, the appellant ’s submissions to OSC are sufficient to show that
he elected to seek corrective action rather than file a Boar d appeal.
¶11 We also find that election of remedies is not predicated on OSC conducting
a full investigation into the allegations at issue . Under 5 U.S.C. § 1214 (a)(1)(A),
OSC “shall investigate the allegation to the extent necessary to determine whether
there are reasonable grounds to believe that a prohibited personnel practice has
occurred, exists, or is to be taken. ” In this case, OSC had been in possession of
the underlying PIP documents and notice of proposed removal for some time
before the appellant was removed, and indeed had already issued a preliminary
determination letter concerning those matters. 0199 IAF, Tab 28 at 51 -52, 57, 61.
When the appellant forwarded OSC the in formation concerning the removal
decision itself, the OSC attorney reviewed that information and found that there
was nothing in there to warrant further investigation. Id. at 66. We therefore find
that OSC carried out its statutory duty with respect to the appellant’s removal.
Furthermore, after reviewing the appellant ’s removal -related information, the
OSC attorney replied to him as follows:
I have reviewed all of the documents you sent, but unfortunately I do
not think that OSC has enough to demonstra te that your assignments
were not late.[3] However, just because OSC does not take on your
case, does not mean you cannot continue to challenge the removal.
Later today, I will be sending you a closure letter and an Individual
Right of Action. An indivi dual right of action gives you the ability
to file with the Merit Systems Protection Board.
3 The appellant’s removal was based on his alleged failure to complet e or timely
complete his work assignments. 0199 IAF, Tab 8 at 7, 15 -16.
7
Id. Clearly, the OSC attorney handling the appellant’s case contemplated that he
would be able to challenge his removal in an IRA appeal, and had thus exhausted
his administrative remedies with respect to the removal. See Yunus v.
Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001) (findi ng
that t he Board has jurisdiction over an IRA appeal if , among other things, the
appellant has exhausted his ad ministrative remedies before OSC) .
¶12 For these reasons, we find that it was both the appellant’s intention and
OSC’s understanding that he had elected to seek corrective action regarding his
removal. We therefore agree with the administrative judge that the appellant is
precluded from challenging his removal as an otherwise appealable action
pursuant to 5 U.S.C. § 43 03(e) under the provisions of 5 U.S.C. § 7701 . See
5 U.S.C. § 7121(g).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropri ate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law appli cable to your claims and carefully follow all
filing 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.
8
Please read carefully each of the three main possible choi ces of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in genera l. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
9
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt 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 Circ uit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any ot her circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you submit a petition for judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCKINNIS_STEVEN_A_DA_0432_18_0199_I_1_FINAL_ORDER_2066626.pdf | 2023-09-07 | null | DA-0432 | NP |
2,728 | https://www.mspb.gov/decisions/nonprecedential/MCKINNIS_STEVEN_A_DA_1221_18_0200_W_1_FINAL_ORDER_2066633.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN A. MCKINNIS,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DA-1221 -18-0200 -W-1
DATE: September 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan L. Kruger , Esquire, Washington, D.C., for the appellant.
Conor Cleary , Tulsa, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
Member Leavitt recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Whistleblower Protection Act .
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
judg e’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 argu ment is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.1 15). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED
with respect to the issues of protected activity, contributing factor, and the
agency’s affirmative defense, as set forth in ¶¶ 6-15 below , we AFFIRM the
initial decision.
BACKGROUND
¶2 The appellant was a GS -12 Auditor for the agency’s Office of Natural
Resources Revenue. McKinnis v. Department of the Interior , MSPB Docket
No. DA-0432 -18-0199 -I-1, Initial Appeal File (0199 IAF), Tab 1 at 1, 9.3 The
appellant’s major job duties entailed conducting audits and compliance reviews of
3 The instant appeal was joined, for a time, with McKinnis v. Department of the
Interior , MSPB Docket No. DA -0432 -18-0199 -I-1, which was the lead case in the
joinder. McKinnis v. Department of the Interior , MSPB Docket No. DA -1221 -18-0220-
W-1, Initial Appeal File , Tab 9. Much of the evidence pertinent to the instant
individual right of action appeal is contained in that case file.
3
oil and gas leases on Feder al and Indian lands to ensure the proper payment of
royalties. Hearing Recording (HR), Track 1 at 12:40 (testimony of the appellant).
The appellant filed an individual right of action (IRA) appeal, claiming that the
agency took multiple personnel actions against him in retaliation for several
protected disclosures. McKinnis v. Department of the Interior , MSPB Docket
No. DA-1221 -18-0220 -W-1, Initial Appeal File (0200 IAF) , Tab 1, Tab 6 at 4 -7.
¶3 After a hearing, the administrative judge issued an initial decision denying
the appellant’s request for corrective action on the merits. 0200 IAF, Tab 16,
Initial Decision (ID). She found that several of the appellant’s claimed
disclosures were not prot ected, and that the remaining disclosures were either not
contributing factors in the claimed personnel actions or that the agency proved by
clear and convincing evidence that it would have taken the same actions
notwithstanding the disclosures. ID at 7 -26. The appellant has filed a petition for
review, disputing the administrative judge’s analysis of the agency’s affirmative
defense with respect to two of the personnel actions at issue: his placement on a
performance improvement plan (PIP) and the remova l.4 Petition for Review
(PFR) File, Tab 1 at 5 -9. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶4 In the merits phase of an IRA appeal, the appellant has the burden of
proving by preponderant evidence that he engaged in protected activity des cribed
under 5 U.S.C. § 2302 (b)(8) or (b) (9)(A)(i), (B), (C), or (D), and that this activity
was a contributing factor in a personnel action as described under 5 U.S.C.
§ 2302 (a)(2)(A) . Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). If the appellant meets his burden, the Board will order corrective action
4 Also at issue in this appeal were a letter of warning, a grievance decision, a denial of
telework, and a 14 -day suspension. ID at 1 2. The appellant does not challenge the
administrative judge’s findings concerning these personnel actions, and we therefore do
not address these issues on review. See Blackhat v. Department of Health and Human
Services , 117 M.S.P.R. 552 , ¶ 3 n.2 (2012); 5 C.F.R. § 1201.115 .
4
unless the agency proves by clear and convincing evidence that it would have
taken the same personnel action in the absence of the protected activity . 5 U.S.C.
§ 1221 (e); Salerno , 123 M.S.P.R. 230, ¶ 5. However, the Board may only address
the agency’s affirmative defense after the appellant has proven his case in chief.
Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 28 (2016) . For the
reasons set forth below, we find that the appellant has not proven his case.
¶5 The administrative judge addressed the following alleged protected activit y
in her initial decision: (1) c omplaints to the agency’s O ffice of Inspector Ge neral
and the Federal Labor Relations Authority, ID at 7 -9; (2) disclosures during a
grievance regarding the agency’s alleged violation of travel regulations and the
Family and Medical Leave Act (FMLA), ID at 9; (3) disclosures regarding the
agency’s alleg ed violation of its leave policy, ID at 10; and (4) equal employment
opportunity (EEO) complaints and participation in an administrative
investigation, ID at 10 -11. The administrative judge found that the appellant only
proved with respect to activities ( 2) and (4) that he engaged in protected activity
that was exhausted before the Office of Special Counsel . ID at 7 -11. She also
found that this protected activity was a contributing factor in the PIP and the
removal. ID at 12 -15. Although neither party challenges these findings per se,
under the particular circumstances of this case, we find it appropriate to assess
them further. See 5 C.F.R. § 1201.115 (e).
¶6 Regarding activity (2), the administrative judge found that the appellant
filed a grievance on July 23, 2016, in which he disclosed that the agency violated
FMLA and travel regulations. ID at 9; 0199 IAF, Tab 13 at 50 -54. She further
found that the appellant’s beliefs in this rega rd were reasonable and therefore the
disclosures made during the grievance were protected under 5 U.S.C.
§ 2302 (b)(8). Id. However, it is well established that disclosures made solely in
the context of a grievance are not protected under 5 U.S.C. § 2302 (b)(8). Serrao
v. Merit Systems Protection Board , 95 F.3d 1569 , 1575 -76 (Fed. Cir. 1996) ;
Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 10 (2016). Nor is
5
there sufficient information for us to conclude that the appellant’s grievance
sought to remedy an alleged violation of 5 U.S.C. § 2302 (b)(8), so as to be
covered under 5 U.S.C. § 2302 (b)(9)(A)(i).5 0199 IAF, Tab 13 at 50 -54. We
therefore find that the appellant’s July 23, 2016 grievance was protected under
5 U.S.C. § 2302 (b)(9)(A)(ii), and so cannot serve as the basis for an IRA appeal.
See Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492 , ¶ 8 (2016) ;
Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7 (2013) .
¶7 Regarding activity (4), the administrative judge found that the appellant
engaged in protected activity by filing multiple EEO complaints and participating
in an administrative investigation concerning the working conditions in his office.
ID at 10 -11; 0199 IAF, Tab 8 at 11, Tab 12. Specifically, she found that the
allegations of discrimination and hostile work environment in his EEO complaints
and the disclosure s that he made during the investigation concerning various
forms of wrongdoing in the workplace constituted protected disclosures under
5 U.S.C. § 2302 (b)(8). ID at 10 -11. However, as discussed a bove in connection
with the appellant ’s grievance, it is well settled that disclosures made solely in
the context of an EEO complaint are not protected under 5 U.S.C. § 2302 (b)(8).
Spruill v. Meri t Systems Protection Board , 978 F.2d 679 , 690 (Fed. Cir. 1992) ;
Redschlag v. Department of the Army , 89 M.S.P.R. 589 , ¶ 82 (2001). Rather, they
are protected under 5 U.S.C. § 2302 (b)(1) and (b)(9)(A)(ii). See Mata v.
Department of the Army , 114 M.S.P.R. 6 , ¶ 9 n.3 (2010) . We therefore find that
the appellant’s EEO complaints and the disclosures contained therein cannot
serve as the basis for an IRA appeal.6 See Fisher v. Department of Defense ,
52 M.S.P.R. 470 , 474 (1992) .
5 In his grievance, the appellant su rmised that the letter of reprimand that he was
grieving “would appear to be as a result of something per sonal or in retaliation.”
0199 IAF, Tab 13 at 54. However, he did not specify that he believed the letter of
reprimand was in retaliation for whistle blowing.
6 An EEO complaint may be protected under 5 U.S.C. § 2302 (b)(9)(A)(i) if the
complaint sought to remedy a violation of 5 U.S.C. § 2302 (b)(8). Bishop v. Department
6
¶8 The appellant ’s participation in the administrative investigation, however,
did not constitute the exercise of a n appeal, complaint, or grievance right under
5 U.S.C. § 2302 (b)(9)(A), and the disclosures that he made during that
investigation are therefore not barred as a matter of law from constituting
protected disclosures under 5 U.S.C. § 2302 (b)(8). Further, the administrative
judge found, and neither party disputes, that the appellant made protected
disclosures during his March 8, 2017 investiga tive interview. ID at 10 -11;
0199 IAF, Tab 12 at 9 -12. For these reasons, we find that the only protected
activity at issue in this IRA appeal is the appellant ’s March 8, 2017 disclosure,
which was protected under 5 U.S.C. § 2302 (b)(8)(A).7
¶9 As relevant here, in her contributing factor analysis, the administrative
judge found that the deciding official in the appellant’s removal had no actual
knowledge of the appellant’s protected activity. ID at 14 -15. This finding is both
undisputed and supported by the record. HR, Track 4 at 1:40, 3:30 (testimony of
the deciding official). Nevertheless, the administrative judge found that the
appellant’s first -level supervisor, who placed the appellant on a PIP and proposed
his removal “did not deny that she was aware the appellant participated in the
internal investigation.” ID at 15. Thus, the administrative judge found that the
appellant established that his protected activity was a contributing factor in these
of Agriculture , 2022 MSPB 28, ¶¶ 15-16. There is no indication in this case that the
appellant’s EEO complaints, which he did not submit for the record, sought to remedy
any violations of 5 U.S.C. § 2302 (b)(8). See 0199 IAF, Tab 8 at 11, Tab 22 at 5 -6,
Tab 31 at 4 -5, 50-51, 80 -83; 0200 IAF, Tab 6 at 127 -34, 137 -38.
7 This activity might have been protected also under 5 U.S.C. § 2302 (b)(9)(C) as a
disclosure to an agency component responsible for internal inve stigation or review.
The relevant portion of this provision, however, did not become law until December 12,
2017, postdating all personnel actions at issue in this appeal except for the removal
decision itself. National Defense Authorization Act of 2018, Pub. L. No. 115 -91
§ 1097(c)(1) , 131 Stat. 1283 , 1618 (2017) . Th at provision is not retroactive. Edwards
v. Department of Labor , 2022 MSPB 9, ¶¶ 29-33. In any event, because the appellant’s
March 8, 2017 activity was protected under 5 U.S.C. § 2302 (b)(8 ), we do not reach the
issue of whether it was also protected under 5 U.S.C. § 2302 (b)(9)(C).
7
personnel actions. ID at 15 -16; see Greenup v. Department of Agriculture ,
106 M.S.P.R. 202 , ¶ 11 (2007) (finding that contributing factor may be
established by showing that an individual with actual knowledge of the protected
disclosure influenced the personnel action, even if that individual did not
personally affect the action).
¶10 However, based on our review of the hearing recording, we find that the
first-level supervisor did deny that she was aware that the appellant participated
in the internal investigation. She testified that she did not receive a copy of the
investigative report and that s he did not know the identity of anyone who
participated in the investigation. HR, Track 5 at 1:37:00, 1:50:40 (testimony of
the appellant’s first-level supervisor). The initial decision makes no mention of
this testimony, and it appears that the administ rative judge overlooked it. We
find that the first -level supervisor’s unrebutted, unimpeached testimony, given
under oath and credible on its face , is sufficient to establish that she did not, in
fact, have any knowledge that the appellant engaged in prot ected activity by
making disclosures to the agency investigator.8 See Aldridge v. Department of
Agriculture , 110 M.S.P.R. 21, ¶ 9 (2008) (“Sworn statements that are not rebutted
are competent evidence of the matters asserted therein .”); Hatcher v. Office of
Personnel Management , 39 M.S.P.R. 340 , 345 n.4 (1988) (finding that the
appellant ’s sworn, unrebutted testimony constituted “the only evidence, and
therefore preponderant evidence, of her claim”). Because the appellant did not
8 Even if the first -level supervisor had not denied knowledge of the appellant’s
protected activity, we question whether this alone would have been enough to establish
the c ontributing factor element. The burden is on the appellant to prove contributing
factor; the burden is not on the agency to disprove it. See McCarthy v. International
Boundary and Water Commission , 116 M.S.P.R. 594 , ¶ 39 (2011), aff’d , 497 F. App’x 4
(Fed. Cir. 2012) .
The supervisor’s testimony is consistent with the record evidence. She was not among
the individuals copied on the report of investigation , and the investigator stressed in her
report that the report itself should be disclosed on a need -to-know basis and only
higher -level officials should be privy to the witness statements. 0199 IAF, Tab 12 at 4,
7-8.
8
prove that either his first -level supervisor or the deciding official in the removal
had actual or constructive knowledge of his protected disclosure, he failed to
prove that his disclosure was a contributing factor in either the PIP or the removal
under the knowledge/timing test of 5 U.S.C. § 1221 (e)(1) . See Powers v.
Department of the Navy , 97 M.S.P.R. 554, ¶ 21 (2004).
¶11 Nevertheless, the inquiry does not end there because the knowledge/timing
test is only one way to prove contributing factor. Powers v. Department of the
Navy , 69 M.S.P.R. 150 , 156 (1995) . We will now consider other evidence, such
as that pertaining to the str ength or weakness of the agency’ s reasons for taking
the personnel action s, whether the whistleblowin g was personally directed at the
officials involved , and whether these individuals had a desire or motive to
retaliate against the appellant. Id.
¶12 As explained in the initial decision , the agency had strong reasons for
placing the appellant on a PIP and subsequently removing him for
performance -based reasons. ID at 23 -26. In order for the appellant to h ave been
minimally successful under critical element 1, “Sustainably Manag[ing ] Energy,
Water, and Natural Resources,” he would have had to complete the expected
quantity of work through the specified stage throughout the fiscal year at least
51% of the time. 0199 IAF, Tab 9 at 61-63. However, at the time his supervisor
placed him on the PIP, 9 months into the 2017 performance year, his timely
completion rate was 0%. 0199 IAF, Tab 8 at 15, Tab 10 at 7 3-79. The
appellant ’s timely completion rate during the 90 -day PIP period was only 10%,
for a n aggregate timely completion rate of 3.9% for the 2017 performance year.
0199 IAF, Tab 8 at 15 -16. We find that under these circumstances, where by the
appellant failed to achieve minimally successful performance in a critical element
9
by such a wide margin, the agency ’s evidence in support o f its actions was
strong.9
¶13 The appellant disputes these findings on review, arguing tha t he routinely
received “superior” performance evaluations under previous supervisors, his
supervisor in performance year 2017 failed to consider his collateral duties at the
Diversity and Inclusion Leadership Council (DILC) under critical element 1 as
his previous supervisor had done , his performance was similar to that of
coworkers who were not placed on a PIP, and it was impossible for him to timely
complete some of his work, both because of its nature and because of his
supervisor’s active obstruction. PFR File, Tab 3 at 6 -9. We have considered
these arguments, but we find them unpersuasive. W e find that the appellant ’s
performance in prior years is not particular ly probative of his performance during
the time period at issue. Nor are we persuaded by the appellant ’s argument that
his DILC duties should have been considered under critical element 1. Critical
element 1 is based on a numerical standard for timely co mpletion of Auditor
work . 0199 IAF, Tab 9 at 61 -63. The appellant has not explained how his DILC
duties should have affected the calculation under that standard . Rather , it appears
on its face that the supervisor’s decision to consider the appellant ’s DILC duties
under critical element 4 as support for a special project was more appropriate.
0199 IAF, Tab 9 at 74 ; HR, Track 5 at 47:4 0 (testimony of the appellant ’s
9 After the initial decision in this case was issued, the United States Court of Appeals
for the Federal Circuit issued Santos v. National Aeronautics and Space Administration ,
990 F.3d 1355 , 1361 -63 (Fed. Cir. 2021), holding that, under 5 U.S.C. chapter 43, the
agency bears the burden of proving that the appellant’s perf ormance was unsatisfactory
not just during the PIP but also during the period leading up to the PIP. In other words,
the agency is required “ to justify a challenged post -PIP-based removal by establishing
the propriety of the PIP in the first instance. ” Id. at 1361. Likewise, an administrative
judge is required to consider th e issue of pre -PIP performance in connection with a
claim that a chapter 43 adverse action was motivated by discrimination or retaliation.
Santos , 990 F.3d at 1362; Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶ 31 n.8. We find that the initial decision in this appeal satisfies that requirement.
ID at 23 -25.
10
first-level supervisor) . Furthermore, although it may be true that the appellant ,
like tw o of his coworkers, completed only one compliance review during the
relevant time period for which the subject company paid royalties , PFR File,
Tab 1 at 7 -8; 0199 IAF, Tab 31 at 63, there is no evidence of what, if any, bearing
this might have had on the objective numerical calculation under critical
eleme nt 1 for these two coworkers. Finally, even taking as true the appellant ’s
explanations of why he was unable to complete certain portions of his
assignments, we are unable to conclude that his performanc e in critical element 1
would have been minimally successful even in the absence of these difficulties.
PFR File, Tab 1 at 8 -9.
¶14 Regarding retaliatory motive, there is no indication that the appellant ’s
disclosures during the investigation had any adverse consequences for either his
first-level supervisor or the deciding official .10 See Runstrom v. Department of
Veterans Affairs , 123 M.S.P.R. 169 , ¶ 17 (2016) . Although the appellant ’s
first-level supervisor would naturally have had some retaliatory mot ive to the
extent that the appellant accused her of wrongdoing, PFR File, Tab 12 at 10 -12;
Runstrom , 123 M.S.P.R. 169 , ¶ 17 , again, there is no indication that the first -level
supervisor or the deciding official were aware of the appellant ’s participation in
the investigation, much less what he said during it. The appellant ’s arguments on
petition for review focus on his firs t-level supervisor’s retaliatory motive for his
grievance, his EEO complaints, and unspecified “lawsuits.” PFR File, Tab 1 at 9.
However, as explained above, the only protected activity at issue in this appeal is
the appellant ’s participation in the inte rnal investigation. Supra ¶¶ 5-8.
Considering all of the relevant evidence, w e find that any retaliatory motive on
the part of the officials involved in the PIP and the removal was slight at best,
10 The report of investigation identified the appellant as one of the main sources of
strife in the office. 0199 IAF, Tab 12 at 7 -8. The investigator did recommen d
additional training for the appellant’s first -level supervisor, but it appears that this was
chiefly because of her troubles in handling some of the “difficult people” under her
supervision. Id. at 12.
11
and we conclude that the appellant has not established that his protected activity
was a contributing factor in either his PIP or his removal. See Powers ,
97 M.S.P.R. 554 , ¶ 22.
¶15 Where, as here, the appellant in an IRA appeal has failed to prove his case
in chief, the inquiry stops there. The Board may not proceed to adjudicate the
agency’s affirmative defense . Scoggins , 123 M.S.P.R. 592 , ¶ 28 . We therefore
vacate the administrative judge ’s findings with respect to this issue. ID at 16 -26;
see Scoggins , 123 M.S.P.R. 592 , ¶ 28. Because the appellant’s petition for review
pertains solely to this issue, the arguments therein are immaterial to the outcome
of the appeal, and there is no basis to grant the petition. See 5 C.F.R. § 1201.115 .
NOTICE OF APPEAL RIGHTS11
The initial decision, as supplemented by this Fi nal 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 Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts wi ll rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
11 Since the issuance of the initial decision in thi s matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
13
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
webs ites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
14
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 pe tition 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 judic ial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. P ub. L. No. 115 -195,
132 Stat. 1510.
15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the 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 website s, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCKINNIS_STEVEN_A_DA_1221_18_0200_W_1_FINAL_ORDER_2066633.pdf | 2023-09-07 | null | DA-1221 | NP |
2,729 | https://www.mspb.gov/decisions/nonprecedential/PROA_FRANK_CH_4324_18_0185_I_1_FINAL_ORDER_2066650.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FRANK PROA,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER S
CH-4324 -18-0185 -I-1
CH-752S -18-0188 -I-1
CH-1221 -18-0363 -W-1
DATE: September 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Frank Proa , Columbia, Missouri, pro se.
Elizabeth Handelsman , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has fi led petition s for review of three initial decision s, all of
which dismissed his appeals for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains errone ous 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).
2
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 d ue diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). We JOIN the se appeals because doing so will expedite processing
without adversely affecting the interests of the parties. A fter fully considering
the filings in these appeal s, we conclude that the petitioner has not established
any basis under section 1201.115 for granting the petition s for review. Therefore,
we DENY the petition s for review and AFFIRM the initial decision s, which are
now the Board’s final decision s. 5 C.F.R. § 1201.113 (b). We FORWARD the
appellant’s potential claim under the Veterans Employment Opportunities Act of
1998 (VEOA) to the regional office for adjudication.
BACKGROUND
¶2 The appellant , who worked as a GS -11 Chemist, submitted a claim to the
Department of Labor (DOL) in which he challeng ed the agency’s decision that he
was not eligible under the Uniformed Services Employment and Reemployment
Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA)
for employment service credit for the period of time he attended college. Proa v.
Department of the Interior , MSPB Docket No. CH-4324 -18-0185 -I-1, Initial
Appeal File (0185 IAF), Tab 1 at 5-6. On January 25, 2018, DOL determined that
he was not eligible for service credit under USER RA. Id. The appellant filed a
Board appeal challenging the agency’s decision on January 26, 2018. 0185 IAF,
Tab 1.
¶3 On April 2, 2018, without holding his requested hearing, the administrative
judge dismissed his appeal for lack of jurisdiction. 0185 IAF , Tab 27 , Initial
3
Decision (0185 ID) . She found that the appellant did not allege that his military
status or any action he took to enforce a protection afforded to him under
USERRA was a factor in the agency’s decision to deny him service credit and
that, absent an otherwise appealable action, the Board could not adjudicate his
discrimination claims. 0185 ID at 4 -5. The appellant has filed a petition for
review of this initial decision with an accompanying supplement , the agency has
responded in opposit ion to his petition, and the appellant has replied. Proa v.
Department of the Interior , MSPB Docket No. CH-4324 -18-0185 -I-1, Petition for
Review (0185 PFR) File, Tabs 1 -2, 5-6.
¶4 Meanwhile, on January 31, 2018, the appellant filed another Board appeal
in which he challenged the agency’s decision to suspend him for 14 days. Proa v.
Department of the Interior , MSPB Docket No. CH-752S -18-0188 -I-1, Initial
Appeal File (0188 IAF), Tab 1. While the appeal was pending, the agency
initially proposed the appellan t’s removal on March 6, 2018, and then
subsequently rescinded the proposal on March 9, 2018. 0188 IAF, Tab 16
at 57-66. On March 28, 2018, the administ rative judge also dismissed th e appeal
challenging the 14 -day suspension for lack of jurisdiction. 0188 IAF, Tab 32,
Initial Decision (0188 ID). She found that the appellant failed to demonstrate
that he was s ubjected to an action that could be directly appealed to the Board,
and that he also did not establish individual right of action (IRA) jurisdiction as
he failed to even allege that he filed an Office of Special Counsel (OSC)
complaint regarding the matter . 0188 ID at 2 -4. The appellant also has filed a
petition for review in this appeal, the agency has responded, and the appellant has
replied. Proa v. Department of the Interior , MSPB Docket No. CH-752S -18-
0188 -I-1, Petition for Review ( 0188 PFR ) File, Tabs 1, 3 -4.
¶5 The agency proposed the appellant’s removal again on April 24, 2018.
Proa v. Department of the Interior , MSPB Docket No. CH-1221 -18-0363-W-1,
Initial Appeal File ( 0363 IAF ), Tab 1 at 8-18. On April 30, 2018, while his other
petitions for review were still pending, the appellant filed a third appeal in wh ich
4
he challenged the agency’s proposed removal . 0363 IAF , Tab 1 . In a June 13,
2018 initial decision, t he administrative judge also dismissed this appeal for lack
of jurisdiction, stating that proposed removal s are not personnel actions directly
appealable to the Board, the appellant failed to establish jurisdiction to the extent
he was attempting to file an IRA appeal because he did not allege or show that he
exhausted his administrative remedies regarding the proposed removal with OSC,
and that, absent an otherwise appealable action, she could not hear his
discrimination claims. 0363 IAF, Tab 10, Initial Decision ( 0363 ID ) at 4 -5. The
appellant also has filed a pet ition for review regarding this appeal, the agency has
responded in opposition to his petition, and the appellant has replied.2 Proa v.
Department of the Interior , MSPB Docket No. CH-1221 -18-0363 -W-1, Petition
for Review ( 0363 PFR ) File, Tabs 1, 3 -4.
¶6 The appellant has submitted multiple documents with his pleadings on
review in the three appeals , which we have not considered with respect to the
appeals in which they were submitted . The documents that the appellant has
submitted on review include the following: the proposals to remove him, email
correspondence with the agency from 2016 to 2018, agency policies and
guidance, including delegating examining policy, departm ental policy on category
rating, delegations manual, and guidance for e diting personnel data, an
after -hours sign -in sheet, the decision imposing his 14 -day suspension, his
response to the proposed removal, a job analysis interview, position descriptions,
an evaluation that his position was properly graded, the agency’s request for
exception to the hiring controls to fill a Chemist GS -1320 -09 positi on for a 4 -year
term, a January 2018 furlough notice due to the lapse in Federal funding , a letter
2 The agency imposed the appellant’s removal on July 17, 2018. Proa v. Department of
the Inter ior, MSPB Docket No. CH-0752 -18-0504 -I-1, Initial Appeal File, Tab 1
at 12-20. The appellant appealed his removal to the Board, and his petition for review
of the initial decision affirming his removal is pending and will be resolved in a
separate decisio n.
5
of warning that the agency issued him on the basis o f unprofessional conduct, a
May 2017 record of a human resources meeting, the Standard Form 50 reflecting
his appointment in August 2013 , and the agency’s decision imposing his removal.
0185 PFR File, Tab 1 at 26 -39, Tab 2 at 4-14, Ta b 6 at 7 -84; 0188 PFR File,
Tab 1 at 26-71, Tab 4 at 7-49; 0363 PFR File, Tab 1 at 8 -28, Tab 4 at 4 -12.
¶7 The Board will generally not consider evidence submitted for the first time
on review absent a showing that the documents and the in formation contained in
the documents were unavailable before the record closed below despite due
diligence and the evidence contained therein is of sufficient weight to warrant an
outcome different from that of the initial decision. See Cleaton v. Departm ent of
Justice , 122 M.S.P.R. 296 , ¶ 7 (2015), aff’d , 839 F.3d 1126 (Fed. Cir. 20 16). We
do not consider these documents with respect to the appeals in which the
appellant submitted them because they are either not new, or , even if they are
new, they are not material to the issue of whether the Board has jurisdiction in the
respective appeals .
DISCUSSION OF ARGUME NTS ON REVIEW
MSPB Docket No. CH-4324 -18-0185 -I-1
We affirm the dismissal of the appellant’s USERRA claim for lack of
jurisdiction as well as the finding that, absent an otherwise appealable
action, the Board lacks jurisdiction over his other claims.
¶8 The administrative judge correctly found that the appel lant did not allege
that his military status or any action he took to enforce a protection afforded to
him under USERRA was a factor in the agency’s action and that, absent an
otherwise appealable action, the Board could not adjudicate his discrimination
claims. 0185 ID at 4 -5. The appellant reasserts that the agency has violated his
rights under USERRA and alleges a violation of the Veterans Employment
Opportunities Act of 1998 (VEOA) . 0185 PFR File, Tab 1 at 4 -5.
¶9 To establish Board jurisdiction over a claim arising under 38 U.S.C.
§ 4311 (a), an appellant must ma ke nonfrivolous allegations of the following :
6
(1) he performed duty or has an obligation to perform duty in a uniformed service
of t he United States; (2) the agency denied him initial employment,
reemployment, retention, promotion, or any benefit of employment; and (3) the
denial was due to the performance of duty or obligation to perform duty in the
uniformed service. See Hau v. Depa rtment of Homeland Security , 123 M.S.P.R.
620, ¶ 11 (2016) , aff’d sub nom . Bryant v. Merit Systems Protection Board ,
878 F.3d 1320 (Fed. Cir. 2017) . Here , we agree with the administrative judge
that the appellant did not nonfrivolously allege that his military status or any
action he took to enforce a protection afforded under USERRA was a factor in the
agency’s action denying him eligibility for employment service credit for the
period he was attending college . 0185 ID at 4. Instead, the appellant alleged that
the agency denied him service credit for a period of time during which he
attended school , an argument that does not relate to his military status . Cf.
Crawford v. Department of Transportation , 95 M.S.P.R. 44 , ¶ 3 (2003) ( citing the
administrative judge’s finding that the appellant established jurisdiction over his
USERRA claim when he asserted that the agency denied him a benefit of
employment, i.e., creditable service for leave accrual purposes , because of his
prior military service ) (emphasis added) , aff’d , 373 F.3d 1155 (Fed. Cir. 2004) .
Further, any claims that the agency violated his veterans’ preference rights do not
constitute a nonfrivolous allegation of jurisdiction under USERRA because, to
allege a claim of discrimination under USERRA, an employee must allege that he
was treated more harshly than non -veterans as oppos ed to that he was not treated
better than non -veterans , as required by VEOA . See Fahrenbacher v. Department
of the Navy , 85 M.S.P.R. 500 , ¶ 18 (2000) , aff’d sub nom. , Sheehan v. Department
of the Navy , 240 F.3d 1009 (Fed. Cir. 2001) .
¶10 The appellant presents a variety of other arguments , such as that the agency
retaliated against him for equal employment opportunity (EEO) activity , engaged
in intentional deception, manipulat ed his position description, and excluded
evidence. 0185 PFR File, Tab 1 at 4 -23. Further, he asserts that a 27 -year-old
7
was hired for his position thus demonstrating that the agency discriminates
against veterans, the evidence underlying his reprimand and suspension are
unsubstantiated, the agency failed to properly pay him for all of the hours that he
worked and de nied him hazard pay , and his duties were improperly reassigned .
Id. None of his arguments provide a reason for disturbing the dismissal for lack
of jurisdiction . Specifically, a bsent an otherwise appealable action, the Board
will not consider the appell ant’s discrimination and retaliation claims. Wren v.
Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d , 681 F.2d 86 7, 871 73
(D.C. Cir. 1982). Further, the appellant’s other arguments either constitute mere
disagreement with the dismissal for lack of jurisdiction or w ere not asserted
below such that the Board may not consider them . See Crosby v. U.S. Postal
Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to d isturb the
administrative judge’ s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Banks v.
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (stating 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 desp ite the party ’s due diligence) .
We forward the appellant’s potential VEOA claim to the regional office for
further adjudication.
¶11 Below, and on review, the appellant has asserted that the agency violated
his veterans’ preference , including assertions that the agency discrimin ates
against veterans by failing to consider their education and experience and that it
failed to hire him for position ATL -2014 -0720 . 0185 IAF, Tab 2 at 17 at 33-40,
45-46, Tab 5 at 16, Tab 14 at 5, Tab 17 at 1; 0185 PFR File, Tab 1 at 5, 7 -9,
23-24. When an appellant raises a claim in an appeal either by checking the
appropriate box in an appeal form, identifying an affirmative defense by name,
such as “race discrimination,” “h armful procedural error,” or by alleging facts
that reasonably raise such a claim, the administrative judge must address the
8
claims in any close of record order or prehearing conference summary and order.
Gath v. U.S. Postal Service , 118 M.S.P.R. 124, ¶ 11 (2012). Furthermore, an
appellant must receive explicit information on w hat is required to establish an
appealable jurisdictional issue. Burgess v. Merit Systems Protection Board ,
758 F.2d 641 , 643 -44 (Fed. Cir. 1985). Here, the administrative judg e did not
address the appellant’ s potential VEOA claim during the initial appeal and did not
provide the appellant with the approp riate jurisdictional standard.
¶12 To establish Board jurisdiction over a VEOA veterans’ preference claim, an
appellant must ( 1) show that he exhausted his remedy with DOL and (2) make
nonfrivolous allegations that (i) he is a preference eligible within the meaning of
VEOA, (ii) the action(s) at issue took place on or after the October 30, 1998
enactment date of VEOA, and (iii) t he agency violated his rights under a statute
or regulation relating to v eterans’ preference. 5 U.S.C. § 3330a (a)(1)(A), (d);
Goodin v. Department of the Army , 123 M.S.P.R. 316 , ¶ 8 (2016). Because the
appellant has raised what appears to be a potential VEOA claim, we forward it to
the regional office for docketing as a new appeal.
MSPB Docket No. CH-752S -18-0188 -I-1
¶13 Next, we find that the appellant has failed to provide a basis for disturbing
the initial decision in his 14 -day suspension appeal . As previously stated, the
administrative judge also dismissed this appeal for lack of jurisdiction because
she found that the appellant failed to demonstrate that he was subjected to an
appealable action and he also did not establish IRA jurisdiction. 0188 ID at 2 -4.
We agree with the administrative judge that the appellant may only challenge his
suspension before the Board if it is more than 14 days and thus the Board lacks
jurisdiction over this challenge as a direct Board appeal . 5 U.S.C. § 7512 (2);
Cremeans v. U.S. Postal Service , 88 M.S.P.R. 277 , ¶ 5 (2001); 5 C.F.R.
§ 1201.3 (a)(1).
¶14 The appellant also challenges both the prior reprimand and the prior
proposed removal and argues that his suspension constituted a reduction in his
9
pay, he was sub jected to a reduction in force (RIF) , and the agency manipulated
his position description such that he would not qualify for a higher grade.
0188 PFR File, Tab 1 at 10-11, 13, 15, 17, 21 , 23. However, as described below,
none of these arguments support a finding that the appellant was subj ected to an
action within the Board’s jurisdiction.
¶15 A reprimand is not an action that is dire ctly appealable to the Board. See
5 U.S.C. § 7512 . Additionally , the Board lacks jurisdiction over action s that were
proposed but have not been effected. See Cruz v. Department of the Navy ,
934 F.2d 1240 , 1243 -44 (Fed. Cir. 1991) (en banc) . Further , to the extent that the
appellant is challenging his nonselection because of the agency’s alleged
manipulation of his position description, such a nonselection is generally not
appealable to the Board absent another basis for review . Kazan v. De partment of
Justice , 112 M.S.P.R. 390, ¶ 6 (2009). Further, although the appellant has argue d
that he was possibly subjected to appealable actions such as a reduction in pay or
a RIF, he has not provided evidence to support these assertions.
¶16 We also agree that the appellant has not established jurisdiction over this
appeal as an IRA appeal. The appellant asserts that the administrative judge
failed to consider that he made a protected disclosure to OSC and engaged in
protected activity in making the disclosure. 0188 PFR File, Tab 1 at 5-6; see
5 U.S.C. § 2302 (b)(8),(9) (C). However, to establish jurisdiction in an IRA
appeal, absent an otherwise appealable action, an employee must first establish,
by preponderant evidence , that he exhausted his administrative remedy before
OSC.3 See Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016).
As the administrative judge stated, the appellant did not prove that he exhausted
his administrative remedy prior to filing this appeal and thus the Board lacks
3 A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
10
jurisdiction over his claim of retaliation for his disclosure and activity .4 0188 ID
at 3-4.
MSPB Docket No. CH-1221 -18-0363 -W-1
¶17 As previously discussed, the administrative judge also dismissed the appeal
regarding the proposed removal for lack of jurisdiction, stating that proposed
removals are not personnel actions directly appealable to the Boar d, the appellant
failed to establish jurisdiction to the extent he was attempting to file an IRA
appeal because he did not allege or show that he exhausted his administrative
remedies regarding the proposed removal with OSC, and that, absent an otherwise
appealable action, she could not hear his discrimination claims. 0363 ID at 4-5.
The administrative judge noted that the appellant checked the boxes for the
following personnel actions: removal; reduction in grade or pay; separation,
demotion, or furloug h for more than 30 days by RIF; denial of within -grade
increase; negative suitability determination; other action or decision, “Reductions
in Pay and Labeling” ; suspension for more than 14 days; furlough of 30 days or
less; and failure to restore/reemploy/ reinstate or improper
restoration/reemployment/reinstatement . 0363 IAF , Tab 1 at 3; 0363 ID at 2.
However, she determined that, because he listed April 24, 2018 as the date that he
received the agency’s final decision letter, he was referring to the Apri l 24, 2018
proposed removal. 0363 ID at 3; 0363 IAF , Tab 1 at 3, 8-18. Additionally, she
found that the appellant did not produce any evidence that the agency took any of
the other actions against him. 0363 ID at 3.
4 The appellant states that the agency is requiring him to make a deposit to receive
credit in his annuity for his military service and that its actions have had a negative
effect on his retirement savings. 0188 PFR File, Tab 1 at 2 2-24. He cites 5 U.S.C.
§§ 8331 , 8347, 8461, which concern retirement and the Federal Employees’ Retirement
System. Id. at 22. However, he has not i dentified any statute, regulation, or other
authority that would give the Board jurisdiction over his challenge to either the
agency’s requirement that he pay the deposit or the effect of its actions on his
retirement.
11
¶18 We agree that the Board lacks jurisdiction over this appeal as an IRA
appeal. OSC’s March 1, 2018 closeout letter , which was issued prior to the
March 6, 2018 and April 24, 2018 proposed removal s, reflects the appellant’s
allegations that the agency discr iminated against him on the basis of his status as
a veteran and that agency officials refused to allow him to dispose of some
acids/mixed waste in the manner he deemed least hazardous. 0188 IAF, Tab 16
at 57-65; 0363 IAF , Tab 1 at 8-18, 39-40. The lette r did not provide Board
appeal rights. Id. Although the appellant contacted OSC, he did not assert that
the agency took any personnel actions in retaliation for any protected disclosures
or whistleblowing activity. Id. Further, OSC issued this letter p rior to the
proposed removals. Thus, we agree with the administrative judge’s decision to
dismiss this appeal on the basis that the appellant failed to exhaust his
administrative remedy before OSC. 0363 ID at 4-5; see Clemente v. Department
of Homeland S ecurity , 101 M.S.P.R. 519, ¶ 13 (2006) (finding that the appellant
did not exhaust his administrative remedy because he did not alle ge
whistleblower reprisal before OSC with respect to the potential personnel actions
he raise d in th e appeal, which would have given OSC a sufficient basis to pursue
an investigation that might have led to corrective action).5
¶19 On review, the appellant requ ests that the Board evaluate the agency’s
hiring actions and selection process , including its reduction in his grade upon his
initial employment , denial of a promotion , and disparate treatment such that he
could not qualify for a GS -13/14 position . 0363 PFR File, Tab 1 at 4 , 7.
However, the Board lacks jurisdiction over claims regarding the proper
classification of the appellant’s position. Ellis v. Department of the Navy ,
117 M.S.P.R. 511 , ¶ 10 (2012). Additionally, absent certain exceptions, the
5 The Whistleblower Protection Act ha s been amended several times, including by the
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112 -19, 126 Stat.
1465. Subsequent changes in the law do not affect the relevant holding in Clemente .
12
Board generally does not have jurisdiction over the nonselection for a specific
position. See Kazan , 112 M.S.P.R. 390 , ¶ 6.
¶20 The appellant also asserts that the agency has applied RIFs to veterans in
employment, grading , and selection . 0363 PFR File, Tab 1 at 4. However, he has
not described any such action. He also argues that the agency failed to properly
record his schedule, refused to provide him hazard pay, sought to improperly
garnish his wages, refused to apply its redress policy , and d educted 4.3 hours
from his pay. Id. at 4 -7. None of these claims refer to appealable actions , and
thus, we cannot consider them .6 See Maddox v. Merit Systems Protection Board ,
759 F.2d 9 , 10 (Fed. Cir. 1985) (stating that the Board’s jurisdiction is limited to
those matters over which it has been given jurisdiction by law, rule, or
regulation).
¶21 Additionally , we agree that, absent an otherwise appealable action, the
Board do es not have jurisdiction to consider the appellant’s claims of
discrimination . 0363 ID at 5; see Wren , 2 M.S.P.R. at 2. The appellant’s
remaining arguments, such as his statement that the agency intentionally denied
6 The appellant also argues that his previo us suspension actually lasted 19 days because
he was not permitted to report to work on the weekend, or 2.5 days prior to the official
beginning of the suspension , and he had no email access for a total of 20 days .
0363 PFR File, Tab 1 at 4, 7. In the 01 88 appeal, the administrative judge determined
that the Board lacked jurisdiction over his challenge to the 14 -day suspension as the
Board does not have jurisdiction over a suspension that is not more than 14 days .
0188 ID at 2 -3. The appellant cannot re litigate this jurisdictional matter , as it was
already decided in another appeal. See Hau, 123 M.S.P.R. 620, ¶ 13.
Further, even if we did reconsider the appellant’s allegation, we would not find it
persuasive. A “suspension” is the temporary placement of an agency employee in a
nonpay, nonduty status; this definition covers not just unpaid disciplinary absences but
also other types of enforced leave imposed on an employee against his will. See Engler
v. Department of the Army , 121 M.S.P.R. 547 , ¶ 6 (2014). When, as here, the appellant
has not lost pay or a benefit of employment by being prohibited from working on the
weekend, the agency has not sus pended him during that period. Id., ¶ 8 (finding that
the agency’s switching of an optional day o ff under a compressed work schedule d id not
equate to a suspension because the appellant was not losing any pay or benefit of
employment by having to take an alternate day off ).
13
him process and records and it owes hi m a lump sum , do not provide a basis for
disturbing th is initial decision.7 0363 PFR File, Tab 1 at 4 -6; see Crosby ,
74 M.S.P.R. at 106.
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 b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
7 To the extent that the appellant is alleging error below regarding the agenc y’s failure
to provide records to him, he has failed to describe how any such failure affected the
outcome of his appeals. Thus, this allegation does not provide a basis for disturbing the
initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984) (stating that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision) .
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 a ppropriate in any matter.
14
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given 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 tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
15
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no lat er than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed t hrough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you rece ive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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:
16
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition 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 deci sion. 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 t he President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of comp etent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk o f the Board | PROA_FRANK_CH_4324_18_0185_I_1_FINAL_ORDER_2066650.pdf | 2023-09-07 | null | S | NP |
2,730 | https://www.mspb.gov/decisions/nonprecedential/LYNN_DANIEL_SF_0714_17_0702_R_1_FINAL_ORDER_2066692.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIEL LYNN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0714 -17-0702 -R-1
DATE: September 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Nadine Scott , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The Board issued a final decision in this appeal on July 12, 2023 . Lynn v.
Department of Veterans Affairs , MSPB Docket No. SF-0714 -17-0702 -I-1, Final
Order (July 12, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
§ 1201.118 , VACATE the Board ’s Final Order in Lynn v. Department of
Veterans Affairs , MSPB Docket No. SF-0714 -17-0702 -I-1, Final Order (July 12,
2023) , and DISMISS the underlying appeal as settled.
¶2 After t he Board issued a final decision resolving this appeal , the parties
reached a settlement agreement , and the agency filed a motion to reopen the
appeal for the express purpose of entering the agreement into the record for
purposes of enforcement. Lynn v. Department of Veterans Affairs , MSPB Docket
No. SF -0714 -17-0702 -R-1, Reopening Appeal File (RAF), Tab 1 . A document
entitled “SETTLEMENT AGREEMENT ” was included with the agency ’s
reopening request and was signed and d ated by the appellant and his attorney on
July 5, 2023 , and July 11, 2023, respectively , and by the agency on July 12,
2023 . Id. at 5-8. The agreement provides, among other things, for the dismissal
of the appellant ’s Board appeal. Id. at 5.
¶3 Before di smissing 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 ).
¶4 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 enforceme nt by the Board. RAF, Tab 1 at 6 -7. 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 cir cumstances to vacate the Board ’s decision dated
July 12, 2023, and dismiss as settled the underlying appeal with prejudice to
refiling (i.e., the parties normally may not refile this appeal).
3
¶5 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 PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant h as 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 cont ain 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determin es the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems P rotection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to s eek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by y our 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 mos t 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 m ust be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the 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
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, cos ts, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decis ion.
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 prohi bited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D), ” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circu it 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 b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent 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.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pro bono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LYNN_DANIEL_SF_0714_17_0702_R_1_FINAL_ORDER_2066692.pdf | 2023-09-07 | null | SF-0714 | NP |
2,731 | https://www.mspb.gov/decisions/nonprecedential/WATKINS_LATECIA_AT_0752_18_0032_I_1_FINAL_ORDER_2066801.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LATECIA WATKINS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -18-0032 -I-1
DATE: September 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edith Roundtree , Esquire, West Palm Beach, Florida, for the appellant.
Ana M. Urrechaga , Esquire, Miami, Florida, 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 her indefinite suspension appeal as moot . On petition for review, the
appellant appears to challenge the second indefinite suspension that the agency
imposed after rescinding the indefinite suspension at issue in this appeal 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
argues that the agency violated her due process rights .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 o f discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regu lations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we 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 Boar d’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 approp riate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which o ption is most
2 The regional office docketed the appellant’s challenge to the agency’s second
indefinite suspension action as a separate appeal. Watkins v. U.S. Postal Service ,
MSPB Docket No. AT -0752 -18-0212 -I-1. The assigned administrative judge affirmed
the second indefinite suspension in a May 10, 2018 initial decision. Watkins v. U.S.
Postal Service , MSPB Docket No. AT -0752 -18-0212 -I-1, Initial Decision (May 10,
2018). The appellant did not file a petition for review of that decision.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most approp riate in any matter.
3
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediatel y review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the th ree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the co urt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.u scourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appe al to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
4
for Merit Systems Protection Board appellants before the 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 cas e,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, co lor, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtW ebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this ca se,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative 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 appeal s 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 Pr esident on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 Appea ls for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WATKINS_LATECIA_AT_0752_18_0032_I_1_FINAL_ORDER_2066801.pdf | 2023-09-07 | null | AT-0752 | NP |
2,732 | https://www.mspb.gov/decisions/nonprecedential/WILBER_JOHN_DC_0432_22_0097_I_1_ORDER_2066874.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN WILBER,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0432 -22-0097 -I-1
DATE: September 7, 2023
David A. Branch , Esquire, Washington, D.C., for the appellant.
Parvinder K. Nijjar and Thomas Y. Patrick , Indianapolis, Indiana, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Vice Chairman Harris issues a separate opinion.
ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency’s removal action . The two Board members cannot agree on
the disposition of the petition for review. Therefore, the initial decision now
becomes the final decisio n of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulations, section 1200.3(b) ( 5 C.F.R.
§ 1200.3 (b)). This decision shall not be considered as pre cedent by the Board in
any other case. 5 C.F.R. § 1200.3 (d).
¶2 We ORDER the agency to cancel the removal and to restore the appellant
effective October 29, 2021. See Kerr v. National Endo wment for the Arts ,
2
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶3 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 app ellant to cooper ate 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.
¶4 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).
¶5 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 a nd results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶6 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agricul ture (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
3
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 APPELL ANT REGARDING
YOUR R IGHT TO REQUEST
ATTORNEY FEES AND CO STS
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 c osts 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 RIG HTS1
You may obtain review of the final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the follo wing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding w hich cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicab le time
limit may result in the dismissal of your case by your chosen forum.
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. 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 f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of the final decision —including a disposition of your
discrimination claims —by filing a civil action with an appropriate U.S. district
court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit
Systems Protection Board , 582 U.S. 420 (2017). If you have a representative i n
this case, and your representative receives this decision before you do, then you
must file with the district court no later than 30 calendar days after your
representative receives this decision. If the action involves a claim of
discrimination based o n race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be fo und at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view 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
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt jurisdiction.2 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).
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fe deral Circuit or any other circuit court 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 judic ial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pract ice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono rep resentation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 d amages) 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 Remed y 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 under taken 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 annuit y 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 t hat exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 unabl e 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 conversio n, 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/Pe rsonnel Operations at 504 -255-4630.
SEPARATE OPINON OF VICE CHAIRMAN CATHY A. HARRIS
in
John Wilber v. Department of Defense
MSPB Docket No. DC -0432 -22-0097 -I-1
¶1 In order to prevail in an action taken pursuant to 5 U.S.C. chapter 43, an
agency must prove by substantial evidence that: (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 are valid under 5 U.S.C. § 4302 (c)(1); (4) the appellant’s p erformance
during the appraisal period was unacceptable in one or more critical elements;
(5) the agency warned the appellant of the inadequacies in his performance during
the appraisal period and gave him an adequate opportunity to demonstrate
acceptable performance; and (6) after an adequate improvement period, the
appellant’s performance remained unacceptable in at least one critical element.
Lee v. Department of Veterans Affairs , 2022 MSPB 11 , ¶ 15.
¶2 The administrative judge found that the agency met its burden as to the first
four criteria. Initial Appeal File, Tab 22, Initial Decision (ID) at 4 -8, 14 -23. The
administrative judge further found that the agency demonstrated that the
appellant’s performance was unacceptable prior to and during his placement on
the PIP. ID at 23. However, the administrative judge found that the agency
failed to meet its burden of showing that the app ellant was provided a reasonable
opportunity to improve his performance prior to the agency taking action to
remove him. ID at 23 -30. This finding was based in relevant part on
demeanor -based credibility findings, to which the Board defers. ID at 29 -30; see
Haebe v. Department of Justices , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (holding
that the Board must give deference to an administrative judg e’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
2
the demeanor of witnesses testifying at a hearing). The parties do not dispute
these findings and there is no reason to disturb them, as the record reflect s that
the administrative judge considered the evidence as a whole and drew appropriate
inferences. 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. Departmen t of
Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). Accordingly,
the initial decision, which reversed the agency’s removal action, should be
affirmed.
/s/
Cathy A. Harris
Vice Chairman | WILBER_JOHN_DC_0432_22_0097_I_1_ORDER_2066874.pdf | 2023-09-07 | null | DC-0432 | NP |
2,733 | https://www.mspb.gov/decisions/nonprecedential/VAZ_RITA_S_DA_1221_15_0132_W_1_REMAND_ORDER_2066164.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RITA S. VAZ,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
DA-1221 -15-0132 -W-1
DATE: September 6, 2023
THIS ORDER IS NONPRECEDENTIAL1
Celine Fernandes , Arlington, Massachusetts, for the appellant.
Mary C. Merchant and Sakeena Adams , Fort Worth, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
REVERSE the initial decision, and REMAND the case to the Dallas Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 At all times relevant to this appeal, the appellant was employed in the
agency’ s Office of Public Housing, Houston Field Office . Vaz v. Department of
Housing and Urban Development , MSPB Docket No. DA-1221 -15-0132 -W-1,
Initial Appeal File (IAF), Tab 1 at 10, 19. On February 10, 2014, the appellant
filed a whistleblower reprisal complaint with the Office of Special Counsel
(OSC ). IAF, Tab 19. In her complaint, she alleged that she had disclosed abuse s
of authority, gross mismanagement , and violations of various Federal laws , and in
retaliation for her disclosures the agency had taken a number of personnel
actions, including giving her a minimally satisfactory perfor mance appraisal in
Fiscal Year (FY) 2013 and then plac ing her on a performance improvement plan
(PIP) on March 27, 2014 . Id. at 6 -15. She alleged that she had made the
disclosures beginning in 2006 and “aggressively” since 2013, both “internally ” to
various management officials, an d “externally” to a Board administrative judge,2
an Equal Employment Opportunity Commission (EEOC) administrative judge,
and agency attorneys. Id. at 6. The appellant made subsequent amendments to
that complaint , inclu ding an alleged disclosure to the Inspector General (IG) in
2014 , with the final modification taking place on August 14, 2014. See i d. at 4,
2 The appellant named the administrative judge who adjudicated her previous appeal in
Vaz v. Department of Housing and Urban Development , MSPB Docket No. DA -0752 -
13-0450 -I-1, Initial Decision (Nov. 19, 2013), which was dismissed as withdrawn . On
August 4, 2014, the appellant filed a second Board appeal, in which she alleged, among
other things, that the agency had engaged in whistleblower reprisal. The administrative
judge dismissed that appeal for lack of jurisdiction, partly on the grounds that the
appellant had not exhausted her remedies with OSC. Vaz v. Department of Housing and
Urban Development , MSPB Docket No. DA -3443 -14-0579-I-1, Initial Decision
(Sept. 17, 2014). Neither party filed a petition for review of that decision. The same
administrative judge was initially assigned to the instant appeal.
3
71-72. On October 28, 2014 , OSC notified the appellant that it had closed its
investigation and advised her of he r Board appeal rights . IAF, Tab 20 at 50.
¶3 On December 14, 2014, the appellant filed the instant Board a ppeal. IAF,
Tab 1. The administrative judge to whom the case was in itially assigned
informed the appellant of the requirements for establishing jurisdiction in an IRA
appeal and ordered her to submit evidence and argument on the jurisdictional
issue. IAF, Tab 3 . In her response to that order, the appellant alleged that she
made protected disclosures on the following occasions : (1) on June 16, 2008, to
the Assistant Secretary ; (2) on July 24, 2013 , to an agency attorney ; (3) on
several dates from 2013 to 20 14, to an EEOC admin istrative judge; and (4) in
2014, to the IG, the Chief Human Capital Office r, and agency counsel. IAF,
Tab 10 at 13-25.
¶4 The administrative judge advised the parties that the issue of jurisdiction
still had not been resolved and ordered the appellant to produce a copy of her
OSC complaint and additional correspondence with OSC .3 IAF, Tab 17 at 2. In
response, the appella nt provided a copy of her amended OSC complaint form and
various documents she submitted to OSC in support of the complaint. IAF,
Tab 19. Based on the appellant’s submissions, the administrative judge found
3 We note that submission of an OSC complaint is not the only way to establish
jurisdicti on, as further discussed belo w. The administrative judge’s earlier
jurisdictional order appropriately detailed the various ways that the appellant could
establish exhaus tion. IAF, Tab 3 at 7. However, after receipt of the appellant’s
submissions, the administrative judge advised th e parties that the issue of jurisdiction
had not yet been resolved , and that the record indicated that the appellant had attempted
to submit a copy of her OSC complaint in a p leading that had been rejected. IAF,
Tab 17 at 2. Thus, the administrative judg e’s order instructed the appellant to resubmit
the OSC complaint. Id. The administrative judge also properly explained that it was
not necessary for the appellant to provide a copy of the detailed decision let ter that she
received from OSC. See Bloom v. Department of the Army , 101 M.S.P.R. 79 , ¶ 10
(2006) ( stating that, under 5 U.S.C. § 1214 (a)(2)(B), OSC’s written statement
containing its summary of relevant facts related to the appellant’s complaint is not
admissible without the consent of the appellant).
4
that a hearing was warranted and proposed a date for the hearing. IAF,
Tabs 21-22.
¶5 Following an unsuccessful attempt at mediation, the appeal was reassigned
to a second administ rative judge. IAF, Tab 34. The new administrative judge
ordered the appellant to identify and describe her disclosures with sufficient
specificity such that he could evaluate whether she nonfrivolously alleged that
she made a protected disclosure. IAF, Tab 39 at 1. The appellant responded.
IAF, Tabs 40 -41. Without holding the appellant’s reques ted hearing, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 43, Initial Decision (ID). In particular, he found that the
appellant failed to establish that she had made protected disclosures of gross
mismanagement or an abuse of authority, and that the Board did not have
jurisdiction over her claims regarding equal employment opportunity (EEO)
matters. ID at 5 -6.
¶6 On petition for review , the appellant argues that the administra tive judge
ignor ed the ruling by the first administrative judge that a hearing was warranted.
Petition for Review (PFR) File, Tab 1 at 3-4. The appellant further contends that
the administrative judge failed to address disclosures (2) through (4) , as well as
her claim t hat the agency retaliated against her for perceived whistleblowing. Id.
The agency has responded. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW4
¶7 The appellant first challenges the administrative judge’s decision to dismiss
her appeal for lack of jurisdiction without holding a hearing when the first
administrative judge had previously found that a hearing was warranted. PFR
File, Tab 1 at 3-4. The issue of jurisdiction is always before the Board , however,
4 We have revi ewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5
and may be raised by either party or s ua sponte by the Board at any time during a
Board proceeding. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313 ,
¶ 5 (201 0). The second administrative judge provided notice to the parties of a
specific jurisdictional issue that he believed remained unresolved, allowed them
to make submissions addressing the issue, and then he made his jurisdictional
determination based upon the record evidence. IAF, Tabs 39 -43. Although, as
explained below, we disagree with certain findings made by the administrative
judge, as well as his conclusion that the Board lacks jurisdiction over the appeal,
we find that it was within his authority to revisit the issue of jurisdiction after he
was assigned the appeal, despite the first administrative judge’s apparent finding
that the Board had jurisdiction over the appeal .
¶8 To establish jurisdiction over an IRA appeal, and the consequent right to a
hearing, an appellant must show by preponderant evidence that she exhausted her
administrative remedies before OSC and make nonfrivolous allegations5 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 fact or
in the agency’s decision to take or fail to take, or threaten to take or fail to take, a
personnel action as defined under 5 U.S.C. § 2302 (a). Salerno v. Department o f
the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016); see 5 U.S.C. §§ 1214 (a)(3),
1221(e)(1). For the following reasons, we find that the appellant has established
jurisdiction over a portion of her retaliation claims, and is therefore entitled to a
hearing on those particular claims.
5 The Board’s regulations define a nonfrivolous allegation as an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). The U.S. Court of
Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a
nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as true, to
state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board ,
979 F.3d 1362 , 1364, 1369 (Fed. Cir. 2020).
6
The appellant exhausted her remedies with OSC regarding disclosure s (1)
through (4), but not her claim of reprisal for perceived whistleblowing.
¶9 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. The Board’s jurisdiction is limited to matters raised before OSC. Coufal
v. Department of Justice , 98 M.S.P.R. 31 , ¶¶ 14, 18 (2004). The substantive
requirements of exhaustion are met when an appellant has provided OSC with
sufficient basis to pursue an investigation. Chambers v. Department of Homeland
Security , 2022 MSPB 8 , ¶ 10. An appellant may demonstrate exhaustion of her
OSC remedies through her initial OSC complaint or other written correspondence
to and from OSC concerning her allegations. Benton -Flores v. Department of
Defense , 121 M.S.P.R. 428 , ¶ 6 (2014). In the alternative, exhaustion may be
proved through other sufficiently reliable evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in the MSPB appeal. The appellant must pro ve exhaustion with OSC by
preponderant evidence, not just present nonfrivol ous allegations of exhaustion.
5 U.S.C. § 1204 (a)(3); 5 C.F.R. § 1201.57 (c)(1).
¶10 Based on our review of the appellant’s OSC complaint and subsequent
correspondence, see IAF, Tab 19, we find that the appellant exhausted her
remedies with OSC with respect to disclosures (1) through (4).6 To the extent the
administrative judge limited his at tention to disclosure (1) only , without
addressing disclosure s (2) through (4), we agree with the appellant that this was
error. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587 , 589
(1980) .
¶11 However, we find that the appellant has not shown that she allege d before
OSC that the agency r etaliated against her as a perceived w histleblower. We
6 The appellant’s co rrespondence with OSC describe s other alleged disclosures to
agency management , but the appellant has n ot otherwise referred to those disclosures in
her pleadings before the Board.
7
therefore lack jurisdiction over that claim. See El v. Department of Commerce ,
123 M.S.P.R. 76 , ¶ 12 (2015) (finding that, even if the Board considered the
appellant’s claim that he was a perceived whistleblower, he failed to establish
jurisdiction over his claim because he failed to exhaust his administrative
remedy), aff’d , 663 F. App’x 921 (Fed. Cir. 2016). While the administrative
judge erred in failing to address the appellant’s claim of retaliation for perceived
whistleblowing , which she also raised in the proceedings below, see IAF, Tab 41
at 6, his error did not prejudice the appellant’s su bstantive rights. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (holding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision ).
The appellant has made a nonfrivolous allegation that a portion of disclosure (2)
was protected under 5 U.S.C. § 2302 (b)(8).
¶12 We next consider whether the appellant nonfrivolously alleged that her
disclosures were protected under 5 U.S.C. § 2302 (b)(8). In conducting this
inquiry, the test i s whether a disinterested observer with knowledge of the
essential facts known to or 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 gr oss waste of funds, an abuse of
authority, or substantial and specific danger to public health or safety. Lachance
v. White , 174 F.3d 1 378, 1379 -81 (Fed. Cir. 1999).
Disclosure 1
¶13 Regarding disclosure (1), whic h the appellant describes as her “internal”
disclosure, the appellant alleges that in June 2008, she informed the Assistant
Secretary verbally and by email that her then -supervisor was deliberately
mistreating and neglecting the housing authorities in her portfolio and abusing his
author ity as a supervisor. IAF, Tab 10 at 13 -17, Tab 19 at 14. The OSC
correspondence includes several email s, which the appellant forwarded to the
Assistant Secretary, purportedly showing that her supervisor at that time engaged
8
in gross mismanagement by deli berately placing her on a PIP when she had
timely completed her assignment, and abused his authority by failing to correct an
assignment log and by not similarly penalizing other employees in the same or
similar manner. IAF, Tab 19 at 14 -20. In describin g disclosure (1), the appe llant
further alleged that in 2006 and 2007, she verbally notified another agency
manager that her supervisor failed to rescind the PIP even after admitting that the
system used to log and close her cases was flawed. Id. at 15.
¶14 The appellant’s disagreement w ith how agency officials managed
performance issues or provided her assignments does not constitute a
nonfrivolous allegation of gross mismanagement. See C assidy v. Department of
Justice , 118 M.S.P.R. 74 , ¶ 8 (2012) (explaining that gross mismanagement is a
management action or inaction that creates a substantial risk of significa nt
adverse impact on t he agency’ s ability to accomplish its mission ). To the extent
the appellant alleged gross mismanagement regarding the supervisor’s oversight
of housing authorities, the information she described under disclosure (1) is too
vague to qualify for protection under 5 U.S.C. § 2302 (b)(8).7
¶15 Similarly, the appellant has provided scant information regarding her
supervisor’s alleged failure to correct an assignment log , nor has she provided
sufficient detail regarding the performance of other employees she alleges should
also have been penalized for deficiencies around the time she was placed on a
PIP. As a result, we find that the appellant has failed to make a nonfrivolous
allegation that she disclosed an abuse of authority. 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
7 As discussed below, we reach a dif ferent conclusion regarding similar allegations set
forth in disclosure (2).
9
results in personal gain or advant age to himself or to preferred other persons ).
Accordingly, we find that disclosure (1) is not protected.
Disclosure 2
¶16 The appellant states that in a July 24, 2013 email to agency counsel, she
disclosed abuse of supervisory authority, gross mismanagemen t, and gross waste
of funds on the part of her then -supervisor . IAF, Tab 10 at 18 -19, Tab 19
at 66-70. The email includes allegations that the supervisor discriminated against
her on the basis of color and national origin, slandered her, and subjected her to
“emotional gang rape.” IAF, Tab 19 at 6 7-69. The appellant also alleged that the
supervisor was negligent in his oversight of the housing authorities in the
appellant’s portfolio, in particular the Harris County Public Housing Autho rity
(PHA). Id. at 68 -69. The email includes excerpts from and links to a July 9,
2013 news artic le describing the results of a recent IG audit that uncovered
millions of dollars in fraudulent and wasteful expenditures by the Harris County
PHA, and a July 16, 2013 letter of conce rn from U.S. Senator Charles Grassley
regarding the results of that audit. Id.; Jon Cassidy, IG says Texas housing
authority is auditors’ nightmare , Washington Examiner (July 9, 2013) ,
https://www.washingtonexaminer.com/ig -says-texas -housing -authority -is-
auditors -nightmare (last accessed Sept. 6, 2023 ); Letter from U.S. Senator Chuck
Grassley, Committee on the Judiciary (July 16, 2013) , https://blog.chron.com/texa
spolitics/files/2013/07/Grassley -to-HUD -7-16-2013.pdf (last accessed Sept. 6 ,
2023 ) (Grassley Letter).8 In that le tter, Senator Grassley quoted with disapproval
the supervisor’s previous assurances that the practices in the Houston field office
were “some of the best throughout the region,” a nd his subsequent statement that
8 Although the appellant does not appear to have submitted the Washington Examiner
article or Grassley Letter in any of her submissions to the Board, we have accessed the
links she provided and confirmed that the excerpts she included in her submission are
accurate. We take official notice of the article and the letter . 5 C.F.R. § 1201.64 .
10
“we didn’t expect anything was actually goin g on here of concern .” Grassley
Letter at 1.
¶17 The appellant’s disclosures concerning alleged discrimination, harassment,
and the creation of a hostile work environment in violation of antidiscrimination
statutes do not constitute protected whistleblowing under 5 U.S.C. § 2302 (b)(8)
or protected activity under section 2302(b)(9)(A)(i) . See Edwards v. Department
of Labor , 2022 MSPB 9 , ¶¶ 10-17, 21-25 (explaining that disclosures pertaining
to matters covered by 5 U.S.C. § 2302 (b)(1)(A), even if made outside of the
grievance or EEO process, do not constitute protected whistleblowing activity
under section 2302(b)(8) or section 2302 (b)(9)(A)(i) ), aff’d , No. 2022 -1967,
2023 WL 4398002 (Fed. Cir. Jul y 7, 2023) . Furthermore, while we have
considered that harassment by a supervisor may c onstitute an abuse of authority,
see Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 14 (2015), we find that
the appellant ’s vague allegations of harassment do not rise to this level.9
9 To the extent the appellant is alleging that the agency retaliated against her for
protected discl osures made in her two prior Board appeals, we find that the Board lacks
jurisdiction to address th ose allegation s in this appeal. The appellant’s 2013 appeal
concerned a 7 -day furlough issued by the agency , but the appellant did not allege in that
appeal that the action was taken in retaliation for her whistleblowing . Vaz v.
Department of Housing and Urban Development , MSPB Docket No. DA -0752 -13-0450 -
I-1, Initial Appeal File, Tab 28 (Summary of Telephonic Prehearing Conference). Thus,
a claim of retalia tion for filing that prior appeal falls under 5 U.S.C.
§ 2302 (b)(9)(A)(ii), since it was “ other than with regard to remedying a violation ” of
section 2302(b)(8), and it is therefore outside the Board’s jurisdiction in this case. See
Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7 (2013) (stating tha t the
Whistleblower Protection Enhancement Act of 2012 extends IRA jurisdiction to claims
arising under 5 U.S.C. § 2302 (b)(9)(A)(i), but not section 2302 (b)(9)(A)(ii)) . The
appellant did allege wh istleblowing retaliation in her second appeal , but that appeal was
filed on August 4, 2014, which was after the two personnel action s at issue in this case
had already been taken and after the PIP had been extended. Vaz v. Department of
Housing and Urban Development , MSPB Docket No. DA -3443 -14-0579 -I-1.
Accordingly, the personnel actions could not have been taken in retaliation for her
attempt to remedy whistleblower retaliation in that appeal. 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
11
¶18 We find, however, that the appellant nonfrivo lously alleged that she
disclosed gross mismanagement by her su pervisor regarding the office’s oversight
of the Harris County PHA. Accordingly, we find that this portion of
disclosure (2) is protected under 5 U.S.C. § 2302 (b)(8).
Disclosure 3
¶19 Regarding dis closure (3), the appellant asserts that on several occasions
between September 2013 and March 2014, she notified an EEOC administrative
judge of retaliatory harassment and violations of the ADA and other
antidiscrimination laws. IAF, Tab 10 at 20 -24, Tab 11, Tab 19 at 6. As noted
above, such disclosures are not protected under section 2302(b)(8).
Disclosure 4
¶20 The appellant alleges that in a June 13, 2014 email to multiple ag ency
officials, including the IG, the Chief Financial Officer, and agency counsel, she
disclosed an abuse of authority, gross mismanagement, and violations of law and
regulation including “multiple infractions of EEO laws, federal regulations, the
negotiated Union contract, [and] HUD’s core values.” IAF, Tab 10 at 24 -25,
Tab 19 at 71. This email, titled “Multiple Violations of EEO laws, Federal laws,”
includes a copy of the appellant’s rebuttal to the results of a management inquiry
into her allegations of ongoing harassment by management. IAF, Tab 19
at 72-140. The attachmen t describes the appellant’s concerns with the EEO
process and includes documentation about her placement on a PIP, discussions
about a reasonable accommodation, and alleged harassment by her former
supervisor, including, among things, the appellant’s alleg ation that her supervisor
“pinched” his nipples around her. Id. The appellant also cites a February 5, 2014
email addressed to her second -line supervisor, who had proposed placing the
contributing factor in the action) , aff’d per curiam , 232 F.3d 912 (Fed. Cir. 2000)
(Table) .
12
appellant on a PIP in a January 29, 2014 email , and the appellant’s email was
copied to the IG. IAF, Tab 10 at 24, Tab 19 at 71 -72. In the February 5, 2014
email, the appellant contests the proposal to place her on a PIP based on the
performance appraisal issued by her former supervisor , who had since lef t the
agency. Id. Both emails are included in full in the appellant’s submissions to
OSC.10 IAF, Tab 19 at 71 -140.
¶21 As previously noted, the appellant’s disclosures of alleged EEO violations
are not protected under 5 U.S.C. § 2302 (b)(8). Although the appellant alleges
that she also disclosed violations of other laws, rules, or regulations, she has not
identified any specific provisions . Nor do her allegations clearly implicate an
identifiable la w, rule, or regulation separate from her EEO claims . See Baldwin
v. Department of Veterans Affairs , 113 M.S.P.R. 469, ¶ 12 (2010) (stating that the
Whistleblower Protection Act does not require an employee to identify the
particular statutory or regulatory provision that the agency allegedly violated
when her statements and the circumstances of those statements clearly implicate
an identifiable law, rule, or regulation). Furthermore, for the same reasons
discussed above under disclosure (1), supra ¶ 15, we find that the appellant failed
to make a nonfrivolous allegation that her February 5 and June 13, 2014 emails
disclosed gross mi smanagement or an abuse of authority by her former
supervisor. Accordingly, we find that disclosure (4) is not protected under
5 U.S.C. § 2302 (b)(8).
10 In her response to the Board’s first jurisdictional order, the appellant also describes
two verbal communications with the IG in September 2014. IAF , Tab 10 at 25.
However, the appellant did not refer to those communications in her OSC complaint or
subsequent correspondence with OSC.
13
The appellant nonfrivolously alleged that her disclosure of gross mismanagement
regarding the Harris County PHA was a contributing factor in her supervisor’s
issuance of an unfavorable performance appraisal.
¶22 The appellant alleges that her July 24, 2013 disclosure regarding her
supervisor’s alleged g ross mismanagement of the Harris County PHA was a
contributing factor in the issuance of a minimally satisfactory performance
appraisal , which constitutes a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(viii). One way an appellant may satisfy the contributing factor
element at the jurisdictional stage is by making nonfrivolous allegations that the
official taking the personnel action knew of the protected activity and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the activity was a contributing factor in the personnel action.
See 5 U.S.C. § 1221 (e)(1); Carney v. Department o f Veterans Affairs ,
121 M.S.P.R. 446 , ¶ 7 (2014).
¶23 Here, the appellant alleged before OSC that the agency attorney to whom
she mad e the disclosure immediately shared the email with unspecified agency
officials, and that her supervisor retaliated for t hat disclosure by giving her a
minimally satisfactory performance appraisal for FY 2013. IAF, Tab 19 at 67.
While the appellant did n ot specify the names of the agency officials with whom
the agency attorney shared the July 24, 2013 email, her allegations would imply
that the supervisor either received a copy of the email himself or else learned of it
by other means. The appellant further asserts that the supervisor, who has since
left the agency, issued the appraisal in November 2013 , approximately 4 months
after the disclosure . Id. These events are close enough in time to support a
conclusion that the disclosure was a contributing factor in the personnel action.
See Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 25 (2016)
(observing that a personnel action that takes place within 2 years of a disclosure
satisfies the knowledge component of the knowledge/timing test). Accordingly,
we find that the a ppellant is entitled to a hearing regarding her claim that the
14
agency issued her an unfavorable performance evaluation in retaliation for her
protected disclosure.
Although disclosure (4) is not protected under section 2302(b)(8), the appellant’s
comm unications with the IG constitut e protected activity under
section 2302(b)(9)(C).
¶24 While we have found that the appellant did not make a nonfrivolous
allegation that disclosure (4) was protected under 5 U.S.C. § 2302 (b)(8), the
record reflects that the February emails at issue were sent to the IG. Under the
broadly worded provision of 5 U.S.C. § 2302 (b)(9)(C), disclosin g information to
an agency’s IG or to OSC is protected regardless of the content of the appellant’s
complaints, as long as such disclosures are made “in accordance with applicable
provisions of law.” Hence, we find that the appellant has made at least a
nonfrivolous allegation that she engaged in protected activity for purposes of an
IRA appeal.
The appellant nonfrivolously alleged that her protected activity was a
contr ibuting factor in her placement on a PIP.
¶25 We also find that the appellant nonfrivol ously alleged that her
communications with the IG were a contribut ing factor in a personnel action .
Specifically, the appellant a lleged before OSC that the agency retaliated against
her for those communications by placing her on a PIP. IAF, Tab 19 at 9 ( OSC
complaint form) . In this regard, the record includes a screenshot of a March 27,
2014 email from the Acting Director of the Houston Field Office , notifying the
appellant of her placement on a PIP . IAF, Tab 40 at 118 -19. The screenshot
shows that the PIP was attached to the email , but the PIP document does not
appear to have been submitted to the Board by either party . Id. at 118. The
appellant further asserts that on July 28, 2014 , her second -line supervisor —who
had first referenced the possibility of placing her on a PIP and who was also the
recipient of the February 5, 2014 email discussed above —notif ied her that the PIP
was being extended. See IAF, Tab 10 at 9. The agency submitted a copy of the
15
July 28, 2014 memorandum extending the PIP for an additional 60 days. IAF,
Tab 8 at 55 -64. Based on all of the above, w e find that the appellant has made a
nonfrivolous allegation that the agency placed her on a PIP on March 27, 2014 .
Moreover , it is well settled that a PIP is considered a personnel a ction for
purposes of an IRA appeal. See, e.g. , Hudson v. Department of Veterans Affairs ,
104 M.S.P.R. 283 , ¶ 15 (2006).
¶26 While it is unclear which official made the final decision to impos e a PIP,
the record indicates that th e managers who received t he February 5 and June 13
emails, which were also addressed to the IG, were involved either in
implementing the PIP or considering the appellant’s response after the possibility
of placing the appellant on a PIP had been raised . IAF, Tab 19 at 71 -73, Tab 40
at 118 -19. Moreover, the March 27 and July 28, 2014 notifications regarding the
PIP and its extension were both iss ued within a few weeks or months after the
emails in question. Under these circumstances, we find that the appellant has a
made a nonfrivolous allegation that she engaged in protected activity under
5 U.S.C. § 2302 (b)(9)(C) that was a contributing factor in the agency’s decision
to place her on a PIP.11 The appellant has therefore established jurisdiction and is
entitled to a hearing on that claim .
11 The appellant is also alleging that the agency repeatedly threatened to place her on a
PIP, including in a January 29, 2014 email and during a conference call held on the
same date. IAF, Tab 1 at 4 -5, 15 -17, 50 -52. To the extent she is claiming that
communications regarding placing her on a PIP constituted threatened personnel
action s, from our review of the record we find that she has failed to make a
nonfrivolous allegation that any agency statements in this regard rose to the level of
threats to take personnel actions, as defined in 5 U.S.C. § 2302 (a)(2). Further, while
the appellant questions whether the March 27, 2014 PIP was ever implemented, it
appears that she may actually be arguing that the agency violated various procedures
when it notified her of the PIP , and that thi s casts doubt on the validity of the action.
IAF, Tab 10 at 8 -10; IAF, Tab 40 at 117 -19. On remand, the administrative judge
should determine if there is a dispute regarding whether the PIP ever went into effect,
and if so , he should accept evidence and argument on the issue and make findings as
necessary.
16
The appellant has nonfrivolously alleged that her July 24, 2013 disclosure was a
contributing factor in her placement on the March 27, 2014 PIP .
¶27 As discussed above, we have found that the appellant made a nonfrivolous
allegation that the supervisor who gave her the minimally satisfactory
performance appra isal for FY 2013 either received a copy of the appellant’s
July 24, 2013 email (disclosure 2) or otherwise learned of the email . The
appellant admits that the supervisor who gave her that appraisal was no longer a
Federal employee as of January 6, 2014 ; however, she asserts that her second -line
supervisor and the Acting Director of the Houston Field Office used the appraisal
to put her on the PIP. IAF, Tab 19 at 9. Record evidence supports her
contention, as the Acting Director sent the March 27, 2014 email notifying the
appellant that she was being placed on a PIP, he attached a copy of her final
FY 13 performance rating along with the PIP, and he stated that the PIP was
“required as a result of your marginally successful rating.” IAF, Tab 40 at 118.
¶28 Even assuming the individuals who placed the appellant on the PIP were
unaware of the appellant’s July 24, 2013 disclosure , because we have found that
the appellant made a nonfrivolous allegation that th is disclosure was a
contributing factor in the FY 13 performance appraisal and the appraisal led
directly to the appellant being placed on a PIP approximately 8 months later, we
find that the appellant has made a nonfrivolous allegation that the disclosure was
a contributing factor in the PIP. See Marano v. Department of Justice , 2 F.3d
1137 , 1143 (Fed. Cir.1993) ( finding that the contributing factor standard is met if
an employee can demonstrate “that the fact of, or the conten t of, the protected
disclosure was one of the factors that tended to affect in any way the personnel
action”) .
Conclusion
¶29 We find that the appellant has made nonfrivolous allegations that the part of
the July 24, 2013 email regarding her supervisor’s alleg ed gross mismanagement
concerning the Harris County PHA was a protected disclosure and was a
17
contributing factor in the FY 13 performance appraisal and the March 27, 2014
PIP, and she has further nonfrivolously alleged that the February 5 and June 13,
2014 emails to the OIG were protected activity and were a contributing factor in
the PIP.
ORDER
¶30 For the reasons discussed above, we remand this case to the Dallas Regional
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | VAZ_RITA_S_DA_1221_15_0132_W_1_REMAND_ORDER_2066164.pdf | 2023-09-06 | null | DA-1221 | NP |
2,734 | https://www.mspb.gov/decisions/nonprecedential/CORRIVEAU_JAMES_A_PH_1221_14_0377_B_1_REMAND_ORDER_2066169.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES A. CORRIVEAU, SR.,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
PH-1221 -14-0377 -B-1
DATE: September 6, 2023
THIS ORDER IS NONPRECEDENTIAL1
James G. Noucas, Jr., Esquire, Portsmouth, New Hampshire, for the
appellant.
Debra M. Evans , Esquire, Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which denied his request for c orrective action in this individual right of action
(IRA) appeal . For the reasons discussed below, we GRANT the appellant’s
petition for review , VA CATE the remand initial decision, FIND that the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB c ase law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Op inion and 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
made some protected disclosures that were contributing factors in certain
personnel actions, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was a Pipefitter at the agency’s Portsmouth Naval Shipyard,
Naval Facilities Engineering Command (NAVFAC). Corriveau v. Department of
the Navy , MSPB Docket No. PH-1221 -14-0377 -W-1, Initial Appeal File (IAF),
Tab 1 at 2. On May 2 5, 2010, he and three of his coworkers sent a letter to
U.S. Senators Susan Collins and Olympia Snowe alleging that their supervisors
were illegally retaliating against them and requesting an investigation into their
behavior. IAF, Tab 49 at 33 -36. Approximately 3 days later, o n or about
May 28, 2010, the appellant contacted the NAVFAC Headquarters Inspector
General (IG) Hotline and asserted that he and some of his coworkers in the Public
Works Department believed that they were experiencing “endless harassment” at
the hands of their supervisors. Id. at 17 -19.
¶3 In response to the letter to Senators Collins and Snowe , the agency held a
meeting on June 15, 2010 , which was attended by all four signe es, as well as the
Production Division Manager , R.G.; a Labor Relations Specialist , C.M.; and the
Chief Steward , C.R. Id. at 40, 42 ; Hearing Transcript, Day 1 (HT1) at 159
(testimony of R.G.); Hearing Transcript, Day 2 ( HT2) at 316 (testimony of the
appellant ), 486 (testimony of C.M.) . On July 28, 2010, the appellant sent a
follow -up letter to Senator Collins stating that R.G., who had been identified as
one of the retaliators , was present at the meeting , that nothing was resolved at the
meeting, and that he still was experiencing whistleblower retaliation. IAF,
Tab 49 at 46.
¶4 Thereafter, the appellant filed a Board appeal on July 21, 2010, challenging
his nonselection for a Performance Assessment Representative (PAR) position
and raising whistleblower retaliation . See Corriveau v. Department of the Navy ,
3
MSPB Docket No. PH -3443 -10-0542 -I-1, In itial Decision (0542 ID) (Sept. 27,
2010); IAF, Tab 1 at 59 -60. The administrative judge issued an initial decision
dismissing the appeal on September 27, 2010, finding that the appellant failed to
allege any basis for the Board’s jurisdiction. Id. The appellant did not seek
review and , as a result, the initial decision became the Board’s final decision. Id.
at 3.
¶5 In the meantime , the appellant filed a complaint with the Office of Special
Counsel (OSC) in mid-September 2010 . IAF, Tab 4 at 20. He alleged that the
agency took several actions against him as a result of his protected disclosures.
IAF, Tab 1 at 64 -65, Tab 4 at 34. He also claimed that he overheard R.G. stating
on July 28, 2010, that the four June 15, 2010 meeting participants had “bullseyes
on their backs” and that he intended to “get every one of them.” IAF, Tab 1
at 64-65. On November 30, 2010, OSC issued a close -out letter advising the
appellant that it had terminated its inquiry into hi s allegations and that he had the
right to seek corrective action from the Board within 65 days after the date of the
letter. IAF, Tab 4 at 10. He did not file a Board appeal at that time.
¶6 In September and October 201 2, the appellant contacted several elected
representatives and raised complaints concerning the alleged illegal practices of
his supervisors . IAF, Tab 49 at 52 -55. He then subsequently filed a second
complaint with OSC on March 21, 2013. IAF, Tab 1 at 27. Therein, he named
R.G. and the Head of the Public Works Department, J.W. , as the responsible
agency officials. Id. at 21. He included the personnel actions that he alleged in
his 2010 complaint and also asserted the following : (1) he was denied training
since February 2011; (2) he applied for and was offered a PAR position, but he
declined the position because it was temporary; and (3) he was not selected for
16 positions between December 4, 2011, and December 20, 2012. Id. at 38 -40,
101-29. In a September 16, 2013 letter responding to the complaint, OSC advised
the appellant that it would “not revisit the allegatio ns and personnel actions
that . . . [were] already analyzed in connection with [his] prior complaint.” Id.
4
at 11. In its September 30, 2013 letter closing the file, OSC stated that the
personnel actions included in the appellant’s complaint were nonselections for
several positions, denial of the opportunity to serve as an acting supervisor, and
the agency’s failu re to pay him an on -the-spot award. Id. at 9.
¶7 On November 2 5, 2013, the appellant filed this IRA appeal . Id. at 1. The
administrative judge held the requested hearing and issued an initial d ecision
denying his request f or corrective action. IAF, Tab 67, Initial Decision (ID). The
appellant petitioned for review of the initial decision and the Board issued a
Remand Order, vacating the decision . Corriveau v. Department of the Navy ,
MSPB Docket No. PH-1221 -14-0377 -W-1, Remand Order (Sept. 4, 2015) . In the
Remand Order, the Board ordered the administrative judge , among other things,
to identify the alleged personnel actions and protected disclosures properly before
the Board in the appeal, to reexamine the contributing factor evidence, to make
credibility findings of key witnesses, and to perform a clear and convincing
analysis under Whitmore v. Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012),
paying spec ial attention to the strength of the agency’s motive to retaliate in light
of the apparent direct evidence and other circumstantial evidence of R.G.’s
retaliatory animus . Remand Order, ¶¶ 13-15, 18-22.
¶8 On remand, the administrative judge did not open the record except to seek
a copy of the appellant’s 2010 OSC complaint , and she issued a remand initial
decision that again denied the appellant’s corrective action request. Corriveau v.
Department of the Navy , MSPB Docket No. PH-1221 -14-0377 -B-1, Remand File,
Tab 8, Remand Initial Decision (RID). She found that 6 of the 8 disclosures that
the appellant made were protected under 5 U.S.C. § 2302 (b)(8) , that the appellant
proved that his protected disclosures were a contributing fac tor in 3 of the
17 alleged personnel actions properly before the Board in the appeal , and that the
agency showed by clear and convincing evidence that it would have taken the
3 personnel actions in the absence of his disc losures . RID at 7 -26.
5
¶9 The appellant has filed a petition for review of the remand initial decision,
primarily arguing that the administrative judge failed to comply with several of
the Board’s instructions in the Remand Order, including its instructions to
perform a sound credibility analysis of significant witnesses and to perform a
clear and convincing analysis in accordance with Whitmore . Remand Petition for
Review (RPFR) File, Tab 1. The agency has filed a response in opposition, to
which the appel lant has replied. RPFR File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶10 It is undisputed that all of the personnel actions at issue here took place
prior to the December 27, 2012 enactment of the Whistleblower Protection
Enhancement Act (WPEA) . IAF, Tab 1 at 36-40, Tab 15 at 6 -7. Therefore, the
pre-WPEA standards concerning the scope of an IRA appeal apply to this appeal .2
See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 7 (2016); Rebstock
Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661 , ¶¶ 7-8
(2015).
¶11 Under pre -WPEA law, after establishing the Board ’s jurisdiction , as the
appellant did here, he then must establish a prima facie case of whistleblower
retaliation by proving by preponderant evidence that he made a protected
disclosure that was a contributing factor in a personnel action taken against him.
Scoggins , 123 M.S.P.R. 592, ¶ 8. If the appellant meets that burden, then the
Board shall order such corrective action unless the agency shows by clear and
convin cing evidence that it would have taken the same personnel action in the
absence of the protected disclosure. Id.
2 During the pendency of this appeal, the National De fense 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 nited States Code. Our decision to remand this appea l and our findings herein
would be the same under both pre - and post -NDAA law.
6
The appellant established that he made disclosures protected under 5 U.S.C.
§ 2302 (b)(8).
¶12 Pre-WPEA law defined a protected disclosure as a disclosure of information
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 spe cific danger to public health or safety. 5 U.S.C.
§ 2302 (b)(8)(A) (2011); Scoggins , 123 M.S.P.R. 592, ¶ 11. 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 evid ence one of the categories of wrongdoing listed in
section 2302(b)(8)(A). Scoggins , 123 M.S.P.R. 592, ¶ 11. To establish that he
made a protected disclosure, the appellant need not prove that the matter
disclosed actually established one of the types of wrongdoing listed under
section 2302(b)(8)(A); rather, he must show that the matter disclosed was one
that a reasonable per son in his position would have believed evidenced any of the
situations specified in 5 U.S.C. § 2302 (b)(8). Id.
¶13 The appellant identified the following eight protected disclosures , labeled
Disclosu res A -H, that he exhausted before OSC in connectio n with this appeal:
(A) disclosures made in his May 25, 2010 letter to Senators Collins and Snow e
and his May 28, 2010 complaint to the IG hotline; (B) disclosures made during
the June 15, 2010 meeting hel d in response to the May 25, 2010 letter to Senators
Collins and Snowe ; (C) disclosures contained in the appellant’s July 7, 2010 letter
to Senator Collins; (D) disclosures made during the course of the appellant’s 2010
Board appeal and his 2010 OSC complaint; (E) disclosures made in his September
and October 2012 letters to several elected representatives ; (F) disclosures made
during a discussion with the NAVFAC’s Head of Safety on September 15, 2010;
(G) disclosures made during a meeting with the Sh ipyard Commander and J.W. in
May 2011; and (H) disclosures concerning mold made in 2010 or 2011, and then
7
again in an all -hands meeting on March 6, 2013. IAF, Tab 1 at 31 -35, Tab 49
at 4-5.
The appellant has shown that Disclosures A, B, C, D, E, and F are
protected.
¶14 Disclosure A consists of the appellant’s May 25, 2010 letter to Senators
Collins and Snow e and his May 28, 2010 complaint to the IG hotline. IAF, Tab 1
at 31, 45 -58, Tab 49 at 17-19.3 In these disclosures, the appellant complains of
“endless harassment” by his supervisors in retaliation for “speak[ing] up,”
including , among other things, denying them high pay for duties performed under
hazardous conditions, denying them the opportunity to receive fill-in time, i.e.,
the opportunity to be an a cting supervisor, overlooking them for several positions ,
eliminating their break room, and yelling and screaming at them in certain
instances. IAF, Tab 1 at 31, 45 -48, Tab 49 at 17 -19.
¶15 Concerning his complaint about high pay, the appellant failed to sp ecify the
law, rule, or regulation the agency allegedly violated when he made the
disclosure. However, an employee need not identify a statutory or regulatory
provision by title or number to receive protection under the whistleblower
protection laws when the employee’s statements and the circumstances of those
statements clearly implicate an identifiable law, rule, or regulation. See L anger v.
Department of the Treasury , 265 F.3d 1259 , 1266 (Fed. Cir. 2001). The appellant
only needs to show that he reasonably believed that his disclosure evidenced one
of the conditions set forth in 5 U.S.C. § 2302 (b)(8). Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285 , ¶ 18 (2013). In the May 25, 201 0 letter to
Senators Collins and Snowe, the appe llant and the other signe es wrote that an
3 Because pre -WPEA standards apply to this appeal, the appellant cannot obtain
corrective action in this appeal for reprisal based on his 2010 complaint to the IG
hotline as protected activity under 5 U.S.C. § 2302 (b)(9)(C) ; rather, the Board only may
order corrective action for reprisal as a result of a prohibited personnel practice
described in section 230 2(b)(8). See Rebstock Consolidation , 122 M.S.P.R. 661 , ¶ 7;
Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677 , ¶ 7 (2014).
8
employee is entitled to high pay when they are “asked to perform duties under
hazardous conditions,” and they claimed that their supervisors would give it to
other employees, but not to them. IAF, Tab 1 at 45. Du ring the proceedings,
C.M., a Labor Relations Specialist , testified that there is a specific regulation in
the Code of Federal Regulations ( 5 C.F.R. § 532.511 ) that outlines when work
situations warra nt high pay and that he discussed the regulation with the union,
the appellant, and some of his coworkers. HT2 at 492-93. Under these
circumstances, we find that the appellant disclosed a matter that a reasonable
person in his position be lieved evidenced a violation of the regulation concerning
high pay . See Mogyorossy v. Department of the Air Force , 96 M.S.P.R. 652 ,
¶¶ 12-13 (2004) (finding that the appellant’s disclosure concerning the agency’s
failure to give its employees breaks was protected despite his failure to identify
the specific law, rule, or regulation that the agency allegedly violated ); Berkley v.
Department of the Army , 71 M.S.P.R. 341 , 351 -52 (1996) ( finding that the
appellant made a protected disclosure whe n he complained to the IG and his
supervisors that he improperly was denied overtime pay).
¶16 Further, 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 himself
or preferred other persons. See H erman v. Department of Justice , 115 M.S.P.R.
386, ¶ 11 (2011) . The Board has held that harassment by a supervisor may
constitute an abuse of authority. See, e.g ., Ayers v. Department of the Army ,
123 M.S.P.R. 11 , ¶¶ 14-20 (2015); Herman , 115 M.S.P.R. 386 , ¶¶ 11 -12; Murphy
v. Department of the Treasury , 86 M.S.P.R. 131 , ¶ 6 (2000). Here, four
employees signed the letter to the Senators requesting an investigation into their
supervisors’ alleged retaliatory behavior , claiming that they believed that the
ongoing harassment they were experiencing was illegal. IAF, Tab 1 at 45. They
supported the ir assertions with several acts of alleged retaliation . Id. at 45-48.
Under these circumstances, we find that the appellant disclosed a matter that a
9
reasonable person in his position believed evidenced an abuse of authority.
Herman , 115 M.S.P.R. 386 , ¶¶ 11 -12.
¶17 Disclosure B includes disclosures that the appellant made during the
June 15, 2010 meeting held in response to the May 25, 2010 letter to Senators
Collins and Snowe. IAF, Tab 1 at 31. The appellant states that R.G. was present
at the meeting and heard “first hand [their] complaints about his actions and
practices that [they] felt were illegal and inappropriate from the way he treated
[them] as employees to, more importantly, hiring and promotion practices .” Id.;
HT2 at 318 -19 (testimony of the appellant). R.G. testified that the signees voiced
their concerns during the meeting, including their concerns about leadership
training and advancement, a hostile work environment, and retaliation. HT1
at 159-62. Under these circumstances, we find that the appellant disclosed a
matter that a reasonable person in his position believed evidenced a violation of a
law, ru le, or regulation , or an abuse of authority. See Herman , 115 M.S.P.R. 386 ,
¶¶ 11-12; Murphy , 86 M.S.P.R. 131 , ¶¶ 6-7.
¶18 Disclosure C consists of disclosures contained in the appellant’s July 7,
2010 letter to Senator Collins. IAF, Tab 1 at 32, Tab 49 at 34. In the letter, the
appellant reference d his May 25, 2010 letter to Senators Collins and Snow e, and
stated that R.G., who had been identified as one of the retaliators, was present at
the meeting and that nothing was resolved . IAF, Tab 49 at 34. He also stat ed
that the whistleblower retaliation was ongoing, and he listed several personnel
actions that he believed were retaliatory. Id. Under these circumstances, we find
that the appellant disclosed a matter that a reasonable person in his position
believed evidenced a violati on of whistleblower protection law s or an abuse of
authority. See Herman , 115 M.S.P.R. 386 , ¶¶ 11 -12; Mogyorossy , 96 M.S.P.R.
652, ¶¶ 12-13; Murphy , 86 M.S.P.R. 131 , ¶¶ 6-7.
¶19 Disclosure D consists of disclosures made during the cours e of the
appella nt’s 2010 Board appeal and his 2010 OSC complaint. IAF, Tab 1 at 32 -33.
In his 2010 Board appeal, he challen ged his nonselection for the PAR position
10
and raised an affirmative defense of whistle blower reprisal. IAF, Tab 1 at 32,
59-60; 0542 ID . In his 2010 OSC complaint, he alleged that the agency took
several actions against him as a result of his protected disclosures. IAF, Tab 1
at 64-65, Tab 4 at 34.
¶20 Because pre -WPEA standards apply to this appeal, it is immaterial whether
the ap pellant’s 2010 Board appeal and OSC complaint constitute protected
activity under 5 U.S.C. § 2302 (b)(9) (A)(i) or (C). See Colbert v. Department of
Veterans Affairs , 121 M.S.P.R. 677 , ¶ 7 (2014) . Nevertheless, the disclosures
contained in his 2010 OSC complaint can be considered under 5 U.S.C.
§ 2302 (b)(8)(B)(i). See id., ¶ 8 (explaining that, under pre -WPEA law,
disclosures contained in an OSC complaint can be protected under
section 2302 (b)(8) ); see also 5 U.S.C. § 2302 (b)(8)(B)(i) (2011) . The appellant’s
OSC complaint raised the substance of his disclosures contained in the May 25,
2010 letter to Senators Collins and Snowe and detailed R.G.’s harassment . IAF,
Tab 1 at 63 -64, Tab 4 at 34. For the reas ons stated above, we find that the
appellant disclosed a matter that a reasonable person in his position believed
evidenced a violation of the regulation concerning high pay or an abuse of
authority . See Herman , 115 M.S.P.R. 386 , ¶¶ 11-12; Mogyorossy , 96 M.S.P.R.
652, ¶¶ 12-13.
¶21 Disclosure E consists of disclosures made in his September and
October 2012 letters to several elected representatives detailing the alleged illegal
practices of his supervisors and requesting an investigation into their actions .
IAF, Tab 1 at 33 , 67-70, Tab 49 at 52 -55. In these letters, the appellant voiced
his concerns , among other things, about the illegal hiring practices within
NAVFAC, including nepotism and the canceling and reposting of vacancy
announcements when R.G.’s and J.W.’s preferred candidates did not make the
certificate of eligible s. IAF, Tab 1 at 67 -70. In his appeal, the appellant included
a “Nepotism Chart,” in which he listed sever al individuals within NAVFAC who
he claimed received their position as a result of nepotism. IAF, Tab 49 at 94 -95.
11
Under these circumstances, we find that the appellant disclosed a matter that a
reasonable person in his position believed evidenced a violation of a law, rule, or
regulation. See Becker v. Department of Veterans Affairs , 76 M.S.P.R. 292 , 297
(1997) (explaining that disclosures that agency offic ials did not post job
announcements, but instead hired friends and relatives , constituted claims of
nepotism and violation of law that may fo rm the basis for an IRA appeal); see
also McDonnell v. Department of Agriculture , 108 M.S.P.R. 443 , ¶¶ 10 -13 (2008)
(finding that the appellant had made a nonfrivolous allegation of statutory
violations of law when she made a disclosure about h iring and selection
improprieties) .
¶22 Disclosure F includes disclosures that the appellant made during a
discussion with the NAVFAC’s Head of Safety on September 15, 2010 , regarding
safety concerns about unsafe scaffolding . IAF, Tab 1 at 34. The appellan t
testified that he informed the Head of Safety that the scaffolding as erected,
which was approximately 27 to 30 feet above the work floor, was moving and not
safe, and that the Head of Safety immediately agreed. HT2 at 333. J.W. testified
that, partly as a result of the “scaffolding incident,” the appellant’s immediate
supervisor , D.W., was removed from his supervisory position. Id. at 403. R.G.
agreed that the scaffolding at issue was a reason for the supervisor’s downgrade
and also agreed that that the scaffolding was “unsafe.” HT1 at 223 -34.
¶23 Concerning a disclosure of a substantial and specific danger to public health
or safety, the inquiry into whether a disclosed danger is sufficiently substantial
and specific to w arrant protection under whistl eblower protection laws is guided
by several factors, including (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. ” Chambers v. Department of the
Interior , 515 F.3d 13 62, 1369 (Fed. Cir. 2008). Under these circumstances, we
find that the appellant disclosed a matter that a reasonable person in his position
believe d evidenced a substantial and specific danger to public health or safety
12
because the appellant, or one of his coworkers, could have suffered substantial
injury had he fallen off the scaffolding or had the scaffolding collapsed . See
Chavez , 120 M.S.P.R. 285, ¶ 21 (finding that disclosures regard ing failure to
change a patient’ s dressings were protected, regardless of whethe r harm actually
occurred, because the potential harm was readily foreseeable ).
The appellant has failed to show that Disclosures G and H are protected.
¶24 Disclosure G concerns disclosures that the appellant made during a meeting
with th e Shipyard Commander a nd J.W. in May 2011 . IAF, Tab 1 at 34. During
the meeting, the appellant raised concerns that NAV FAC had not had a safety
meeting since he joined. Id. Although the appellant claimed that the lack of a
safety meeting violated an agency practice or polic y, he did not show that it
violated a law, rule, or regulation. Id. Under these circumstances, we find that
the appellant has failed to meet his burden of showing that this disclosure is
protected under 5 U.S.C. § 2302 (b)(8) . See Chavez , 120 M.S.P.R. 285, ¶ 24
(finding that the appellant’s disclosure of a violation of agency policy or practice,
as opposed to a law, rule, or regulation, is not protected under
section 2302(b)(8)).
¶25 Disclosure H consists of disclosures that the appellant made in 2010 or
2011 , and then again on March 6, 2013 , regard ing his concerns with mold in
certain areas of Building 43 in the Public Works Sho p. IAF, Tab 1 at 34; HT2
at 335-36. Although t he appellant generally claims that he discussed the mold
problem with R.G. at various time s starting in “roughly 2010, 2011, ” he does not
allege specifics regarding the conversations, including what he said and when he
said it . IAF, Tab 1 at 34; HT2 at 336. An appellant’s disclosures must be
specific and detailed, not vague allegations of wro ngdoing. See Linder v.
Department of Justice , 122 M.S.P.R. 14 , ¶ 14 (2014 ). The appellant’s disclosures
13
here during the 2010 an d 2011 timeframe do not meet this standard and,
therefore , we find that they are not protected under 5 U.S.C. § 2302 (b)(8) .4
The appellant established that the agency took several personnel actions under
5 U.S.C. § 2302 (a)(2)(A) against him.
¶26 Here, the appellant alleged that the agency took several personnel actions
again st him as a result of his protected whistleblowing , including numerous
nonselections, denial of fill -in time and leadership training, and a delay or denial
of an on -the-spot award . IAF, Tab 1 at 36 -40. Under pre -WPEA law, the
definition of “personnel act ion” include d, among other things , the following : a
promotion; a detail, transfer, or reassignment; and “a decision concerning pay,
benefits, or awards, or concerning education or training if the education or
training may reasonably be expected to lead to an appointment, promotion,
performance evalua tion, or other [personnel ] action .” 5 U.S.C.
§ 2302 (a)(2)(A) (ii), (iv), and (ix) (2011) .
¶27 After reviewing the record, including documents related to the appellant’s
two OSC complaints and his grievances, we find that the following 17 actions
constitute personnel actions under 5 U.S.C. § 2302(a)(2)(A) that are properly
before the Board in this appeal because they were exhausted before OSC for the
first time in his second complaint and were not the subject of a grievance :
(1) nonselection for a Production Shop Planner position, which he a pplied to on
November 30, 2011; (2) nonselection for a Production Control position, which he
applied to on December 4, 2011 ; (3) nonselection for an Engineering Technician
4 As to his disclosure concerning the mold problem during an all -hands meeting held on
March 13, 2013, we find th is disclosure irrelevant, as it took place several months after
the latest personnel action in this appeal and could not have been a contributing factor
in any of the personnel actions at issue. See Davis v. Department of Defense ,
106 M.S.P.R. 560 , ¶ 12 (2007) ( holding that, because the complained -of personnel
action predated the protected disclosure, there is no way that the disclosu re could have
contributed to the personnel action), aff’d sub nom . Davis v. Merit Systems Protection
Board , 278 F . App’x 1009 (Fed. Cir. 2008). Therefore, we will not address this
disclosure further.
14
position, which he applied to on December 9, 2011; (4) nonselection for an
Industria l Engineering Technician position, which he applied to on January 20,
2012; (5) nonselection for a PAR position, which he applied to on February 10,
2012;5 (6) nonselection for a Utilities Billing Analyst position , which he applied
to on February 14, 2012; (7) nonselection for an Engineering Technician position,
which he applied to on February 19, 2012; (8) nonselection for an Engineering
Technician position, which he applied to on May 16, 2012; (9) nonselection for
an Administrative Specialist position, wh ich he applied to on M ay 22, 2012;
(10) nonselection for a Maintenance Supervisor position, which he applied to on
June 4, 2012; (11) nonselection for a PAR position, which he applied to on
September 9, 2012; (12) nonselection for a PAR position, which he applied to on
November 2, 2012; (13) nonselection for a Base Support Vehicles and Equipment
Site Director position, which he applied to on November 25, 2012;
(14) nonselection for a Utilities Billing Analyst position, which he appli ed to on
December 4, 201 2; (15) denial of fill -in time; i.e., the opportunity to be an acting
supervisor , between November 2011 and August 2012 ; (16) denial or delay of an
on-the-spot award in September 2010 ;6 and (17) denial of leadership training on
February 5, May 11, and Augu st 9, 2011 .7 IAF, Tab 1 at 36 -40, Tab 49 at 5 -6, 57,
208-09.
5 The appellant identified his nonselection for a temporary PAR position, which he
applied to on July 25, 2011, as a personnel action at issue. IAF, Tab 1 at 38. However,
we find that the appellant has not proven that the agency took a personnel action ag ainst
him here because he asserted that he voluntarily decided to decline the agency’s offer of
the position. Id.
6 In his petition for review, the appellant claims, contrary to the administrative judge’s
conclusion, that his on -the-spot award was denied —not delayed. RPFR File, Tab 1
at 22-24. On remand, the administrative judge shall reexamine the evidence pertaining
to the on -the-spot award and, after making the relevant credibility determinations,
decide whether the personnel action at issue is a dela y or a denial of the award.
7 In the remand initial decision, the administrative judge analyzed “harassment” as a
separate personnel action. RID at 26 -27. Although the Board has found that the
15
The appellant met his burden of showing that his protected disclosures were a
contributing factor in four of the personnel actions taken against him.
¶28 An employee who establishes that he made a p rotected disclosure has the
additional burden of proving by preponderant evidence that his disclosure was a
contributing factor in the covered personnel actions. See Shibuya v. Department
of Agriculture , 119 M.S.P.R. 537 , ¶ 22 (2013). The most common way of proving
that a disclosure was a contributing factor in a personnel action is the
knowledge /timing test. Shannon v. Department of Veterans Affairs , 121 M.S.P.R.
221, ¶ 23 (2014) . Under that test, an appella nt can prove the contributing factor
element through evidence that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of time
such that a reasonable person could conclude that the di sclosure was a
contributing factor in the personnel action. Id. An appe llant may establish an
official’ s constructive knowledge of a protected disclosure by demonstrating that
an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action. Aquino v. Department of Homeland
Security , 121 M.S.P.R. 35, ¶ 19 (2014) . The U.S. Supreme Court has adopted the
term “cat’ s paw” to describe a case in which a particular management official,
acting because of an improper animus, influences an agency official who is
unaware of the improper animus when implementing a personnel action . Id.
(citing Staub v. Proctor Hospital , 562 U.S. 411 (2011)).
creation of a hostile work environment may constitute a per sonnel action under
5 U.S.C. § 2302 (a)(2)(A) if it meets the statutory criteria, i.e., constitutes a significant
change in duties, responsibilities, or working conditions , see Skarada v. Department of
Veterans Affairs , 2022 MSPB 17 , ¶ 16, we need not address that question here.
Specifically, each of the actions alleg ed by the appellant that comprise a potential
hostile work environment claim constitute individual personnel actions under 5 U.S.C.
§ 2302 (a)(2)(A)(ii), (iv), and (ix), and have been analyzed as su ch. Accordingly, those
actions would not also constitute “ any other ” significant change in duties,
responsibilities, or w orking conditions under 5 U.S.C. § 2302 (a)(2)(A)(xi ) (2011) .
16
¶29 Here, the appellant alleges that R.G. and J.W. were the retaliating officials.
IAF, Tab 1 at 36. We found above that Disclosures A, B, C, D, E, and F were
protected under 5 U.S.C. § 2302 (b)(8) . Based on the record, including witness
testimony, w e find that R.G. was aware of Disclosures A, B, and F prior to the
dates of the personnel actions at issue and that J.W. was aware of Disclosure s A
and E prior to the dates of the personnel actions at issue . HT1 at 158-62, 168,
170, 224 (testimony of R.G.); HT2 at 383-84, 404 (testimony of J.W.). As to
Disclosures C and D, we find that the appellant did not show that either R.G. or
J.W. was aware of the disclosures prior to the taking of the personnel actions at
issue . HT1 at 168, 170 (testimony of R.G.) .
The appellant established that his protected disclosures were a
contributing factor in personnel actions 10, 15, 16, and 17.
¶30 The record shows, as to personnel action 10 (nonselection for a
Maintenance Supervisor position ), that R.G. was the chairman of the selection
board and that J.W. was the select ing official. IAF, Tab 36 at 25, 35 ; HT1
at 198-200 (testimony of R.G.) . The appellant applied and the selection took
place less than 2 years after Disclosures E and F. IAF, Tab 35 at 4, Tab 37 at 26 ,
Tab 49 at 91. Under these circumstances, we find th at the appellant has shown
that his nonselection occurred within a period of time such that a reasonable
person could conclude that his protected disclosures were a contributing factor in
the personnel action under the knowledge /timing test.8 See Schnell v. Department
of the Army , 114 M.S.P.R. 83 , ¶ 22 (2010) (finding that a personnel action taken
8 Because we f ind that the decision makers had actual knowledge of the appellant’s
protected disclosures regarding this nonselection, a cat’s paw analysis is not necessary
for the appellant to meet his burden on contributing factor. Nevertheless, on remand,
when the ad ministrative judge performs her clear and convincing analysis, she shall
consider the appellant’s arguments concerning the irregularities in the selection process,
R.G.’s influence over the selection process and panel, and the likelihood that J.W.
would ac cept R.G.’s recommendation without question. RPFR File, Tab 1 at 12 -13.
17
within approximatel y 1 to 2 years of the appellant’ s disclosures satisfies the
knowledge /timing test).
¶31 As to personnel actions 15 (denial of fill -in time ), 16 (delay or denial of an
on-the-spot award ), and 17 (denial of leadership training ), R.G. testified that he
made or had the discretion t o make the decision to deny or delay these personnel
actions, all of which took place within 2 years of the appellant’s protected
disclosures. HT1 at 140, 142, 153, 185; IAF, Tab 1 at 36-38. We similarly find,
therefore, that the appellant has shown that these personnel actions occurred
within a period of time such that a reasonable person could conclude that his
protected disclosures were a contributing factor in them under the
knowledge /timing test. Schnell , 114 M.S.P.R. 83 , ¶ 22 .
The appellant failed to establish that his protected disclosures were a
contributing factor in personnel acti ons 1 -9 and 11 -14.
¶32 Although the appellant generally alleges that R.G. and J.W. played a role in
all of the nonselections at issue, he has not shown that they were involved in
taking personnel actions 1-9 and 11-14 or that they influenced the decision
makers in any way.9 RPFR File, Tab 1 at 4.
¶33 Concerning personnel action s 1 and 9 (his nonselection s for a Production
Shop Planner position and an Administrative Specialist position ), he state d that
he made the certificate of eligible s but was never intervi ewed for the positions .
IAF, Tab 1 at 38 -39. H owever, h e did not present any evidence regarding the
nonselection s, including who made the decision s concerning interviews. In the
9 Although there are 14 nonselections at issue in this appeal, the administrative judge
stated for the record prior to the start of the second day of the hearing that the
appellant ’s prime focus of his appeal was personnel action 10 (his nonselection for a
Maintenance Supervisor position). HT2 at 298 -99. The appellant’s attorney agreed
with this statement and the appellant, during his testimony, agreed as well. HT2 at 299,
306. As a result, the appellant focused much of the hearing on the Maintenance
Supervisor nonselection and presented scant evidence concerning the other
nonselections at issue in this appeal. HT1, HT2.
18
absence of any evidence concerning either R.G.’s or J.W.’s involvement in or
influence over the selection process, he fails to meet his burden that his protected
disclosures were a contributing factor in th e nonselection s. See Salinas v.
Department of the Army , 94 M.S.P.R. 54 , ¶¶ 10-12 (2003) .
¶34 Concerning personnel actions 2 -8 and 11 -12 (his nonselections for a
Production Control position, three Engineering Technician positions, an Industrial
Engineering Technician position, a Utilities Billing Analyst position, and three
PAR positions ), he state d, without more, that he “[n]ever received an eligibility
letter and [was] never interviewed.” IAF, Tab 1 at 39. Concerning personnel
action 13 (his nonselection for a Base Support Vehicles and Equipment Site
Director ), the appellant stated that he was found ineligible even though his
resume supported his eligibility for the position and, concerning personnel action
14 (his nonselection for a Utilities Billing Ana lyst position ), he stated that he was
informed that there was a sufficient number of veterans who applied and that,
therefore, his application was not rated. Id. at 40. He did not present any further
evidence regarding these nonselections.
¶35 The agency , however, presented unrebutted testimony from a Human
Resources (HR) Specialist that the appellant’s supervisors were not involved in
determining whether an applicant was eligible for a position and whether an
application package had been rated highly enoug h to be placed on a certificate of
eligible s. HT2 at 408, 413 -16, 421 -22. Rather, such determinations were made
exclusively by the agency’s HR Services Center for the Northeast . HT2 at 413.
In the absence of any evidence concerning either R.G.’s or J.W .’s involvement in
or influence over the selection process, he fails to meet his burden that his
protected disclosures were a contributing factor in these nonselections. See
Salinas , 94 M.S.P.R. 54 , ¶¶ 10-12.
19
Remand is necessary to determine whether the agency showed by clear and
convincing evidence that it woul d have taken personnel actions 10, 15, 16 , and 17
in the absence of the appellant’s protected disclosures.
¶36 In determining whether an agency has met its burden of showing by clear
and convincing evidence that it would have taken the same personnel action s in
the absence of the protected disclosure s, 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 t o retaliate on the part of the agency officials who were involved in the
decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Soto v. Department of Vete rans Affairs , 2022 MSPB 6, ¶ 11; see 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 will weigh the factors
together to determine whether the evidence is clear and convincing as a whole.
McCa rthy v. International Boundary and Water Commission , 116 M.S.P.R. 594 ,
¶ 44 (2011), aff’d, 497 F. App’ x 4 (Fed. Cir. 2012).
¶37 In its Remand Order, the Board found that , although the administrative
judge made no explicit credibility findings regarding R.G.’s testimony, she
significantly relied on his testimony in making her findings. Remand Order, ¶ 1 8.
The Board noted that it sha red the appellant’s concern regarding the
administrative judge’s finding that the “bullseye” comment, standing alone, was
insufficient to establish a pattern of harassment from which reta liatory animus
could be inferred, and it indicated that a single inci dent may have compelling
evidentiary value . Id., ¶ 20. It also indicated that the context surrounding the
“bullseye” comment was especially troubling . Id. It therefore concluded that the
administrative judge’s finding that the appellant failed to show any retaliatory
motive was overly dismissive and contrary to the guidance set forth in Whitmore .
20
Id. As a result, the Board remanded the appeal and instructed the administ rative
judge to reconsider the strength of the agency’s motive to retaliate, examining the
totality of the evidence presented in the appeal , and to address the credibility of
key witnesses . Id., ¶ 18 n.9, ¶ 21. It further instructed the administrative ju dge
to especially consider the appellant’s arguments in which he identifie d a series of
acts that began shortly after his initial protected disclosure, including the letter of
reprimand and the performance appraisal conducted by R.G. a few days after the
“bullseye” comment. Id., ¶ 21.
¶38 In the remand initial decision, however, t he administrative judge did not
make any explicit credibility determinations regarding R.G. ’s testimony. While
she did not credit his denial of making the “bullseye” comment, she nevertheless
implicitly credited his testimony in finding either that the appellant failed to meet
his burden on contributing factor or that the agency met its clear and convincing
burden . RID at 23 -28. Further, the administrative judge made no explicit
findings as to the agency’s motive to retaliate in the remand initial decision, and
she once again summarily conclude d that the “bullseye” comment did not
establish a pattern of haras sment directed at the appellant . RID at 28; Remand
Order, ¶ 20. In reachi ng her conclusion , she did not examine, as instructed, the
appellant’s arguments in which he identifie d a series of acts that began shortly
after making D isclosure A, including the letter of reprimand and the performance
appraisal conducted by R.G. a few days after the “bullseye” comment. Remand
Order, ¶ 21. Therefore, we find that the administrative judge did not fully
address the appellant’ s arguments and evidence in this case that lend support to
his claim that the agency did not prove by clear and convincing evidence that it
would have taken the same personnel action s in the absence of his disclosures .
Accordingly, we remand the appeal for further adjudication c onsistent with this
Remand Order . See Durr v. Department of Veterans Affairs , 119 M.S.P.R. 195 ,
¶¶ 7-15 (2013).
21
¶39 On remand, the admi nistrative judge shall examine , under Whitmore ,
whether the agency met its burden of showing by clear and convincing evidence
that it would have taken the following personnel actions in the absence of the
appe llant’s protected disclosures: (10) nonselecti on for a Maintenance
Supervisor position; (15) denial of fill -in time; (16) delay or denial of an
on-the-spot award; and (17) denial of leadership training. In conducting her
analysis, the administrative judg e shall make explicit credibility determinations
of key witnesses (especially R.G. and J.W. ), perform an analysis of the Carr
factors, reconsider the record as a whole , and make thoroughly reasoned findings
that address both the evidence supporting her conclusions and the countervailing
evidence. See Whitmore , 680 F.3d at 1374-76.
ORDER
¶40 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CORRIVEAU_JAMES_A_PH_1221_14_0377_B_1_REMAND_ORDER_2066169.pdf | 2023-09-06 | null | PH-1221 | NP |
2,735 | https://www.mspb.gov/decisions/nonprecedential/GIBBY_NATHANIEL_J_AT_0752_18_0498_I_1_SPLIT_VOTE_ORDER_2066229.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NATHANIEL J. GIBBY,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0752 -18-0498 -I-1
DATE: September 6, 2023
Nathaniel J. Gibby , Warner Robins, Georgia, pro se.
Frank M. Wood , Esquire, Robins Air Force Base, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal . The two Board members cannot agree on the
disposition of the petition for review. Therefore, the initial decision now
becomes the final decision of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulations, section 1200.3(b) ( 5 C.F.R.
§ 1200.3 (b)). This decision shall not be considered as precedent by the Board in
any other case. 5 C.F.R. § 1200.3 (d).
¶2 Based on the initial decision, which now becomes the final decision of the
Board, the parties’ obligations are set out below:
¶3 The agency must cancel the removal and retroactively restore the appellant
effective May 5, 2018. See Kerr v. National Endow ment for the Arts , 726 F.2d
2
730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶4 The agency must 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. The
appellant must cooperate i n 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 its obligations. If there is a
dispute about the amount of back pay, in terest due, and/or other benefits, the
agency must pay the appellant the undisputed amount no later than 60 calendar
days after the date of this decision.
¶5 The agency must tell the appellant promptly in writing when it believes it
has fully carried out its obligations and of the actions it took to carry out its
obligations. The appellant, if not notified, should ask the agency about its
progress. See 5 C.F.R. § 1201.181 (b).
¶6 No later than 30 days after the agency tells the appellant that it has fully
carried out its obligations, 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 a gency did not fully carry out its obligations. The petition should contain
specific reasons why the appellant believes that the agency has not fully carried
out its obligations, and should include the dates and results of any
communications with the agenc y. 5 C.F.R. § 1201.182 (a).
¶7 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accountin g Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency must timely provide DFAS or NFC with all
documentation necessary to process payments an d adjustments resulting from the
3
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
You must file your attorney fees motion with the office that issued the
initial decision on your appeal.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a . The regulations may be found at 5 C.F.R. § 1201.202 . If you
believe you meet these requirements, you must file a motion for compensatory
damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE APPELL ANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of the final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) ( 5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request via commercial delivery or by a m ethod requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very c areful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703 (b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representa tive receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discriminati on based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court -appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. 42 U.S.C. § 2000e -5(f) and
29 U.S.C. § 794a .
5
Other Claims: Judicial Review
If you want to r equest review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302 (b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not w ant to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
this order. See 5 U.S.C. § 7703 (b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
choose to file, be very care ful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, https://www.mspb.gov/appeals/uscode.htm .
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular
releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice , and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Boa rd neither endorses the services
6
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 e arning 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 CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the infor mation/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 amou nt 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 emplo yee 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 include d 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. | GIBBY_NATHANIEL_J_AT_0752_18_0498_I_1_SPLIT_VOTE_ORDER_2066229.pdf | 2023-09-06 | null | AT-0752 | NP |
2,736 | https://www.mspb.gov/decisions/nonprecedential/THOMAS_ANITA_FAY_AT_0752_14_0008_I_1_FINAL_ORDER_2066251.pdf | UNITED STATES OF AME RICA
MERIT SYSTE MS PROTECTION BOARD
ANITA FAY THOMAS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -14-0008 -I-1
DATE: September 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
LaKesha B. Shahid , Montgomery, Alabama, for the appellant.
Tsopei T. Robinson , Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has fil ed 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 initi al 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 consis tent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we 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 Prior to her removal, the appellant was an Employment Specialist
(Coordinator ), GS -0301 -12, at the Montgomery, Alabama , Veterans Affairs
Regional Office (VARO) . Initial Appeal File (IAF), Tab 5 at 4.2 The appellant
was removed based on three charges: (1) improper possession of protected
information (13 specifications) , (2) misuse of position, and (3) unauthorized
disclos ure of private information.3 Id. at 22-27, 58. She filed this appeal. IAF,
Tab 1. After holding a hearing, the administrative judge sustained all three
charges, determined that the agency established that a nexus existed between the
proven charges and the efficiency of the service, and found that the appellant
failed to prove her several affirmative defenses. IAF, Tab 31, Initial Deci sion
2 When citing to IAF, Tab 5, we refer to the page numbers generated by the Board’s
e-Appeal system ( e.g., here, we cite to IAF, Tab 5 at 4 of 332).
3 The agency p roposed the appellant’s removal based on the three sustained charges and
two additional charges, lack of candor and failure to follow instructions
(2 specifications) . IAF, Tab 5 at 22 -27. The agency’s deciding official found that t hese
additional charges were unsubstantiated and did not sustain them . Id. at 58.
3
(ID) at 5-48; IAF, Tab 25 at 3 -11.4 Finally, t he administrative judge found that
the agency considered the relevant factors and the penalty of removal did not
exceed the tolerable limits of reasonableness , and he thus affirmed the agency’s
removal action. ID at 49 -57. The appellant has filed a petition for review .
Petition for Review (PFR) File, Tab 3.
The administrative judge properly sustained the first charge , improper possession
of protected information .
¶3 On review, t he appellant challenges the administrative judge’s findings of
fact regarding the first and primary charge , improper possession of protected
information . Id. at 9-10. The appellant had previously served as a Staff Assistant
in the Office of the As sistant Director of VARO . IAF, Tab 14, Ex. B at 2. She
was reassigned to the Employment Coordinator position in the Vocational
Rehab ilitation and Employment Division (VR&E) on September 25, 2011. IAF,
Tab 5 at 5. On May 17, 2012, P.S., a VARO employee , reported to then -Direct or
R.R. that the first page of a final agency decision (FAD) in an EEO complaint
that she had filed had been discovered on a color printer within the VR&E area.
Id. at 12-13. The a gency determined that the appellant had recent ly access ed the
Human Resour ces data files and had used the color printer that week. Id. at 7,
13-14. An examination of the appellant’s computer revealed a collection of
“emails and documents from her many years working in the Director’s Office that
may be in appropriate for her to maintain .” Id. at 7-8. Based on this finding , the
agency convened an administrative investigation board (AIB) , which ultimately
concluded that the appellant had obtained and misused information pertaining to
several agency employees, including P.S . Id. at 9 -10, 17-20. The agency
identified 13 groups of documents that the AIB determined had been improperly
4 The appellant does not challenge the administrative judge’s findings regarding
harmful procedural error and age discrimination on review, and we do not disturb those
findings.
4
saved to the appellant’s computer. Id. at 22 -25. These groups of documents
formed the basis for the 13 specifications of the charge. Id.
¶4 The admin istrative judge found that the agency proved all specificati ons of
the charge. ID at 5 -21. The appellant conceded that the documents were saved to
her computer, and, a bsent any evidence to suggest that someone else had saved
them, the administrative judg e found that the agency established that the
appellant had saved the m to her computer . ID at 6. The administrative judge
found that the appellant’s ret aining the documents potentially violated a number
of regulations and policies pertaining to informatio n management, computer
security, and ethical conduct . ID at 6 -8. He then described each group of
documents included in the charge, concluding that at least one of the documents
described in each group contained protected information. ID at 8 -13.
¶5 The app ellant’s arguments on review challenge the agency’s final element
of proof, which was that the appellant did not need the protected information she
possessed to fulfill her official duties. ID at 13. The administrative judge’s
finding for this element relied upon his assessment of the appellant’s credibility
when she testified about her reasons for saving the documents. ID at 13 -21. He
found significant discrepancies between the testimony that the appellant gave at
the hearing and th e testimony she had given to the AIB. He pointed out that,
during the hearing, the appellant testified that she saved the documents while
performing her duties as a Staff Assistant, whereas her testimony before the AIB
suggested that she was stockpiling d ocuments to use in support of corruption
allegations against agency management or for the purpose of supporting her own
potential EEO c omplaints . ID at 15, 17.
¶6 The administrative judge closely assessed the credibility of the appellant’s
testimony pursua nt to the factors in Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987) . The administrative judge found that portions of th e
appellant’s hearing testimony supported the proposition that she had testified
truthfully during the AIB, and that she had a stronger incentive to shade her
5
testimony and justify her actions at the Board hearing. ID at 18 -19. The
administrative judge a lso considered the appellant’s demeanor. ID at 19 -20. He
concluded that her hearing testimony had not been completely forthright and that
she shaded her testimony to place her actions in the light most beneficial to her
legal position. ID at 20.
¶7 The Board must give deference to an administrative judge ’s credibility
determinations when they are based, explicitly or implicitly, on observ ing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “su fficiently sound” reasons for doing so. Haebe
v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . Sufficiently
sound reasons include findings that are incomplet e, inconsistent with the weight
of the evidence, and do not reflect the record as a whole. Faucher v. Department
of the Air Force , 96 M.S.P.R. 203 , ¶ 8 (2004). The appellant has not offered any
such reasons that would justify overturning the administrative judge’s finding .
Accordingly, we will not disturb his findings.
The administrative judge properly sustained the s econd charge, misuse of
position.
¶8 The appellant argues that the administrative judge failed to consider the
unique facts surrounding the charge that she had misuse d her position . PFR File,
Tab 3 at 10 -11. The charge arises from the appellant’s accessing and retaining
documents while she was a Staff Assistant in the Director’s office , including a
metrics worksheet that she later used in her personal EEO complaint based on her
nonselection for the Human Resources Specialist position . IAF, Tab 5 at 14-15,
25, Tab 6 at 244 -45. The appellant admits that she provided her attorney wi th the
metrics worksheet , but she asserts that she had no other choice because the
agency failed to produce it during the investigation of her EEO complaint . PFR
File, Tab 3 at 11.
¶9 The administrative judge found the circumstances here similar to those in
Williams v. Social Security Administration , 101 M.S.P.R. 587 (2006) . ID
6
at 22-24. In Williams , the appellant used h is access to the agency’s computer
systems to print workload reports for the employees in his office , and he gave
unredacted copies to his attorney for use in his EEO complaint . Williams ,
101 M.S.P.R. 587 , ¶ 3. When his attorney offer ed those reports as evidence
during a hearing before the Equal Employment Oppor tunity Commission (EEOC) ,
the EEOC administrative judge sustained the agency’s objection that releas ing the
reports violated the Privacy Act and confiscated the m. Id., ¶ 4. The agency
subsequently removed Williams for failure to comply with the rules and
regulations regarding the authorized access and disclosure of Social Security
systems and records and violations of the agency’s Standards of Conduct . Id.,
¶ 5. Although an arbitrator mitigated the removal to a 90-day suspension, he
nevertheless found that Williams had improperly accessed and disclosed the
documents in question, though not for personal gain . Id., ¶ 6. When the Board
considered the case on review, it affirmed the arbitrator’s decision , explaining
that the documents had been obtained improperly. Id., ¶ 13 (citing O’Day v.
McDonnell Douglas Helicopter Co mpany , 79 F.3d 756 , 763 -64 (9 th Cir. 1996));
cf. Gill v. Department of Defense , 92 M.S.P.R. 23, ¶ 22 (2002) (finding that the
agency did not prove that the appellant’s disclosure of documents to an EEO
counselor violated the Privacy Act because, among other things , the EEO
counselor was acting within the scope of her duties and need ed the disclosed
records to perform her duties).5 The administrative judge here found that the
5 In Smith v. Depa rtment of Transportation , 106 M.S.P.R. 59 (2007), the Board reached
the same conclusion based on somewh at similar circumstances. The Board later
reversed its published decision in Smith after the EEOC non -concurred with the Board’s
findings. Smith v. Department of Transportation , MSPB Docket No. AT -0752 -05-0901 -
E-1, Final Order (Apr. 25, 2012); Smith v. LaHood , EEOC DOC 0320080085, 2012 WL
1076119 (Mar. 21, 2012). Smith is distinguishable from the instant case, however. In
Smith , the EEOC drew an adverse inference against the agency because it had not
obeyed the Commission’s order to produce comparator evidence on the penalty. Smith ,
2012 WL 1076119 at *5-6. In addition, in Smith, the appellant came across the
7
appellant , like Williams, had not obtained the metrics work sheet through proper
channels and had instead used her access to agency documents to improperly copy
the d ocument from the Director’s inbox. ID at 23. He pointed out that she could
have asked her attorney to advise the agency where to find the documents or
sought the information therein through testimony of the interview panel . ID
at 23-24. The administrative judge concluded that the agency proved that the
appellant misused her position. ID at 24 .
¶10 On review, t he appellant seeks to distinguish Williams from he r case. She
argues that she first sought to obtain the worksheet through official channels
while her complaint was under investigation but that the agency claimed that it
could not locate the document . PFR File, Tab 3 at 10-11. For that reason, s he
argues , the agency’s hands are unclean and she had no other option but to use her
access to the agency’s computer systems to obtain the worksheet . Id. at 11. Even
assuming misconduct by agency personnel during the EEO inv estigation, we find
that the appellant nevertheless misused her position to obtain the metrics
worksheet. Had her complaint proceeded to a hearing, she could have deposed
the persons on the interview panel about their hiring decision or called such
person s as witnesses to obtain the information on the worksheet . Additionally,
during the AIB, the appellant admitted her wrongful motivation in obtaining the
worksheet , which is key evidence that she understood the impropriety of her
actions . IAF, Tab 5 at 18 , Tab 6 at 240 -41, 244 -45. Accordingly, we find that
the administrative judge properly sustained the charge.
The appellant failed to establish that the agency retaliated against her based on
prior EEO activity .
¶11 The appellant asserts that the administrative judge incorrectly concluded
that she failed to show that the agency retaliated against her for prior EEO
documents in the course of his official duties. No such circumstances exist here or in
Williams , and thus we find Williams to be applicable.
8
activity. PFR File, Tab 3 at 15-16; ID at 31 -39. To establish a claim of EEO
reprisal, an appellant must show that the prohibited cons ideration was at least a
motivating factor in the personnel action at issue. Pridgen v. Office of
Management and Budget , 2022 MSPB 31 , ¶¶ 21 -22.
¶12 The administrative judge found that the appellant established that she
engaged in protected activity by filing an EEO complaint based upon her
nonselection as a Human Resources Specialist . ID at 33. He also found that the
deciding of ficial was aware of her protected activity when she made the decision
to remove her. Id. Based on a thorough review of the record, however, he
concluded that the appellant failed to prove that her EEO activity was a
motivating factor in the removal decis ion. ID at 38.
¶13 On review, the appellant argues that the administrative judge failed to give
due weight to her testimony regarding her meeting with the deciding official
shortly after the deciding official became the Acting Director of VARO to report
retal iation by her supervisor, C.H., for EEO activity.6 PFR File, Tab 3 at 15;
HCD 2 (testimony of the appellant) . The appellant explains that the
administrative judge acknowledged that she met with the deciding official but
stressed that there was no testimo ny as to what was discussed in the meeting.
PFR File, Tab 3 at 15 ; ID at 33 n.16. She asserts that she gave the deciding
official a spreadsheet documenting the retaliator y activity during the meeting.
PFR File, Tab 3 at 15. Even considering the deciding official’s testimony that
such a meeting may have occurred and that she might have seen the spreadsheet,
HCD 1 (testimony of L.W. ), the appellant has not shown that the administrative
6 The appellant asserts that the administrative judge “incorrectly stated in his decision
that the deciding official had no knowledge of the appellant’s prior EEO activity.” PFR
File, Tab 3 at 15. We find, to the contrary, that the administrative judge fou nd that the
deciding official was aware of the appellant’s protected EEO activity when she made
the removal decision. ID at 33. Knowledge of activity, however, does not necessarily
mean it was a motivating factor.
9
judge incorrectly characterized the natur e of the meeting. ID at 33 n.16. The
deciding official’s testimony shows that her recall of the meeting was tenuous and
uncertain. HCD 1 (testimony of L.W.). As the administrative judge pointed out,
the appellant did not submit the spreadsheet for the record. ID at 33 n.16. Her
failure to submit the spreadsheet weakens her claims about the nature of the
meeting because it was within her ability to provide supporting documentation.
Based in part on demeanor evidence, the administrative judge also foun d that her
assertions regarding the meeting were less than credible. ID at 20. Her argument
is thus unavailing.
¶14 The appellant further argues that the proposing and deciding officials may
have known about and been influenced by her prior EEO activity, eve n absent
their direct involvement in that activity. PFR File, Tab 3 at 15. She argues that
the incoming Acting Director may have been briefed about employees that the
management perceived to be troublemakers. Id. She points to her testimony that
R.R., a previous Director, once told her that he had heard she was a “giant killer,”
a comment suggest ing to her that such briefings occur red. PFR File, Tab 3 at 15;
HCD 2 (testimony of the appellant). The appellant additionally points to
testimony that R.R. t hreatened her job and that of another employee if they
reported him for wrongdoing. PFR File, Tab 3 at 15 -16; HCD 1 (testimony of
L.F.); HCD 2 (testimony of the appellant). The appellant’s argument here is
purely speculative. She has not shown that R.R. exercised any influence over or
had contact with the proposing or deciding officials after his departure.
Therefore, we find that these assertions do not provide a basis for disturbing the
initial decision.
¶15 The appellant also asserts that the record cont ains “direct” evidence of
retaliatory motive based on the removal proposal notice’s references to her EEO
activity in the second charge ( misuse of position ) and to the monetary settlement
10
of her EEO complaint in a specification of the first charge .7 PFR F ile, Tab 3
at 16. The administrative judge considered the agency’s reliance on the
appellant’s disclosure of protected information during the course of pursuing her
EEO complaint as circumstantial evidence of retaliation. ID at 35, 38. The
administrativ e judge explained in detail why th e record as a who le did not support
a finding that the agency’s action was motivated by her protect ed EEO activity.
ID at 33 -39.
¶16 We agree with the administrative judge’s finding that the agency intended
to hold the appell ant accountable for violating rules and regulations regarding the
proper access and use of protected information within the agency’s possession
and control. ID at 34. We concur with the administrative judge’s conclusion that
she failed to meet her burden of establishing that her protected EEO activity was
a motivating factor in the agency’s decision to remove her. ID at 38 .8
The appellant did not establish that her protected disclosures were a contributing
factor in the agency’s decision to remove her .
¶17 The appellant asserted reprisal for whistleblow ing disclosures as an
affirmative defense , arguing that she had submitted the documents saved on her
hard drive as part of protected disclosures to a former Director and to agency
investigators . IAF, Tab 1 at 6, Tab 14 at 10 -11, Tab 25 at 3 -5. The
administrative judge found that the appellant proved that she made protected
7 The second charge states that the appe llant “admitted to using [her] access as a
Director’s Office staff member to access and save nonpublic information on [her]
computer for use in [her] personal EEO case and to show corruption within the
[agency].” IAF, Tab 5 at 25. The third specification of the first charge states that the
appel lant “saved to [her] computer . . . confidential Merit Promotion documents related
to a Human Resources Specialist position for which [she] applied . . . [and] presented
this information to [her] attorney in connection with [her] personal EEO Complaint for
nonselection, which led to a monetary settlement with the Agency.” Id. at 22.
8 Because we discern no error with the administrative judge’s motivating factor
analysis, we do not reach the question of whether discrimination or retaliation was a
“but -for” cause of the removal action. See Pridgen , 2022 MSPB 31 , ¶ 20-22, 29 -33.
11
disclosures but did not establish that those disclosures contributed to the agency’s
removal decision. ID at 39-48. On review, the appel lant asserts that the
administrative judge improperly decided the issue of contributing factor . PFR
File, Tab 3 at 11 -14.
¶18 To establish an affirmative defense of reprisal for whistleblowing
disclosures , an appellant must show by preponderan t evidence that she made a
protected disclosure under 5 U.S.C. § 2302 (b)(8) and that her protected disclosure
was a contributing factor in the agency ’s personnel action.9 Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537, ¶¶ 19-20 (2013) ; see Alarid v.
Department of the Army , 122 M.S.P.R. 600 , ¶ 12 (2015) (stating that a prohibited
personnel practice affirmative defense in a chapter 75 appeal that independently
could form the basis of an individ ual right of action appeal must be analyzed
under the burden -shifting scheme set forth in 5 U.S.C. § 1221 (e)). One way of
establishing contributing factor is the knowledge/timing test, which is se t forth in
5 U.S.C. § 1221 (e)(1). Alarid , 122 M.S.P.R. 600 , ¶ 13. Under that test, an
appellant can prove the contributing factor element through evidence that the
official taking the personnel action knew of the protected 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.
5 U.S.C. § 1221 (e)(1); Alarid , 122 M.S.P.R. 600 , ¶ 13. Even i f the appellant fails
to satisfy the knowledge/timing test, the appellant may establish contributing
factor through 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
9 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 a ffect the outcome of the appeal, nor does it affect the
relevant holdings of the case law cited in this Final Order.
12
whether those individuals had a desire or motive to retaliate against the appellant.
Alarid , 122 M.S.P.R. 600 , ¶ 13 n.6.
¶19 Here, t he appellant specifically alleged that she had made various
disclosures regarding misconduct by the former D irector , R.R. IAF, Tab 1 at 6,
Tab 14 at 10 -11. The appellant testified that she made these disclosures by email
to another former Director, M.W. HCD 2 (testimony of the appellant) ; IAF,
Ex. L. The appellant submitted a copy of an email mes sage to M.W. dated
April 27, 2012, in which she accused R .R. of various acts of misconduct
pertaining to misus e of his government cell phone and credit card and of the
agency canteen fund , as well as claiming that he failed to take action against an
employee alleged to have committed misconduct , forced the appellant to buy
items for the office us ing her personal credit card , and provid ed an agency
manager with an accommodation and handicapped parking space without
supporting medical documentation. IAF, Tab 14 , Ex. L . The email also stated
that five employees , including the appellant herself and P.S., had filed EEO
complaints during the prior year. Id. In June and July 2012, t he appellant also
discussed these and other allegations of wrongdoing with an investigative team
led by the agency’s New Orleans Regional Director . IAF, Tab 14, Ex. J . The
appellant testified that she gave the team documents show ing that P .S.’s EEO
complaint had a basis in fact , that the agency had failed to comply with a posting
requirement contained within the EEOC’s order issued for P.S.’s complaint , and
that her supervisor had discriminated against employees on three different
occasions without suffer ing any consequences. HCD 2 (testimony of the
appellant) . The team documented several of the appellant’s allegations in its
report. IAF, Tab 14 , Ex. J.
¶20 Based on this evidence, the administrative judge found that the appellant
showed that she had made “at least some” protected disclosures. ID a t 45. The
administrative judge found, for example, that the disclosures the appellant made
to M.W. and the investigative team regarding R.R.’s misuse of his agency cell
13
phone and travel card were protected , based on the fact that she had personal ly
observ ed the misconduct and knew the pertinent rules and regulations. ID
at 45-46. He found, however, that the appellant failed to establish that either the
proposing or deciding official knew about her disclosures during the relevant
period. ID at 46. Although t he appellant provided a letter of support to the
deciding official from M.W. , in which M.W. mention ed that she had reported
“serious” allegations of misconduct by R.R., the administrative judge found that
she failed to show that M.W. had informed either the proposing or deciding
official about the actual content of her disclosures . Id.; IAF, Tab 1 4, Ex. I . The
administrative judge found no evidence that either the proposing or deciding
official knew about the appellant’s disclosures to the inves tigat ive team or had
seen the team’s final report, or that any of the investigators had contacted the
proposing or deciding official. ID at 46. The administrative judge thus
concluded that the appellant failed to establish that the proposing or deciding
official s had either actual or constructive knowledge of the disclosures .10 Id.
¶21 The administrative judge assigned significant weight to two facts. First, the
documents the appellant alleged ly saved for purposes of reporting
mismanagement and corruption do not specifically relate to the disclosures she
made to M.W. or to the investigative team ; second, her AIB testimony did not
establish any linkage between the documents and her disclosures . ID at 46-47;
IAF, Tab 6 at 519 -20. Instead, the documents pertain to other matters, including
the appellant’s personal EEO c omplaint , her promotion to Employment Specialist,
10 The administrative judge also considered the possibility that the proposing and
deciding officials might have perceived the appellant as a whistleblower ba sed on her
general allegations that she had participated in an agency investigation conducted by
the New Orleans Regional Director and that she retained agency documents alleging her
intention to report misma nagement and corruption. ID at 48 n.27. He fou nd, however,
that she had never alleged that she was perceived as a whistleblower. Id.
14
and agency investigations of other employees.11 IAF, Tab 5 at 22-25. We thus
concur with the administrative judge’s finding that the appellant failed to prove
that her disclosures regarding R.R. contributed to the agency’s decision to remove
her.
¶22 On review, t he appellant a sserts that the administrative judge’s finding s are
erroneous. PFR File, Tab 3 at 11 -14. She expl ains that the deciding official , who
was Acting Director when she was removed, initially testified that she did not
know the appellant a nd had acted solely based on the contents of the evidence
file, but she later testified that she “probably did” meet with the appellant prior to
the proposed removal. Id. at 13; HCD 1 (testimony of L.W. ). She further
explains that the deciding official told her during the meeting that she did not
want to hear anything about what the previous Directo r might have done . PFR
File, Tab 3 at 13. The appellant asserts that the deciding official had actual
notice of her disclosures , and given the timing of the meeting —3 months before
the initial notice of proposed remo val—she establish ed under the
knowledg e/timing test that her disclo sures contributed to the agency’s removal
action .12 Id. at 13 -14.
¶23 The appellant’s argument relies upon speculati on. As discussed supra , the
deciding official did not testify extensively regarding her discussion with the
11 We find that the EEO activity the appellant raises on review did not concern
remedying an alleged violation of 5 U.S.C. § 2302 (b)(8), and thus it is appropriately
addressed supra in the discussion of the appellant’s allegations of retaliation for EEO
activity, rather than under the framework set forth in 5 U.S.C. § 1221 (e). See 5 U.S.C.
§ 2302 (b)(9)(A); Edwards v. Department of Labor , 2022 MSPB 9 , ¶¶ 10 -13, 20, 22 -23
(reaffirming that allegations of retaliation for exercising a Title VII right do not fall
within the scope of section 2302(b)(8) or section 2302(b)(9)(A)(i) ), aff’d, No. 2022 -
1967, 2023 WL 4398002 (Fed. Cir. J uly 7, 2023) ; Mattison v. Department of Veterans
Affairs , 123 M.S.P.R. 492 , ¶ 8 (2016) .
12 The agency’s first proposal notice was rescinded, as were the decision letters
resulting from it, and the appellant was removed based on the second proposal notice.
IAF, Tab 5 at 22 -27, 58 -61, Tab 14, Exs. W, GG -II, KK.
15
appellant during the meeting, and we found that , in her testimony regarding the
meeting, she sounded uncertain as to what had transpired. HCD 1 (testimony of
L.W.). The appellant did not submit the spreadsheet she alleges to have shown
the deciding offic ial. ID at 33 n.16. Accordingly, we find that the appellant has
not offered any basis for us to disturb the administrative judge’s finding.
The Board need not determine whether the agency could have established b y clear
and convincing evidence that it wo uld have removed the appellant absent her
protected disclosures .
¶24 The appellant argues on review that the agency failed to establish b y clear
and convincing evidence that it would have removed her anyway because the
agency was already under scrutiny and her own whistleblowing would further
damage its reputation . PFR File, Tab 3 at 14 -15. The administrative judge ,
however, did not reach this issue because he did not need to do so after finding
that the appellant failed to establish that the deciding officia l had actual or
constructive knowledge of her protected disclosures. ID at 48; see 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) . The appellant’s argument is thus unavailing.
The agency considered the relevant factors and exercised management discretion
within tolerable limits of reasonableness .
¶25 Normally, the Board will review an agency -imposed penalty only to
determine if the agency considered all the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Douglas v.
Veterans Administration , 5 M.S.P.R. 280 , 306 (1981). If the Board sustains all of
the charges , the agency’s penalty determination is entitled to deference and
should be reviewed only to determine whether it is within the parameters of
reasonableness. Payne v. U.S. Postal Service , 72 M.S.P.R. 646 , 650 (1996). In
addition, when all charges are sustained , the Board may mitigate the agency’s
original penalty to the maximum reasonable penalty only when it finds the
16
agency’s original penalty to be too severe. Lachance v. Devall , 178 F.3d 1246 ,
1260 (Fed. Cir. 1999).
¶26 The appellant argues that the penalty was unduly harsh . She points out that
the agency initially proposed her removal on five charges but only sustained three
of those charges . PFR File, Tab 3 at 17; IAF, Tab 5 at 58. She asserts that the
reduction in the number of charges would require the agency to reduce the
penalty. PFR File, Tab 3 at 17. She further asserts that the deciding official
failed to consider the mitigating circumstances in determining the penalty ,
including a lack of prior discipline in 27 years of service , the performance awards
she had received, and her good work ethic . Id. at 17 -18. She a dditionally asserts
that the deciding official failed to consider that she was subject to a hostile work
environment in retaliation for her EEO activities and that the hostile work
environment affected her health to the point that she qualified for disability
retirement payments under Social Security .13 Id. at 18.
¶27 All of these matters were thoroughly a ddressed in the initial decision. ID
at 49-56.14 Id. We agree and fin d that the appellant has not shown any material
error in the initial decision.
13 The appellant appended to her pe tition for review a February 25, 2016 award letter
from the Social Security Administration and correspondence, dated March 5, 2016,
from the Office of Personnel Management approving her application for disability
retirement. These documents are dated afte r the close of the record before the
administrative judge but before the issuance of the initial decision. Even accepting that
they meet the standard for “new” evidence, we find that the information they contain is
not of sufficient weight to change the o utcome.
14 In sustaining the agency’s penalty, the administrative judge rejected the appellant’s
claim that she was subjected to a harsher penalty than similarly situated employees
were . ID at 52 -56. As discussed supra , on review, the appellant challenges the
administrative judge’s finding that her testimony was less than credible regarding the
more lenient penalties assessed upon employees who committed more serious
misconduct than hers, but we discern no reason to disturb the administrative judge’s
well -reasoned credibility findings. PFR File, Tab 3 at 19 .
In adjudicating the appellant’s disparate penalty claim, th e administrative judge cited to
the standard for assessing such a claim set forth in Woebcke v. Department of Homeland
17
NOTICE OF APPEAL RIG HTS15
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
Security , 114 M.S.P.R. 100 , ¶ 20 (2010), and Villada v. U.S. Postal Service ,
115 M.S.P.R. 268 , ¶ 10 (2010). ID at 52. In Singh v. U.S. Postal Service , 2022 MSPB
15, ¶¶ 9-18, the Board overruled Woebcke and Villada to the extent they held that broad
similarity between employees was su fficient to shift the burden to the agency to explain
the difference in treatment, allowed for a seemingly limitless universe for potential
comparators, and construed the consistency of the penalty factor to be the sole outcome
determinative factor. We re instated the former legal standard for ana lyzing disparate
penalty claims : whether the agency knowingly and unjustifiably treated employees who
engaged in the same or similar offenses differently. Id., ¶¶ 10, 13 -14. Although the
administrative judge did not have the benefit of Singh when he issued the initial
decision, we find that he properly determined that the appellant failed to make an initial
showing that the agency treated similarly situated employee s differently and thus did
not establish her disparate penalty claim. ID at 56.
15 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most a ppropriate in any matter.
18
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given 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 tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
19
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) a nd 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you re ceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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:
20
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 rev iew either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.16 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:
16 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by t he President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of comp etent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | THOMAS_ANITA_FAY_AT_0752_14_0008_I_1_FINAL_ORDER_2066251.pdf | 2023-09-06 | null | AT-0752 | NP |
2,737 | https://www.mspb.gov/decisions/nonprecedential/MITCHELL_RENEE_L_SF_1221_18_0199_W_1_FINAL_ORDER_2065548.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RENEE L. MITCHELL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -18-0199 -W-1
DATE: September 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Renee L. Mitchell , Bristol , Connecticut, pro se.
Erin L. Collins , Esquire, Las Vegas, Nevada, 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 her individual right of action appeal for failure to prosecute. On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orde rs,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Boar d
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
petition for review, the appellant asserts that she was never notified of a hearing2
and was unaware that she was required to consult the Board’s e -Appeal Online
website to obtain hearing info rmation. Petition for Review File, Tab 1.
Generally, we grant petitions such as this one only in the following
circumstances: 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 pe tition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant’s assertions do not persuade us that the administrative judge
abused her discretion in dismissing this appeal. As a registered e -filer, the
appellant consented to accept all documents issued by the Board in electronic
form, and she was required by regulation to monitor h er case at the Repository at
e-Appeal O nline to ensure that she received all case -related documents . Initial
Appeal File (IAF) , Tab 1 at 2; see 5 C.F.R. § 1201.14 (j)(3). While her appeal
was pending below, the appellant fail ed to appear for two scheduled prehearing
conferences and also failed to address the Board’s jurisdiction over this appeal
even though the administrative judge issued three orders explicitly directing her
to do so. IAF, Tab 3 at 7 -8, Tab 8 at 1-2, Tab 11 at 2, Tab 12, Initial Decision
2 The administrative judge dismissed this appeal without holding a hearing. Initial
Appeal File (IA F), Tab 12, Initial Decision at 1. The appellant is apparently referring
to the status conference or the close of record conference. IAF, Tab 4, Tab 11 at 2 .
3
at 2 n.1 . Thus, the record shows that the appellant did not exercise due diligence
in prosecuting her appeal. Therefore, we find that the administrative judge
properly exercised her discretion to impose the sanction of dism issal with
prejudice.3 See Williams v. U.S. Postal Service , 116 M.S.P.R. 377 , ¶¶ 7 -9 (2011);
5 C.F.R. § 1201.43 (b).
¶3 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 On July 6, 2021, after the record closed on review, the appellant filed two pleadings.
The Acting Clerk of the Board rejected one of these pleadings, and we decline to
address it furth er here. PFR File, Tab 5. The second pleading was an untimely reply to
the agency’s response to the appellant’s petition for review. PFR File, Tab 4. The
Board’ s regulations provide 10 days to file a reply after th e date of service of the
agency’ s response. 5 C.F.R. § 1201.114 (e). The Acting Clerk of the Board advised the
appellant of this deadline. PFR File, Tab 2 at 1. However, the appellant filed her reply
more than 3 years after it was due . PFR File, Tab 4. She did not accompany her reply
with a motion showing good cause for this untimely filing, and we see no reason to
determine good cause based on the existing record. See 5 C.F.R. § 1201.114 (g).
Accordingly, we ha ve not c onsidered the appellant’ s reply in reaching our decision in
this matter.
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 que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must f ile a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washin gton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probo no for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no l ater than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) a nd 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative 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 pet ition 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 deci sion. 5 U.S.C.
§ 7703 (b)(1)(B).
5 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MITCHELL_RENEE_L_SF_1221_18_0199_W_1_FINAL_ORDER_2065548.pdf | 2023-09-05 | null | SF-1221 | NP |
2,738 | https://www.mspb.gov/decisions/nonprecedential/JOSEPH_L_GENISE_PH_0752_21_0216_I_1_FINAL_ORDER_2065714.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
L. GENISE JOSEPH,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
PH-0752 -21-0216 -I-1
DATE: September 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hartley D. Alley , Esquire, San Antonio, Texas, for the appellant.
Krista M. Irons , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency ha s 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 on due process grounds . Generally, we grant petitions such as these only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 req uired procedures or involved
an abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). Af ter
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 to VACATE the
administrative judge’s findings regarding the agency’s use of audio recordings in
its removal proceedings , we AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was employed as a Postmaster, EAS -18, with the agency in
Port Reading, New Jersey. Initial Appeal File (IAF), Tab 6 at 4 . Following an
incident in which th e appellant allegedly engaged in a physical and verbal
outburst wherein she threatened other employees and caused physical damage to
her office space, the agency removed her from Federal service on April 23, 2021 ,
based on the charge of unacceptable conduc t (two specifications). Id. at 7-10,
12-16. Thereafter, the appellant filed an appeal with the Board, challenging the
removal and raising several affirmative defenses. IAF, Tabs 1, 19, 24.
Specifically, she argued that the agency violated her due proce ss rights when the
deciding official considered her to be guilty of violating an agency policy
regarding workplace violence with which she was not charged and committed
harmful error by failing to conduct a pre -disciplinary interview with her . IAF,
3
Tab 1 at 6, Tab 24 at 7-14. She also argued that the agency improperly relied on
audio recordings of the incident made by her subordinates because such
recordings are in violation of New Jersey law . IAF, Tab 24 at 15-16.
Additionally, during the adjudication of the appeal, the appellant discovered that
the proposing official had provided the deciding official with an Action Request
Form without also providing it to the appellant prior to the deciding official’s
issuance of the decision notice. Id. at 5 -6, 12. Thus, the appellant argued that the
agency also violated her due process rights by engaging in ex parte
communications . Id.
¶3 After the appellant withdrew her request for a hearing, IAF, Tab 21, the
administrative judge issued an initial decisi on on the written record. IAF,
Tab 51, Initial Decision (ID). Regarding the appellant’s claim that the deciding
official inappropriately considered her guilty of violating a policy with which she
was not charged, the administrative judge found this argument witho ut merit
because the decision notice did not include a finding that the appellant violated a
policy , and the deciding official stated under the penalty of perjury that he did not
rely on the policy in making his decision. ID at 5. The administrative judg e also
found that the appellant failed to prove that the agency committed harmful error
by not conducting a pre -disciplinary interview. ID at 8-9. Additionally, the
administrative judge found that, although the audio recordings of the incident
appeared t o be in violation of New Jersey law, there was no evidence that the
agency officials involved in the removal action caused or encouraged the secret
taping. ID at 10. Regarding the appellant’s due process claim concerning the ex
parte communication, howev er, the administrative judge found that the agency
violated the appellant’s due process rights, and, accordingly, she reversed the
removal action. ID at 7 -8, 11.
¶4 The agency has filed a petition for review of the initial decision arguing that
the adminis trative judge erred in finding that it engaged in improper ex parte
communications resulting in a due process violation. Petition for Review (PFR)
4
File, Tab 1 at 12 -26. Specifically, the agency argues that the evidence establishes
that the deciding offic ial did not recall seeing the Action Request Form and did
not consider it, and, in any event, the information contained therein was
cumulative of other information properly provided to the appellant. Id. at 14, 16,
18-22. The appellant has filed a respon se to the agency’s petition for review, to
which the agency has replied. PFR File, Tabs 3 -4. The appellant has also filed a
cross petition for review arguing that the administrative judge erred in her
findings regarding the agency’s reliance on the impro per audio recording of the
underlying incident. PFR File, Tab 5. The agency has responded to the
appellant’s cross petition for review.2 PFR File, Tab 6.
DISCUSSION OF ARGUME NTS ON REVIEW
We discern no reason to disturb the administrative judge’s findin g that the agency
violated the appellant’s due process rights, and we deny the agency’s petition for
review.
¶5 As briefly set forth above, the appellant argue d below that the proposing
official provided the deciding official with an Action Request Form —a fo rm
apparently used by the agency’s human resources department to initiate
disciplinary proceedings —prior to the issuance of the removal notice, but that the
form was not similarly provide d to the appellant prior to her removal. IAF,
Tab 24 at 5 -6. In the form, the proposing official explain ed that the appellant
“has shown prior angry outbursts in the presence of her employees as noted by
their statements,” and that the appellant “should not be allowed back in the
workforce as she is a danger to [her]self or others and has exhibited workplace
violence placing her employees in a volatile and dangerous environment for
2 Neither party has challenged the administrative judge’s findings that the deciding
official did not conclude that the appellant violated a workplace policy with which she
was not charged and that t he appellant failed to prove that the agency committed
harmful error by not conducting a pre-disciplinary interview of the appellant. PFR File,
Tabs 1, 5. We have reviewed the record, and we discern no reason to disturb the
administrative judge’s finding s.
5
which there is zero tolerance.” IAF, Tab 24 at 31 -34. The appellant argued
below that this information was new ly introduced via an ex parte c ommunication
and that she was not given an opportunity to respond to it . IAF, Tab 47 at 8 -10.
¶6 It is well settled that an employee’s due process right to notice extends to
ex parte information provided to a deciding official if the information not
previously disclosed to the appellant introduces new and material information.3
See Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir. 2011); Stone
v. Federal De posit Insurance Corporation , 179 F.3d 1368 , 1376 -77 (Fed. Cir.
1999); Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 23. In deciding whether
new and material information has been introduced by means of ex parte
communications, the Board should consider the facts and circumstances of each
particular case. Stone , 179 F.3d at 1377. Among the factors that will be useful
for the Board to weigh are: (1) whether the ex parte communication merely
introduces cumulative information or new information; (2) whether the employee
knew of the error and had a chance to respond to it; and (3) whether the ex parte
communications were of the type likely to result in undue pressure upon the
deciding official to rule in a particular manner. Id.; Singh , 2022 MSPB 15 , ¶ 24.
¶7 In the initial decision, the administrative judge considered the deciding
official’s statements that he did not “recall” the Action Request Form and that he
did not consider it in ma king his decision to sustain the charge or uphold the
proposed penalty of removal. ID at 6 -7; IAF, Tab 34 at 10 -11. Nonetheless, she
found that such statements did not conflict with record evidence establishing that
the deciding official received the for m. ID at 7. She further found that the
3 The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of
the U.S. Supreme Court in Cleveland Board of Education v. Loudermill , 470 U.S. 53 2,
538-39, 546 -48 (1985), which held that a tenured public employee has a constitutionally
protected property interest in ongoing public employment and that an agency may not
deprive such an employee of his property interest without providing him with due
process of law, including the right to advance notice of the charges against him, an
explanation of the agency’s evidence, and an opportunity to respond.
6
form’s suggestion that the appellant is “a repeat, violent offender was a
significant departure from the rest of the evidence relied upon.” ID at 7 -8. After
also finding that the Action Request Form was of a type that affected the deciding
official’s decision to remove the appellant and that the deciding official’s
“conclusion that the appellant was dangerous” was based on the form , the
administrative judge concluded that the ex parte communication deprived the
appellant of due process. Id.
¶8 On review, the agency does not dispute that the deciding official received
the Action Request Form and that it pertains to the alleged misconduct. PFR File,
Tab 1 at 12. However, as briefly explained above, the agency challenges the
administrative judge’ s finding that the Action Request Form was not cumulative,
and that the deciding official considered the form . Id. at 14, 16, 18 -22.
¶9 Regarding the question of whether the Action Request Form contains
information that is merely cumulative, the agency arg ues that statements from the
appellant’s subordinates who witnessed the appellant’s alleged misconduct were
also provided to the deciding official and similarly suggest that the appellant’s
general workplace behavior created an ongoing hostile work environ ment.4
Although the agency is correct that the subordinates’ statements regarding the
appellant’s workplace conduct show that the appellant was difficult to work with,
the comments contained in those statements do not rise to the level of the
information contained in the Action Request Form sugg esting that she was an
ongoing, violent threat . IAF, Tab 6 at 25 -28. Specifically, one of the coworker’s
statements explains that the appellant’s “attitude is completely unpredictable” at
any moment due to her “mo od changes,” and that it makes for a “very [awkward]
and hostile environment to work in.” Id. at 28 . The second coworker explains
that the incident in question “isn’t the first time I’ve seen or heard [the appellant]
4 There is no dispute that these statements were also provided to the appellant prior to
her removal.
7
upset,” and that the work environment gives her “anxiety and stress.” Id. at 26 .
In contrast, as set forth above, the Action Request Form suggests that that the
appellant has a pattern of engaging in workplace violence and is generally a
danger to herself and others. IAF, Tab 24 at 31 -34. In other words, the general
tone of the appellant’s subordinates’ statements suggests that the appellant was
difficult to work with because of an unpredictable attitude or mood , whereas the
Action Request Form suggests that she is difficult to work with b ecause she is
regularly violent and poses a violent threat to those in the workplace with her .
Although both can reasonably be considered difficult environments in which to
work, they are, nonetheless, different in nature and in degree . Accordingly, we
discern no error in the administrative judge’s finding that the Action Request
Form represented a “significant departure” from other evidence in the record, and
thus, that the form contained new and material information. See Mathis v.
Department of State , 122 M.S.P.R. 507 , ¶ 11 (2015), (explaining that information
may be considered new and material if it constitutes a significant depar ture from
evidence already in the record). The agency’s arguments on review to the
contrary do not persuade us otherwise.
¶10 As noted, the agency also argues on review that there is no evidence that the
deciding official considered the Action Request Form in deciding to sustain the
charge and uphold the penalty of removal and that the administrative judge erred
in finding otherwise . PFR File, Tab 1 at 16, 18 -22. The agency again points to
the deciding official’s declaration, wherein he stated that he did “not recall” the
form, and that he “did not consider it in making [ his] decision ” to remove the
appellant. IAF, Tab 34 at 10-11. Like the administrative judge, we acknowledge
the deciding official’s statements. However, the record also contains statements
from the deciding official that he considered all the informatio n that was sent to
him prior to making his decision. IAF, Tab 27 at 25. Additionally, he stated in
the decision notice that he “based [his] decision solely on the evidence of record
to which [he has] given full consideration.” IAF, Tab 6 at 7. Thus, th e record
8
contains conflicting statements from the deciding official on this material point.
Given that the agency does not dispute that the deciding official received the form
and the deciding official’s own statement that he considered all the record
evidence and information provided to him, we find his assertion that he did not
consider the form to be internally inconsistent with other prior statements
included in the record and otherwise implausible. See Hillen v. Department of the
Army , 35 M.S.P.R. 453 , 458 (1987); Borninkhof v. Department of Justice ,
5 M.S.P.R. 77 , 87 (1981). As such, the agency’s arguments on review do not
provide a basis to disturb the initial decision.
¶11 Based on the foregoing, we agree with the administrative judge’s
conclusion that the Action Request Form introduced new and material
information regarding the appellant’s workplace behavior that was not merely
cumulative, that the appellant did not have a chance to respond to the information
contained in the form, and that the information was of the type likely to result in
undue pressure upon the deciding official. See Stone , 179 F.3d at 1377 ; Singh ,
2022 MSPB 15 , ¶ 24 . As such, we agree with the administrative judge that the
agency violated the appellant’s due process rights, and that such a finding
requires reversal of the appellant’s removal. ID at 6 -8. The appellant is entitled
to a new constitutionally correct removal proce dure. See Amar v. Department of
the Treasury , 89 M.S.P.R. 505 , ¶¶ 11-25 (2001). The agency’s petition for
review is denied.
We decline to consider the appellant’s arguments regarding the agency’s use of
the audio recordings, vacate the administrative judge’ s finding s in that regard,
and deny the appellant’s cross petition for revie w.
¶12 As briefly set forth above, the appellant has filed a cross petition for review
challenging the administrative judge’s findings regarding the agency’s use of the
audio recordings of the alleged incident that gave rise to the appellant’s removal.
PFR File, Tab 5 at 5 -14. By way of brief background, it appears that at least one
of the appellant’s subordinates recorded audio of the appellant’s conduct during
9
the incident that formed the basis of the appellant’s removal. IAF, Tab 29 at 17,
38. The appe llant asserted below that the recordings violate New Jersey law.
IAF, Tab 24 at 15 -16. Additionally, it is undisputed that the agency relied, in
part, on these recordings when it proposed her removal. IAF, Tab 37 at 5, 10. As
briefly set forth above, i n the initial decision, the administrative judge concluded
that it was “clear that the employees’ violated New Jersey law ” in making the
recordings , and that the recordings “constituted misconduct by those employees.”
ID at 10. However, the administrativ e judge observed that the appellant failed to
proffer arguments that the agency’s use of the recordings under the circumstances
similarly violated the law. Id. Ultimately, the administrative judge found that
there was no evidence that the agency “caused or encouraged the secret taping.”
Id. As such, she rejected the appellant’s affirmative defense. On review, the
appellant reiterates the argument that the recordings violated the law and internal
agency regulations. PFR File, Tab 5 at 8.
¶13 We decline t o consider the appellant’s argument here. Because we agree
with the administrative judge that the agency violated the appellant’s due process
rights, the removal decision is a nullity. See Sullivan v. Department of the Navy ,
720 F.2d 1266 , 1274 (Fed. Cir. 1983) (explaining that an improper ex parte
communication that rises to the level of a due process violation voids the entire
proceeding and renders the adverse action a nu llity); Blake v. Department of
Justice , 81 M.S.P.R. 394 , ¶ 35 (1999) (same). Because the removal action i s
void, we need not addre ss the appellant’s argument regarding the agency’s use of
the audio recordings . See 5 U.S.C. § 1201 (h) (prohibiting the Board from issuing
advisory opinions); Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶ 10 (2012)
(declining to consider an appellant’s arguments unrelated to a due process claim
when the Board disposes of an appeal by finding a due process violation ).
Accordingly, we deny the appellant’s cross petition for review. For these same
reasons, we vacate the administrative judge’s findings regarding the agency’s use
of the audio recordings.
10
ORDER
¶14 We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective April 23, 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.
¶15 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
Servic e regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all ne cessary 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 calend ar days after the date of this decision.
¶16 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).
¶17 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 wh y 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).
¶18 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
11
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 list s so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, y ou 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 , 120 1.202, 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 RIG HTS5
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 mo st appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
this final decision, you should immediately review th e law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main poss ible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of i ssuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S . Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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 aff ected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a ci vil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perr y v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action in volves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
14
with the EEOC no later than 30 calendar days after your representative 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. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion 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 ori ginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perma nently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
15
review within 60 days of the date of issuance of this decisi on. 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 addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of App eals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services prov ided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circui t Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 d amages) 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 Remed y 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 und ertaken 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 annu ity 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 t o 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 CEN TER CHECKLIST FOR BA CK 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 in formation 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 Diffe rential, 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 agen cy.
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, certi fication 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 com putation 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. | JOSEPH_L_GENISE_PH_0752_21_0216_I_1_FINAL_ORDER_2065714.pdf | 2023-09-05 | null | PH-0752 | NP |
2,739 | https://www.mspb.gov/decisions/nonprecedential/LEVY_TIFFANY_DC_0752_18_0038_I_1_REMAND_ORDER_2065761.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIFFANY LEVY,
Appellant,
v.
SECURITIES AND EXCHA NGE
COMMISSION,
Agency.
DOCKET NUMBER
DC-0752 -18-0038 -I-1
DATE: September 5, 2023
THIS ORDER IS NONPRECEDENTIAL1
Peter Broida , Esquire, Arlington, Virginia, for the appellant.
Daniel L. Garry , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has f iled a petition for review of the initial decision, which
dismissed h er appeal for lack of jurisdiction . 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND the case to the Washington Regi onal Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2 The essential undisputed facts are as follows . In February 2017, the
appellant and the agency entered into a settlement agreement resolving an equal
employment opportunity (EEO) complaint that the appellant had filed against the
agency, under which the agency agreed to increase the appellant’s salary,
effective January 1, 2017. Initial Appeal File (IAF), Tab 1 at 11 -14. On
October 3, 2017, the agency notified the appellant that it had incorrectly
processed her salary increase when it implemented the terms of the settlement
agreement. Id. at 9. As a r esult, the agency informed her that it had erroneously
overpaid her beyond what was provided for in the settlement agreement and that
it would be taking action to correct its “administrative error.” Id.
¶3 On October 16, 2017, the appellant filed a Board app eal alleging that she
had suffered a reduction in pay as a result of the agency’s October 3, 2017 letter.
IAF, Tab 1 at 6. She further alleged that the action violated the settlement
agreement and constituted retaliation for her EEO activity. Id. The a gency
moved to dismiss the appeal as premature and for lack of jurisdiction, asserting
that no action had yet been taken regarding the appellant’s salary. IAF, Tab 4.
The agency further noted that on October 25, 2017, it had issued the appellant a
Notice of Proposed Reduction in Salary and provided her with due process rights.
Id. at 5, 7 -10. The administrative judge issued an order indicating that the Board
may lack jurisdiction over the appeal as a reduction in pay and ordering the
appellant to file e vidence and argument demonstrating that the Board has
jurisdiction over the appeal. IAF, Tab 5. In response, the appellant argued that
the Board has jurisdiction over the appeal as a reduction in pay based on the
agency’s October 3, 2017 letter, which sh e contended amounted to a final
decision. IAF, Tab 6 at 4.
3
¶4 Thereafter, the administrative judge issued an order indicating that it
appeared that the Board may lack jurisdiction over the appeal to the extent the
appellant was seeking to enforce the terms o f the February 2017 settlement
agreement, which was reached outside of the Board’s proceedings and not entered
into the Board’s record for enforcement purposes. IAF, Tab 8. The jurisdictional
order afforded the parties an opportunity to address this issu e. Id. In response,
the appellant reiterated her argument that the Board has jur isdiction over her
appeal as a reduction in pay based on the agency’s October 3, 2017 letter. IAF,
Tab 9.
¶5 Without holding the appellant’s requested hearing, the administra tive judge
issued an initial decision, dismissing the appeal for lack of jurisdiction. IAF,
Tab 12, Initial Decision (ID). The administrative judge construed the appeal not
as a reduction in pay, but rather as an attempt to enforce the terms of the
settlement agreement. ID at 6 -7. Consequently, he found that the Board lacks
jurisdiction to consider such a claim because it l acks the authority to enforce
and/or interpret a settlement agreement that was not entered into the Board’s
record for enforcement purposes. ID at 6.
¶6 The appellant has filed a petition for review in which she disputes the
administrative judge’s finding th at her appeal amounted to an effort to enforce the
settlement agreement instead of an appealable reduction in pay. Petition for
Review (PFR) File, Tab 1. The agency has opposed the appellant’s petition, and
the appellant has filed a reply. PFR File, Tab s 4-5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by statute or regulation. Maddox v. Merit Systems Protection
Board , 759 F.2d 9 , 10 (Fed. Cir. 1985); see 5 U.S.C. §§ 7512 -7513 . The
appellant bears the burden of proving jurisdiction by preponderant evidenc e.
5 C.F.R. § 1201.56 (b)(2)(i)(A). If the appellant makes a nonfrivolous allegation
4
that the matter is within the Board’s jurisdiction, she is entitled to a hearing at
which she must pr ove jurisdiction. Garcia v. Department of Homeland Security ,
437 F.3d 1322 , 1344 (Fed. Cir. 2006). A nonfrivolous allegation is an assertion
that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). In
determining whether an appellant has made a nonfrivolous allegation of
jurisdiction entitling her to a heari ng, the administrative judge may consider the
agency's documentary submissions; however, to the extent that the agency's
evidence constitutes mere factual contradiction of an appellant's otherwise
adequate prima facie showing of jurisdiction, the administr ative judge may not
weigh evidence and resolve conflicting assertions of the parties, and the agency's
evidence may not be dispositive. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 ,
329 (1994).
¶8 Generally, the Board has jurisdiction to review actions involving reductions
in pay. 5 U.S.C. § 7512 (4); Arrington v. Department of the Navy , 117 M.S.P.R.
301, ¶ 8 (2012). If the a gency reduced the appellant's pay to correct what it
believed was a pay -setting error, then the agency bears the burden of showing that
it set her pay at a rate contrary to law or regulation. Kile v. Department of the Air
Force , 104 M.S.P.R. 49 , ¶ 17 (2006). An appellant should not be forced to prove
that the agency did not make a pay -setting error because the agency is in a much
better position to know why it originally set her pay as it did and what later led it
to conclude that it made an error. Id.
¶9 Here, the administrative judge did not construe the appeal as a reduction in
pay, despite the appellant’s allegation that the Board ha s jurisdiction over the
appeal as a reduction in pay based on the agency’s October 3, 2017 letter. IAF,
Tab 6 at 4. We therefore consider this jurisdictional issue now . The agency’ s
October 3, 2017 letter stated clearly that it would be taking action to correct its
error setting the appellant’s salary . IAF, Tab 1 at 9. Although the agency
subsequently issued a n October 25, 2017 Notice of Proposed Reduction in Salary ,
5
there is no evidence indicating that the agency rescind ed the October 3, 2017
letter or expunge d it from the appellant’s files .
¶10 Accordingly , we find that the a ppellant nonfrivolously alleged that the
agency reduced her pay based on the October 3, 2017 letter . To the extent the
agency reduced the appellant's pay to correct what it believ ed was a pay -setting
error , further development of the record is needed on this issue. The appellant is
therefore entitled to a jurisdictional hearing. Garcia , 437 F.3d at 1344. On
remand, the appellant must prove by preponderant evidence the matters th at she
has nonfrivolously alleged .
ORDER
¶11 For the reasons discussed abo ve, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEVY_TIFFANY_DC_0752_18_0038_I_1_REMAND_ORDER_2065761.pdf | 2023-09-05 | null | DC-0752 | NP |
2,740 | https://www.mspb.gov/decisions/nonprecedential/KENCY_ERICE_MAURICE_AT_3330_18_0193_I_1_FINAL_ORDER_2065084.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERICE MAURICE KENCY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-3330 -18-0193 -I-1
DATE: September 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Erice Maurice Kency , Grovetown, Georgia, pro se.
Michael E. Hokenson , Esquire, Fort Belvoir, Virginia, 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 Veterans Employment Opportunities Act of 1998 (VEOA) appeal as
untimely. 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 petitio ner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we 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
¶2 On November 21, 2017, the appellant filed a VEOA complaint with the
Department of Labor (DOL). Initial Ap peal File (IAF), Tab 1 at 4. On
December 6, 2017, DOL sent the appellant an email containing notice that it had
closed his complaint file without taking corrective action. Id. at 16 -17. The
notice informed the appellant that he had “ 15 calendar days fro m the date of
receipt of this letter ” to file an appeal with the Board. Id. at 16.
¶3 The appellant filed his B oard appeal on December 26, 2017 . IAF, Tab 1.
The administrative judge issued an order on timeliness, informing the appellant
that his appeal app eared to have been filed 5 days late, notifying him of the
standard for showing that either his appeal was timely or that the filing period
should be equitably tolled, and directing him to file evidence and argument on the
issue. IAF, Tab 4. The appellan t did not respond to the order. After the close of
the record, the administrative judge issued an initial decision dismissing the
appeal as untimely. IAF, Tab 7, Initial Decision.
¶4 The appellant has filed a petition for review, arguing that his appeal was
timely because the 15 -day deadline did not begin to run until December 11, 2017.
3
Petition for Review (PFR) File, Tab 1 at 2. He admit s to receiving DOL’s
original closeout notice on December 6, 2017, but assert s that DOL sent him a
new close out notice o n December 11, 2017 , to correct the case number. PFR
File, Tab 1 at 2, Tab 5 at 6. 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 , 5.
ANALYSIS
¶5 A VEOA appeal must be fil ed within 15 days after the complainant receives
written notification from DOL that the comp laint could not be resolved. 5 U.S.C.
§ 3330a (d)(1)(B). The 15 -day deadline is statutory and mandatory , with no
provision to waive the deadline for good cause shown. However, the deadline is
subject to equitable tolling. Alegre v. Department of the Navy , 118 M.S.P.R. 424,
¶ 17 (2012). A ccordingly, failure to meet this deadline will result in a dismissal
on timeliness grounds unless the appellant can establish a basis to equitably toll
the filing period . See Gingery v. Department of the Treasury , 110 M.S.P.R. 83 ,
¶¶ 22-25 (2008).
¶6 In this case, it is undisputed that the appellant originally received DOL’s
close out notice on December 6, 2017. IAF, Tab 1 at 16; PFR File, Tab 1 at 2.
Measured from that date, the appellant’s December 26, 2017 VEOA appeal was
untimely by 5 days. The appellant, however, argues that the filing period should
be measured from December 11, 2017, when he received a new copy of the
closeout notice, corrected to show the proper case number. PFR File, Tab 1 at 2,
Tab 5 at 6.
¶7 The appellant is raising this argument for the first time on petition for
review even though i t is based on eviden ce that was in his possession before the
close of the record below. The Board has long held that it will not consider an
argument raised for the first time on review absent a showing that it is based on
new and material evidence not previously available d espite the party ’s due
diligence. Washington v. Department of Veterans Affairs , 69 M.S.P.R. 86 , 88
4
(1995) ; Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980); see
5 C.F.R. § 1201.115 (d). The appellant in this case has not explained why he
failed to make this or any other argument in response to the administrative
judge’s timeliness order below . Thus, the appellant’s late -raised argument is
precluded by the Board’s regulations. Therefo re, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the 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 revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision bef ore you do, then you must file
6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling c ondition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can b e found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision be fore you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for w histleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation f or an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 th e link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KENCY_ERICE_MAURICE_AT_3330_18_0193_I_1_FINAL_ORDER_2065084.pdf | 2023-09-01 | null | AT-3330 | NP |
2,741 | https://www.mspb.gov/decisions/nonprecedential/GONZALEZ_JOEY_D_AT_0432_18_0700_I_1_FINAL_ORDER_2065140.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOEY D. GONZALEZ,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
AT-0432 -18-0700 -I-1
DATE: September 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leo Bueno , Miami, Florida, for the appellant.
Stephanie Ramjohn Moore , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for re view of the initial decisi on, which
reversed the appellant’s removal under 5 U.S.C. chapter 43 . The appellant has
filed several motions asserting that the agency failed to comply with the interim
relief order in the initial decision and requesting that th e Board dismiss 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
agency’s petition for review . Petition for Review (PFR) File, Tabs 3 , 6, 9, 11 .2
For the reasons set forth below, we GRANT the appellant ’s motions to dismiss
the agency’s petition, DISMISS the agency ’s petition for review , and ORDER the
agency to cancel the appellant ’s removal.3
¶2 The Board ’s regulations provide that, whe n an appellant was the prevailing
party in the initial decision, and the initial decision granted the appellant interim
relief under 5 U.S.C. § 7701 (b)(2)(A), an agency petition for review “must be
accompanied” by a certification that the agency has complied with the interim
2 The appellant has also filed a motion to lift a protective order that the administrative
judge issued precluding him from publishing the content of the agency officials’
depositions, PFR File, Tab 10, as well as a m otion for a protective order “to prevent the
[a]gency from continuing disseminating to third parties [the a]ppellant’s pers onnel
information or matters connected to the instant appeal,” PFR File, Tab 19. The agency
has opposed the latter motion only. PFR File, Tab 20. We grant the appellant’s
unopposed motion to lift the protective order pertaining to agency officials’ depositions
and vacate the protective order to the extent the record does not reflect that it meets the
requirements and purpose of the B oard’s regulation at 5 C.F.R. § 1201.55 (d); see Garst
v. Department of the Army , 60 M.S.P.R. 514 , 520 (1994) (stating that the purpose of the
Board’s authority to issue protective orders is to protect a witness or other individual
from harassment in order to aid the fact -finding process). We deny the appellant’s
motion for a pr otective order, which broadly seeks to prohibit the agency from
“disseminating any information in respect to the instant appeal to any third party.” PFR
File, Tab 19 at 8; see 5 C.F.R. § 1201.55 (d).
3 After the parties filed their petition for review submissions, the appellant filed a
motion to show cause, asking that the Board, among other things, order the agency to
explain why he was being reassigned during the interim relief period. PFR File,
Tab 14. The agency did not respond to the appellant’s motion. The appellant has filed
an addendum to the motion, and the agency has filed a response to the addendum. PFR
File, Tabs 15 -16. The appellant has also filed a Motion to Strike Agency ’s Untimely
Response to his Motion to Show Cause and Response to Appellant’s Addendum. PFR
File, Tab 17. We deny the appellant’s motion to show cause given the Board’s limited
authority to review undue disruption determinations made pursuant to an interi m relief
order. To the extent that the appellant contends in his motion that the agency’s recent
actions are additional examples of retaliation, PFR File, Tab 14 at 8, he may pursue
such claims with the Office of Special Counsel or the Equal Employment Op portunity
Commission, as appropriate. However, we grant the appellant’s motion to strike the
agency’s untimely response to his motion to show cause and its response to his
addendum to the motion.
3
relief order. 5 C. F.R. § 1201.116 (a). The agency ’s evidence must show, at a
minimum, that it has appointed the appellant to a position carrying the proper
title, grade, and rate of pay, and that the appointment was effective as of the date
of the initial decision. Lambert v. Department of the Navy , 85 M.S.P.R. 130 , ¶ 3
(2000). The Board ’s regulations 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).
¶3 We agree with the appellant that the agency did not include with its petition
a certification that it had provided the appellant interim relief effective as of the
date of the initial decision. Further, the agency’s November 7, 2019 pleading
certifying that it intended to provide the appellant interim relief was insufficient
to establish that it had provided interim relief. PFR File, Tab 5. The agency
appears to have improperly conflated the deadlines for implementing the full
ordered relief with its interim relief obligations in the event it filed a petition for
review of the initial decision. PFR File, Tab 5 at 5, Tab 13 at 5. Under the
circumstances, we find it appropriate to dismiss the agency’s petition for review
for fa ilure to comply with the administrative judge ’s interim -relief order. See
5 C.F.R. § 1201.116 (e).
¶4 This is the final decision of the Merit Systems Protection Board regarding
the dismis sal of the agency’s petition for review for failure to comply with the
order on interim relief. The initial decision remains the final decision of the
Board regarding the agency’s removal action.
ORDER
¶5 We ORDER the agency to cancel the removal and to retr oactively restore
the appellant effective August 10, 2018. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action n o
later than 20 days after the date of this decision.
4
¶6 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 d ays 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 o ut 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.
¶7 We further ORDE R 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).
¶8 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 car ried 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).
¶9 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 attach ed. 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.
5
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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 requir ements, 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 RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropri ate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law appli cable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given 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
7
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives t his decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. distr ict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you ma y request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with t he
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request fo r review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 follo wing
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/Form s/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 perio d 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 notifie d 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 earni ngs 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 late r 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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805 (g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation requir ed 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 an d 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 amou nt 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 emplo yee 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 include d 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. | GONZALEZ_JOEY_D_AT_0432_18_0700_I_1_FINAL_ORDER_2065140.pdf | 2023-09-01 | null | AT-0432 | NP |
2,742 | https://www.mspb.gov/decisions/nonprecedential/GIPSON_TAYLOR_ANTIONETTE_DC_3443_18_0577_I_1_FINAL_ORDER_2065141.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTIONETTE GIPSON TA YLOR,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-3443 -18-0577 -I-1
DATE: September 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Antoinette Gipson Taylor , College Park , Maryland, pro se .
David R. Scruggs , Esquire, Washington, D.C., 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 the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findin gs 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 in itial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner ’s due diligen ce, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we 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 decis ion. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant argues that the administrative judge abused her
discretion when she denied the appellant’s motion for a 60 -day stay of the
proceedings . Petition for Rev iew (P FR) File, Tab 1 at 4-5. An administrative
judge has broad discretion in controlling the proceedings before h er, including
ruling on motions, and we discern no abuse of discretion by the administrative
judge , especially whe n, as here, the appellant f ailed to raise an objection below .
Initial Appeal File (IAF), Tab 10 at 4 ; see Wofford v. Department of Justice ,
115 M.S.P.R. 367 , ¶ 10 (2010); Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579 ,
581 (1988); 5 C.F.R. § 1201.41 (b)(8) . While the appellant ’s now-former attorney
argues on review that he did not have sufficient tim e to adequately prepare for the
case, the appellant is responsible for any errors of her chosen representative. PFR
File, Tab 1 at 5; see, e.g., Gaetos v. Department of Veterans Affairs , 121 M.S.P.R.
201, ¶ 6 (2014).
¶3 The appellant reiterate s that the appeal is a mixed case over which the
Board has jurisdiction . PFR File, Tab 1 at 6-8. We agree with the administrative
3
judge that the appellant failed to establish a basis for Board jurisdiction.2 IAF,
Tab 11, Initial Decision (ID) at 1 -3. As the admi nistrative judge noted, an
agency ’s failure to reinvestigate a claim of sexual harassment is not one of the
adverse actions listed in 5 U.S.C. § 7512 . ID at 3. Thus, the appellant has not
shown that this is a mixed case over which the Board has jurisdiction . See
Perry v. Merit Systems Protection Board , 582 U.S. 420 , 431 (2017) (explaining
that a mixed case is one in which the appellant alleges that she suffered an
otherwise appealable action motivated by unlawful discrimination). Although the
appellant disputes the findings of the agency’s investigation i nto her claim of
sexual harassment , PFR File, Tab 1 at 7 -8, the Board lacks the authority to
adjudicate her claim regarding the merits of the agency’s action .
¶4 The appellant claims, for the first time on review , that she was demoted
after she reported incid ents of sexual harassment and that she considers the
agency’s failure to reinvestigate her claim of sexual harassment to be a
constitutional due process violation and harmf ul error. PFR File, Tab 4 at 5-7,
10. We d ecline to consider any arguments that the appellant submits for the first
time on review because she has not shown that they are based on new and
material evidence not previously available despite her due diligence . See
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) .
2 The appellant argues that her medical treatments related to the incidents at issue and
her problems with another former attorney support a finding of good cause for her
untimely fil ed appeal . PFR File, Tab 1 at 8. Because the Board lacks jurisdiction over
the appeal, it need not address the issue of the timeliness of the appellant ’s initial
appeal. See Fletcher v. Office of Personnel Management , 118 M.S.P.R. 632 , ¶ 10 n.2
(2012).
4
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1 ). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summa ry of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 ind icated 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 partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representati ve receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, nati onal 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 f or U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC 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 se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GIPSON_TAYLOR_ANTIONETTE_DC_3443_18_0577_I_1_FINAL_ORDER_2065141.pdf | 2023-09-01 | null | DC-3443 | NP |
2,743 | https://www.mspb.gov/decisions/nonprecedential/CROSS_REAVY_DC_0752_18_0077_I_1_FINAL_ORDER_2065155.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
REAVY CROSS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -18-0077 -I-1
DATE: September 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Reavy Cross , Leland, North Carolina, pro se.
Kim E. Dixon , Esquire, Scott Air Force Base , Illinois, 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 constructive demotion appeal for lack of jurisdiction . On petition
for review, the appellant makes the following arguments: the administrative
judge erroneously re lied on the final agency decision in the appellant’s equal
employment opportunity complaint in reaching her decision; he felt coerced 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
misled into accepting the lower -graded Mail Clerk position that was offered as a
reasonable accommodation; he should h ave been granted an exemption from
completing the Physical Ability Test (PAT) required for his previous position as a
Security Guard based on an arbitration decision from 2013 ; despite receiving
retained pay, his actual pay has been reduced due to the loss of overtime and
other premium pay; and he should have been granted his requested hearing .2
¶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 consisten t with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the re cord closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we 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 Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
¶3 For the reasons discussed below, we FORWARD the appellant’s claim of
discrimination based on his prior military service to the Board’s regional office
for docketing as an appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) .
2 The appellant also stated in his petition for review that he had “new and material
evidence and legal argument ” that was unavailable at the time the record closed below,
but he does not actually identify any new or material evidence or argument or elaborate
on what he means by this assertion. Petition for Review File, Tab 1 at 3 -4.
3
¶4 The appellant argues for the first time o n review that, starting in 2011 , the
agency began enforcing the PAT requirement for Security Guards, which
“threatened many of the disabled veterans . . . of losing their jobs, ” including the
appellant . Petition for Review (PFR) File, Tab 1 at 8. The appellant also
sugges ts that the agency began to enforce the PAT requirement at that time with
the consequence that “[a]ll of the veterans that the agency hired within a five -year
period may lose their jobs .” PFR File, Tab 4 at 5. Thus, it appears that the
appellant is alleging for the first time on review that the agency discriminated
against him on the basis of his prior military service when it enforced the
requirement that he take the PAT.
¶5 To establish jurisdiction over a USERRA discrimination claim under
38 U.S.C. § 4311 (a), an appellant must allege that: (1) he performed duty or has
an obligation to perform duty in a uniformed service of the United States; (2) the
agency denied him initial employment, reemployment, promotion, or any benefit
of employment; and (3) the denial was due to the performance of duty or
obligation to perform duty in the uni formed service. Gossage v. Department of
Labor , 118 M.S.P.R. 455 , ¶ 10 (2012) . Additionally, t he Board has held that
USERRA claims are to be broadly and liberally construed, are not subject to a
statute of limitations, and may be raised in the first inst ance in a petition for
review. See Henson v. U.S. Postal Service , 110 M.S.P.R. 624 , ¶ 10 n.6 (2009) ;
5 C.F.R. § 1208.12 . Therefore, we find that the appellant has nonfrivolously
alleged sufficient facts to support his claim that he was discriminated against on
the basis of his prior military service in violation of USERRA , and forward the
appellant’s USERRA claim to the regional office for docketing as a new ap peal.
4
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, 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/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess 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 ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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.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 Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 whistle blower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CROSS_REAVY_DC_0752_18_0077_I_1_FINAL_ORDER_2065155.pdf | 2023-09-01 | null | DC-0752 | NP |
2,744 | https://www.mspb.gov/decisions/nonprecedential/DAVIS_ROSETTA_BEATRICE_DC_0752_21_0127_I_1_FINAL_ORDER_2065206.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSETTA BEATRICE DAV IS,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DC-0752 -21-0127 -I-1
DATE: September 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James L. Fuchs , Esquire, Baltimore, Maryland, for the appellant.
Shirley Pointer , Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon , Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency removal action . For the reasons discussed below, we
GRANT the agency’s petition for review . We AFFIRM the initial decision’s
findings that the appellant failed to prove her affirmative defenses and MODIFY
the administrative judge’s an alysis of the affirmative defenses to 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
subsequent case law. We REVERSE the initial decision as to the removal action
and SUSTAIN the appellant’s removal for medical inability to perform her job
duties .
BACKGROUND
¶2 At the time of her removal, the appellant was employed as a GS-12 Program
and Management Analyst in the agency’s Farm Production and Conservation
(FPAC) Business Center.2 Initial Appeal File (IAF), Tab 1 at 13. Beginning in
April 2018 and continuing thro ugh the effective date of her removal on
November 22, 2019, the appellant failed to regularly report to duty. IAF, Tab 11
at 53 -58. During that period, the appellant submitted notes from her treating
physicians identifying her medical conditions and trea tment. Id. at 61 -76.
Specifically, in a letter dated May 17, 2018, a doctor requested that the appellant
be excused from work through May 2 0, 2018. Id. at 61. In a letter dated May 22,
2018, a medical note indicated that she had a medical evaluation th at day. Id.
at 62. By a letter dated June 14, 2018, she was treated by her psychiatrist for
anxiety and panic disorder due to a “severe anxiety attack as a result of on -going
harassment by management,” and was identified as “totally incapacitated” and
excused from work through July 14, 2018. Id. at 64 -65. In a letter dated July 12,
2018, her physician noted that she was undergoing treatment and additional
testing for a concussion she sustained on May 16, 2018, and that she was “on full
disability until further notice. ” Id. at 69.
¶3 On August 7, 2018, the appellant requested that her leave be designated as
protected under the Family and Medical Leave Act of 1993 (FMLA), citing the
July 14, 2018 letter. Id. at 78. Although the record is unclear, it appe ars that the
2 As the administrative judge observed, at some point during the events at issue in this
appeal the agency underwent a reorganization and the appellant’s position was
realigned from a GS -12 Program S pecialist in the Farm Service Agency (FSA) to a
GS-12 Program and Management Analyst in FPAC Business Center , Office of the Chief
Operating Officer, Homeland Security Division. IAF, Tab 31, Initial Decision (ID)
at 15-16; compare IAF, Tab 1 at 13, with IAF, Tab 11 at 28 -38.
3
appellant’s request was granted and she was on FMLA -protected leave from
August 7 through October 31, 2018. See id. at 18, 53. On October 23, 2018,
while on FML A, the appellant requested full -time telework to accommodate her
conditions and indicated that she would provide medical documentation to
support her request. Id. at 81. The appellant provided a letter dated October 24,
2018 , from her psychiatrist stating that she was being treated for chronic anxiety
disorder as result of harassment and retaliation while at work, and that she could
return to work “providing the conditions of her work environment are free of
harassment and hostility,” as well as a letter from her physician dated October 25,
2018, stating that she was still undergoing treatment for a concussion, and that he
could not provide a “confirmed date or type of recovery.” Id. at 72, 74, 80. The
agency subsequently engaged in the interactive process, and on December 4,
2018, off ered the appellant an accommodation of 1 telework day per week,
concluding that granting the appellant’s requested accommodation of full -time
telework would require removal of the essential functions of her position. Id.
at 83-88, 98 -100. On December 11, 2018, the appellant rejected the offered
reasonable accommodation. Id. at 91. The appellant and the agency’s reasonable
accommodations coordinator continued to engage in the interactive process over
the following 3 months , but the efforts ultimately pro ved fruitless . See id.
at 114-75. Throughout this time, the appellant continued to utilize extensive
leave. Id. at 53, 55, 57.
¶4 On May 3, 2019, the agency agreed to conduct a series of three job search es
for a position within the appellant’s medical re strictions to which she could be
reassigned , which it identified as the accommodation of “last resort .” Id.
at 177-78, 192 -202. After the third and final job search did not produce any
vacant positions for which the appellant qualified, on October 1, 2019, the agency
informed the appellant that it had fulfilled its legal obligations in its effort to
accommodate her medical restrict ions. IAF, Tab 22 at 150. By that time, the
4
appellant had accrued over 1,400 hours of leave without pay (LWOP). See IAF,
Tab 11 at 54.
¶5 By a letter dated October 11, 2019, the agency proposed to remove the
appellant from her position based on her inabi lity to report for duty and perform
the full scope of her job duties. Id. at 17 -21. The agency did not specifically
label the underlying charge in the proposal letter. Id. Nevertheless, the agency
stated in the proposal that “[s]ince, on or about, Apri l 23, 2018, you have been
unable to report for duty on a full -time regular basis due to a medical condition.”
Id. at 17. The proposal also listed some of the essential job duties of the
appellant’s position and noted that they were required to be complet ed in person
and could not be performed remotely . Id. The proposal further identified the
medical documentation the appellant had provided , recounted the agency’s efforts
to accommodate her conditions , stated her absence had “no foreseeable end,” and
noted that others had taken on the additional burden of fulfilling her duties . Id.
at 17-20. The proposal provided the appellant with the opportunity to respond
orally or in writing. Id. at 20.
¶6 After the appellant failed to respond to the proposal orally or in writing, see
id. at 23, on November 13, 2019, the deciding official issued a decision sustaining
the appellant’s removal from her position and from Federal service , id. at 23 -26.
The decision reiterated that the appellant was being removed from service “ based
on [her] inability to report to duty and to perform the full scope of duties of [her]
officially assigned position ,” noting that the provided medical documentation
indicated that she had been “unavailable for duty since April 23, 2018, for
compelling reasons beyond [her] control ,” and that the submitted medical
documentation stated that there was no foreseeable end in sight to her absences,
and her condition “preclude s [her] from performing the essential duties of [her]
position on a full -time regular basis. ” Id. at 23. The decision also stated that
removal promoted the efficiency of the service and that a lesser action would be
inadequate. Id. at 23 -24.
5
¶7 After exhausting the agency’s equal employment opportunity (EEO)
complaint process, the appellant timely filed the instant Board appeal . IAF,
Tab 1, Tab 5 at 15 . The appellant raised affirmative defenses of disability
discrimination based on disparate treatment and a failure to accommodate theory,
and reprisal for protecte d EEO activity. IAF, Tab 19 at 7-12, 17-24.
¶8 After the appellant withdrew her hearing request, IAF, Tab 6, the
administrative judge issued an initial decision based on the written record,
reversing the agency removal action, IAF, Tab 31, Initial Decision (ID) at 3, 19.
Specifically, the administrative judge concluded that the charge that supported the
appellant’s removal was essentially an excessive absences charg e, and that to
prove the charge the agency had to establish , among other things, that it warned
the appella nt that adverse action could be taken unless she returned to duty . ID
at 7 (citing Schultz v. United States Navy , 810 F.2d 11 33, 1137 (Fed Cir. 1987) ).
Based on her review of the record, the administrative judge concluded that there
was no evidence that the agency gave the appellant any such warning , and so the
agency failed to meet its burden of proving the charge. ID at 8-10. Because the
agency failed to meet its burden of proving the sole charge, she reversed the
removal action. ID at 1 9. She also concluded that the appellant failed to prove
any of her affirmative defenses. ID at 10-19.
¶9 The agency has filed a petition for review arguing that the administrative
judge erroneously reframed the agency’s medical inability charge as a charge of
excessive absences. Petition for Review (PFR) File, Tab 1 at 10 -14.
Alternatively, it argues that it met its burden of proving the excessive absences
charge. Id. at 14 -17. The agency has also certified its compliance with the
administrative judge’s interim relief order. Id. at 17, 27 -28. The appellant has
responded to the petition for review. PFR File, Tab 3. The appellant has also
filed a supplemental pleading alleging that the agency failed to comply with the
administrative judge’s interim relief order. PFR File, Tab 4. Finally, t he agency
filed a response to the appellant’s supplemental pleading reasserting that it has
6
comp lied with the administrative judge’s interim relief order, and the appellant
has replied to th e agency’s response. PFR File, Tabs 5 -6.
DISCUSSION OF ARGUME NTS ON REVIEW
The agency has complied with the administrative judge’s interim relief order.
¶10 When, a s here, the appellant is the prevailing party in an initial decision
that grants interim relief, any petition or cross petition for review must be
accompanied by a certification that the agency has complied with the interim
relief order either by providing the required interim relief or by satisfying the
requirements of 5 U.S.C. § 7701 (b)(2)(A)(ii) and (B). In an appeal from an
adverse action that was reversed, the agency’s evidence must show, at a
minimum, that it has appointed the appellant to a position carrying the
appropriate title, grade, and rate of pay, effective the date of the initial decision.
Moore v. U.S. Postal Service , 78 M.S.P.R. 80 , 83 (1998). If an agency files a
petition or cross petition for review and has not provided the interim relief
ordered, the appellant may request dismissal of the agency’s petiti on or cross
petition. 5 C.F.R. § 1201.116 (d). In such circumstances, the Board has
discretion to dismiss the agency’s petition pursuant to 5 C.F.R. § 1201.116 (e).
¶11 In the initial decision, the administrative judge ordered the agency to
provide interim relief to the appellan t in accordance with 5 U.S.C.
§ 7701 (b)(2)(A) in the event either party filed a petition for review. ID at 20.
The appellant argues that the agency failed to comply with the administrative
judge’s interim relief order because it failed to provide her with access to certain
agency equipment and systems and has refused to pay her back pay and
retroactive benefits, among other things . PFR File, Tab 3 at 15 -17, Tab 4 at 4 -10,
Tab 6 at 4 -17. Consequently, she asks the Board to dismiss the agency’s petition
for review . PFR File, Tab 6 at 8-13.
¶12 However, the relief the appellant is requesting is full relief, not interim
relief , which she is not entitled to until a final decision has been rendered in her
7
favor . See Johnston v. Department of the Treasury , 100 M.S.P.R. 78 , ¶ 25 (2005)
(noting that the purpose of interim relief is not to make the appellant whole at the
interim relief stage of the proceedings, but rather, to provide the limited relief of
5 U.S.C. § 7701 (b)(2)(A) during the pendenc y of the petition for review process );
Ginocchi v. Department of the Treasury , 53 M.S.P.R. 62 , 71 n.6 (1992) (same);
Hall v. Department of the Interior , 90 M.S.P.R. 32 , ¶ 9 (2001) (noting that a n
agency is not required to pay an award of back pay before a decision is final );
5 C.F.R. § 1201.116 (f) (stating that compliance with interim relief orders does
not require paying back pay for the period preceding the date of the initial
decision) . Here, th e agency has certified and provided evidence that it has
reinstated the appellant to her former position at her prior grade and pay level ,
effective July 16, 2021 , the date of the initial decision. PFR File, Tab 1 at 17,
27-28; Tab 5 at 8-11. The appellant has not challenged the agency’s certification
of her reinstatement . Accordingly , we find that the agency has provided the
interim relief required under 5 U.S.C. § 7701 (b)(2)(A) and we de ny the
appellant’s motion to dismiss the agency’s petition for review.3
The administrative judge applied an incorrect legal standard to the agency’s
charge .
¶13 On review, the agency argues that the administrative judge erred by
reframing the agency’s non -disciplinary charge of “ Inability to Report for Duty
on Full -Time Basis Due to a Medical Condition ,” as a disciplinary -based charge
3 To the extent the appellant is seeking to enforce the interim relief provisions of the
initial decision , we deny her request. See PFR File, Tab 3 at 16 (requesting the Board
to “expeditiously have the Agency enforce the [interim relief] Order, as written”). The
Board’s regulations do not allow for a petition for enforcement of an interim relief
order while an appeal is pending Board review ; such petitions apply only to final Board
decisions . Sanders v. Department of Homeland Sec urity , 122 M.S.P.R. 144 , ¶ 8 n.5 ,
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 ; 5 C.F.R. § 1201.182 (a)-(b). Upon
our issuance of this final Board order, the appellant may file a petition for enforcement
with the appropriate regional office if she still believes the agency has not provided full
interim relief. 5 C.F.R. § 1201.116 (g).
8
of “excessive absences.” PFR File, Tab 1 at 4 -5, 1 0-14. It argues that the
removal proposal and decision letters clearly ident ified that the appellant ’s
removal was based on her inability to work because of her medical condition, and
so the administrative judge erred by reframing the agency’s reason for removal as
being due to the appellant’s excessive absences. Id. at 10 -12. T he agency notes
that, unlike a n excessive absences charge , in order to prove a charge based on
medical inability, it need only prove that a nexus exists between the appellant’s
medical conditions and the observed deficiencies in her performance or conduct,
or a high possibility, given the nature of the work involved, that the appellant’s
condition may result in harm to herself or others, or more succinctly, that the
appellant’s medical condition prevent ed her from being able to safely and
efficiently perform the core duties of her position . Id. at 12 (citing Miller v.
Department of the Army , 121 M.S.P.R. 189 , ¶ 11 (2014) ; Clemens v. Department
of the Army , 120 M.S.P.R. 616 , ¶ 5 (2014) ). If the administrat ive judge had
correctly analyzed the agency’s charge under the standard for medical inability
instead of the standard for excessive absences, the agency argues, she would have
determined that the agency met its burden of proving the charge. Id. at 12 -14.
¶14 An agency is not required to affix a label to a charge. Otero v. U.S. Postal
Service , 73 M.S.P.R. 198 , 202 (1997). Instead, it is simply required to state the
reasons for a proposed adverse action in sufficient detail to allow the employee to
make an informed reply. Id. Additionally, a charge must be viewed in light of
the accompanying specifications a nd circumstances and should not be technically
construed. Id.
¶15 As a general rule, an agency may not take an adverse action based on an
employee’s use of approved leave. Savage v. Department of the Army ,
122 M.S.P.R. 612 , ¶ 30 (2015), overruled in part by Pridgen v. Office of
Management and Budget , 2022 MSPB 31 , ¶¶ 23 -25. However, an exception may
exist where the following criteria are met: (1) the employee was absent for
compelling reasons beyond her contr ol so that agency approval or disapproval of
9
leave was immaterial because she could not be on the job; (2) the absences
continued beyond a reasonable time, and the agency warned the employee that an
adverse action could be taken unless she became available for duty on a regular
full-time or part -time basis; and (3) the agency showed that the position needed to
be filled by an employee availa ble for duty on a regular, full -time or part -time
basis. Savage , 122 M.S.P.R. 612 , ¶ 30; Cook v. Department of the Army ,
18 M.S.P.R . 610 , 611 -12 (1984). This exception is applicable only under unusual
circumstances, i.e., where the employee is unable to return to duty because of the
continuing effects of illness or injury. Cook , 18 M.S.P.R. 610 , 611 -12.
¶16 Alternatively, a n agency may remove an employee if she is unable, because
of a medical condition, to perform the duties of her position. Savage
122 M.S.P.R. 612 , ¶ 34. To establish a charge of “medical inability to perform ”
based on a current medical condition, an agency mus t prove a nexus between the
employee’s medical condition and observed deficiencies in her performance or
conduct or a high probability, given the nature of the work involved, that her
condition may result in injury to herself or others. Fox v. Department of the
Army , 120 M.S.P.R. 529 , ¶ 25 (2014); see Haas v. Department of Homeland
Security , 2022 MSPB 36 , ¶ 15 (recognizing this standard and comparing it with
the differing standard that applies in the context of an employee’s removal from a
position with medical stand ards based solely on their medical history). The
Board has otherwise described this standard as requiring that the agency establish
that the appellant’s medical condition prevents her from being able to safely and
efficiently perform the core duties of her position. Haas , 2022 MSPB 36 , ¶¶ 15,
20. In determining whether an agency has met this burden, the Board will
consider whether a r easonable accommodation, short of reassignment, exists that
would enable the appellant to safely and efficiently perform her core duties. Id.,
¶ 25.
¶17 In the initial decision, the administrative judge determined that the agency’s
unlabeled charge should be treated as a charge of excessive absences and
10
analyzed it under this standard . ID at 7-10. She ultimately concluded that the
agency failed to meet its burden of proving the charge because it could not
demonstrate that it warned the appellant that an adverse action could be taken
unless she returned to duty . ID at 8-10 (citing Schultz , 810 F.2d at 1137) .
¶18 Based on our review of the record, we conclude that the agency intended to
charge the appellant with medical inability to perform. We acknowledge th at the
agency listed the dates she was absent and recited its conclusion as to why her
situation met what appear to be elements of an excessive absences charge. IAF,
Tab 11 at 17 -20. For example, the agency alleged that she was “unavailable for
duty for compelling reasons beyond her control,” others were performing her
work, and “it is imperative that [her] position be filled” by someone who could
perform the essential duties. Id. at 19 -20; see Savage , 122 M.S.P.R. 612 , ¶ 30 .
¶19 Nonetheless, we find that the administrative judge’s interpretation of the
proposal notice took an overly narrow view of the agency’s allegations , and that
the agency’s unlabeled narrative charge was instead a charge of medical inability
to perform. In a similar case, Edwards v. Department of Transportation ,
109 M.S.P.R. 579 , ¶¶ 13 -14 (2008) , disagreed with on other grounds by EEOC
Petition No. 0320080101 , 2009 WL 1904988 (June 23, 2009), concurred in and
adopted by 112 M.S.P.R. 82 (2009) , the Board disagreed with an administrative
judge’s interpretation of a charge labeled “unavailability for duty” as a charge of
excessive absences. The Board concluded that the a gency effectively charged the
appellant with being medically unable to perform her duties because its focus was
on her apparent inability to perform her regular duties. Id., ¶ 14. To that end, the
agency discussed the appellant’s medical restrictions in the proposed notice of
removal and removal decision, repeatedly requested medical documentation from
the appellant concerning her ability to work, assessed that documentation, and
twice refused to permit the appellant to work when she attempted to do so. Id.
Put another way, the agency did not take its action based on the appellant’ s past
absences, but rather due to her continuing inability to return to work . See Savage ,
11
122 M.S.P.R. 612 , ¶¶ 33 -34 (interpreting a charge of unavailability for duty as a
charge of medically inability to work on this basis ).
¶20 As in Edwards , the proposal and decision letter here were focused on the
fact that the appellant’s medical restrictions prevented her from performing her
duties. IAF, Tab 11 at 17 -26. The proposal letter stated that, based on the
medical documentation the appellant provided, she was “unable to complete the
essential functions of [ her] position” for medical reasons, recited the history and
nature of her medical restrictions , detailed the agency’s attempts to provide
reasonable accommodation, and explained why her requested accommodation of
teleworking was inconsistent with the in -person nature of her duties. IAF, Tab 11
at 17-20; see Fox , 120 M.S.P.R. 529 , ¶¶ 11 -13, 25 -30 (finding that an agency
proved its medical inability to perform charge whe n an employee’s absences had
a negative effect on her performance and the performance of her team); Ellshoff v.
Department of the Interior , 76 M.S.P.R. 54 , 68 (1997) (recognizing that a charge
of inability to perform job duties is equivalent to a charge of medical incapacity) ;
cf. Thome v. Department of Homeland Security , 122 M.S.P.R. 315 , ¶¶ 17-22
(2015) (concluding that the agency mis represented its charge as a
non-disciplinary “unavailability for duty ” charge when it actually removed the
appellant for a disciplinary -based charge of refusal to return to full duty, where
agency officials repeatedly testified that they removed her because she “refused”
to return to full duty).
¶21 The decision letter similarly reiterates that the agency’s action was based on
the appellant being unavailable for duty for compelling medical -based reasons
beyond her control, noting that it was evident from the documentation she
submitted that her “medical condition precludes [her] from performing t he
essential duties of [her] position on a full -time regular basis ,” and that based on
the medical documentation, there was no foreseeable end in sight to her absences.
IAF, Tab 11 at 23. Further, t he appellant did not provide a response to the
proposal, so there is no evidence in the record indicating that she interpreted the
12
agency’s charge as anything other than one based on her medical inability to
perform her job duties. See Thome , 122 M.S.P.R. 315 , ¶ 22 (examin ing an
employee’s reply to see whether she defended against a charge in determining
whether she received adequate notice of the charge ).
¶22 We also reject the appellant’s a rgument that the agency waived its right to
challenge the administrative judge’s reframing of its medical inability charge as a
charge of excessive absences because the agency failed to object to the reframing
of the charge before the record closed below. PFR File, Tab 3 at 9; see IAF,
Tab 15 at 2 (close of record summary identifying the agency’s charge as
“essentially an ‘Excessive Absence’ charge” and setting forth the applicable legal
standard for such a charge). The order summarizing the close of record
conference, in which the administrative judge identified the charge as one of
excessive absences, did not include any notice to the parties that they could object
to the contents of the order or how to do so . IAF, Tab 15. Following that order,
the agency argued in its close -of-record submission that it had proven that the
appellant was medically unable to perform her duties . IAF, Tab 20 at 8 -11. The
appellant had an opportunity to respond to this argument and, in the con text of
her claim of disability discrimination, disagreed with the agency’s assertion that
she was medically unable to work.4 E.g., IAF, Tab 25 at 5 -6.
¶23 Further, t he Board has , on previous occasions, reopened an appeal on its
own motion when an administrat ive judge erroneously interpreted the agency’s
charge. See Boltz v. Social Security Administration , 111 M.S.P.R. 568 , ¶ 11
(2009) (r eopening an appeal on the Board’s own motion to address an
administrative judge’s erroneous interpretation of the agency’s charges, even
though not raised by either party on review); Valenzuela v. Department of the
4 Neither in her close -of-record submission nor in her response to the agency’s close -of-
record submission did the appellant directly contest the agency’s charge, either as a
charge of medical inability to perform or excessive absences. IAF, Tabs 19, 25.
Instead, she argued that she had proven her affirmative defenses. IAF, Tab 19 at 4-12,
Tab 25 at 4 -13.
13
Army , 107 M.S.P.R. 549 , ¶ 11 (2007) (same) . Additionally, the Board is required
to adjudicate an adverse action solely on the grounds invoked by the agency and
may not s ubstitute what it considers to be a more appropriate charge. Gamboa v.
Department of the Air Force , 120 M.S.P.R. 594 , ¶ 7 (2014) . Because it is clear
based on our review of the record that the administrative judge incorrectly
reframed the agency’s charge, we find it appropriate to reassess the charge as a
charge of medical inability to perform , applying the correct applicable stand ard
for such a charge .
¶24 In sum, we find that the agency’s charge was one of medical inability to
perform and the administrative judge erred in interpreting the charge otherwise.
Accordingly , the correct applicable standard is as follows: whether the age ncy
prove d a nexus between the appellant’s medical condition and observed
deficiencies in her performance or conduct or a high probability, given the nature
of the work involved, that her condition may result in injury to herself or others.
Fox, 120 M.S.P.R. 529 , ¶ 25; Clemens , 120 M.S.P.R. 616 , ¶ 5 . Stated m ore
simply, the question is whether the appellant’s medical condition prevent ed her
from being able to safely and efficiently perform the core duties of her position.
Clemens , 120 M.S.P.R. 616 , ¶ 5; Fox, 120 M.S.P.R. 529 , ¶ 24. In determining
whether the agency has met this burden, we will consider whether a reasonable
accommodation exists , short of reassignment , that would enable the appellant to
safely and efficiently perform her core duties. See Fox, 120 M.S.P.R. 529 , ¶ 2 6
(noting that the core duties of a position are synonymous with its essential
functions , i.e., the fundamental job duties of the position, not including marginal
functions ); 29 C.F.R. § 1630.2 (n)(1).
The agency proved its medical inability charge.
¶25 Although we conclude that the administrative judge erred by applying the
incorrect standard to the agency’s charge, because the record is fully developed
and there was no hearing requiring demeanor -based credibility determinations,
the Board can determine whether the agency met its burden of proving the correct
14
charge without a remand. See Boltz , 111 M.S.P.R. 568 , ¶¶ 11 -20 (2009)
(concluding that the administrative judge incorrectly interpreted the agency’s
charge but declining to remand the appeal and instead re -analyzing the charge ,
while deferring to the administrative judge’s demeanor -based credibility
findings ); see also Haas , 2022 MSPB 36 , ¶ 20 (applying the proper standard to a
medical inability to perform charge, rather than remanding the appeal, when the
administrative judge applied an incorrect standard but the record was fully
developed on the relevant issues).
¶26 By the appellant’s own admission, at the time she was removed from her
position she was absent and “unable to report” to duty in person without the
accommodation of full -time telework , due to medical reasons . IAF, Tab 19 at 19.
The medical evidence the appellant submitted showed that she was “totally
incapacitated” and unable to work following a severe anxiety attack on or around
June 14, 2018, and in a July 12, 2018 letter, her physician stated that she was on
“full disability” until further notice based on a concussion she sustained on
May 16, 2018. IAF, Tab 11 at 64 -65, 69. On August 7, 2018, she began a period
of FMLA -protected leave and ultim ately exhausted all her paid leave and FMLA
leave and accrued 1,440 hours of LWOP and negative leave balance s while she
and the agency engage d in the interactive process to accommodate her condition s.
Id. at 53 -58, 78 . After the appellant rejected the ag ency’s offered accommodation
of part -time telework, see id. at 84-88, 90-92, 98 -100, the agency continued to
attempt to search for effective accommodations for her, id. at 114 -218. As of
March 27, 2019, the appellant’s psychiatrist was still unable to unconditionally
clear her to return to full duty. Id. at 76. The interactive process ultimately
concluded on October 1, 2019, with the agency unsuccessfully attempting to
accommodate the appellant through the accommodation of last resort, her
requested r eassignment. IAF, Tab 22 at 150 ; see Angel v. Office of Personnel
Management , 122 M.S.P.R. 424 , ¶ 9 (2015) (describing reassignmen t as t he
reasonable accommodation of last resort, which is required only after it has been
15
determined that there are no effective accommodati ons that would enable the
employee to perform the essential functions of her current position or that all
other rea sonable accommodations would impose an undue hardship ).
¶27 Based upon our review of the record, the appellant did not return to work or
provide updated medical records before her removal in November 2019 . See,
e.g., IAF, Tab 11 at 53 -76. At the time the int eractive process ended, the
appellant’s medical conditions had effectively kept her from working on a
full-time regular basis for nearly a year and a half , and the agency had exhausted
its obligations under the reasonable accommodation process . See id. at 17 , 102 .
Under such circumstances, we find that the agency met its burden of proving that
the appellant was medically unable to perform her job duties .
¶28 We also find no merit to the appellant ’s argument that the agency failed to
adequately attempt to accommodate her because she could perform her job duties
while on full -time telework despite the agency’s determination otherwise, and
because the agency initially sent an outdated version of her résumé as a part of
the reassignment job search . IAF, Tab 1 9 at 8 -11; Tab 25 at 7 -10, 12 . In
considering the appellant’s disability discrimination claim, the administrative
judge conducted a thorough analysis of the parties’ reasonable accommodation
interactive process and concluded that the agency met its obliga tions , and we
adopt her findings in this regard . ID at 10-14.
¶29 Among other things, the administrative judge determined that the agency
established that it was unable to accommodate the appellant’s request for
full-time telework because some of her job fu nctions required face -to-face
coordination and the use of agency tools and equipment that could not be
accessed remotely , which would have necessitated the agency to remove essential
functions of her position . ID at 11-12; see IAF, Tab 11 at 177, 179 -81, 220 -23.
The administrative judge also rejected the appellant’s argument that the agency
failed to conduct an adequate reassignment job search because it used an outdated
résumé, noting that although the agency initially used the appellant’s outdated
16
résumé for the first of its three job search es in error, it became aware of the error
and completed the two subsequent searches using the correct, updated résumé,
and still failed to find any positions to which the appellant could b e reassigned .
ID at 1 2-13; see IAF, Tab 11 at 192 -202, 212 -15; Tab 26 at 13 -14.
¶30 In conclusion, we find that the agency met its burden of proving its charge.
The agency proved that the appellant’s medical condition prevented her from
being able to safel y and efficiently perform the core duties of her position, with
or without accommodation.
The a dministrative judge properly determined that t he appellant failed to prove
her affirmative defenses.
¶31 The administrative judge found that the appellant failed to prove her claims
that the agency failed to accommodate her disability, subjected her to
status -based discrimination based on her disability, and retaliated against her for
her protected EEO activity. ID at 8 -17. The parties do not challenge these
findin gs on review , and we discern no basis to disturb the administrative judge’s
conclusion . However, in light of developments in the case law after she issued
her initial decision, we have modified her analysis.
Disability discrimination claims
¶32 The appellant alleged disability discrimination, but the administrative judge
denied her claim s. IAF, Tab 19 at 4 -11. Neither party challenges the
administrative judge’s finding on review. Nonetheless, we modify those findings
here in light of the Board’s decision in Haas , 2022 MSPB 36 . As clarified in
Haas , both a claim of disability discrimination based on an individual’s status as
disabled and a claim based on an agency’s failure to reasonably accommodate
that disability require that the individual be “qualified.” Id., ¶ 28. A qualified
individual with a disability is one who can “perform the essential functions of the
. . . position that such individual holds or desires” with or without reasonable
accommodation. 42 U.S.C. § 12111 (8); Haas , 2022 MSPB 36 , ¶ 28.
17
¶33 As noted above, the administrative judge determined that the appellant
could not perform the essential functions of her position , with or without
reasonable accommodation, and we decline to disturb this conclusion . ID at 9 -10.
At the time of her removal , the appellant could only work in her current position
if allowed to telework full -time. IAF, Tab 11 at 76, 173 -75. The administrative
judge determined that the majority of the appellant’s duties required the use of
equipment and tools that could not be replicated at home and that her duties also
necessitated face -to-face inte ractions. ID at 10; IAF, Tab 11 at 222.
¶34 The appellant argued below that the agency should have considered her for
an Analyst position within the agency’s Office of Budget and Programs Analysis .
IAF, Tab 19 at 8. The administrative judge found that the appellant did not
submit any evidence demonstrating that she would have been permitted to
telework full -time in this position, consistent with her existing medical
restrictions. ID at 11. She also found that the appellant failed to prove she was
qualified for th e position.5 Id.
¶35 The parties have not disputed the administrative judge’s determination that
the appellant failed to prove that she was qualified for her position or the Analyst
position she desired. ID at 9 -12. We discern no basis to disturb these find ings,
and affirm the administrative judge’s denial of the appellant ’s disability
5 The appellant argued below that, at some unspecified date prior to her November 2019
removal, the agency “set [her] up for failure” by reassigning her to the Program and
Management Analyst position from which she was removed. IAF, Tab 1 at 13 , Tab 11
at 17, 24, 28-38, Tab 19 at 21, 24, Tab 25 at 10 . The administrative judge determined
that the appellant failed to provide any relevant facts, such as when the reassignment
occurred, the agency’s claimed reasons for the reassignment, and how the appellant’s
duties changed. ID at 13 -14. Further, the administrative judge noted record evidence
suggesting that the rea ssignment may have been part of a reorganization that impacted
other FSA employees, not just the appellant, and in any event the appellant never
worked in the Program and Management Analyst position prior to her removal. ID
at 13-14; IAF, Tab 5 at 17 -18. Thus, the administrative judge found that the appellant
failed to prove that her medical condition or any request for accommodation was a
motivating factor in her reassignment. ID at 13 -14. The parties have not challenged
this finding on review, and we discern no basis to disturb it.
18
discrimination affirmative defenses on this basis . Haas , 2022 MSPB 36 ,
¶¶ 28-30. To the extent the administrative judge improperly characterized the
appellant as a “qualified” individual , we find that this error did not impact the
disposition of the appeal. Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984) (explaining that an adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis for reversal of an initial decision ).
EEO Reprisal
¶36 The appellant alleged that the agency retaliated against her based on her
request for reasonable accommodation and her prior EEO activity alleging
discrimination and harassment by agency officials. IAF, Tab 19 at 11 , 19, 23 ;
Tab 25 at 6 -12. The administrative judge denied the appellant’s EEO reprisal
affirmative defense claim, concluding that even though she engaged in protected
EEO activity when she complained of discrimination and sought reasonable
accommodation, she failed to prove that her reasonable accommodation request or
EEO activity was a motivating factor in the agency’s decision to remove her. ID
at 17-19.
¶37 To establish an affirmative defense of reprisal under 42 U.S.C. § 2000e -16,
i.e., Title VII discrimination and retaliation claims involving race, color, religion,
sex, or national origin, an appellant must prove by preponderant evidence that her
membership in a protected class was a motivating factor in the contested
personnel action, even if it was not the only reason. Savage , 122 M.S.P.R. 612 ,
¶¶ 41, 51. The Board will evaluate the evidence as a whole to determine i f an
appellant met her burden. Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647 , ¶¶ 28 -31 (2016) , clarified by Pridgen , 2022 MSPB 31 ,
¶¶ 23-24. If she does so, the appellant establishes that the agency violated
42 U.S.C. § 2000e -16 and committed a prohibited pers onnel practice under
5 U.S.C. § 2302 (b)(1). Savage , 122 M.S.P.R. 612 , ¶ 51. If the agency is able to
prove that it would have taken the same action in the absence of the
19
discriminatory or retaliatory motive, its violation will not require reversal of the
adverse action. Id.
¶38 However, after the initial decision was issued in this case, the Board
recognized that a more stringent standard applies in the context of reprisal claims
arising under the Americans with Disabilities Act Amendments Act of 2008 and
Rehabilitation Act, such that the appellant must prove that her prior EEO activity
was the “but -for” cause of the retaliation. Pridgen , 2022 MSPB 31 , ¶¶ 44-47.
The administrative judge did not have the benefit of Pridgen and instead relied on
Savage and its progeny in analyzing the appellant’s disab ility-based EEO reprisal
claim . ID at 17-19. We therefore recognize that the more stringent “but -for”
standard should have applied to the appellant’s EEO reprisal claim, rather than
the motivating factor standard. Nevertheless, because we agree with the
administrative judge’s finding that the appellant failed to meet the lesser
motivating factor standard, she necessarily failed to meet the more stringent
“but-for” causation standard applicable to her disability -based EEO reprisal
claim. Haas , 2022 MSPB 36 , ¶¶ 31 -32.
The appellant’s removal is appropriate.
¶39 Because the administrative judge found that the agency failed to prove i ts
charge, she did not make findings regarding a n exus between the appe llant’s
inability to perform her duties and the efficiency of the service or whether the
removal was reasonable . Therefore, we do so here.
¶40 Generally, removal for inability to perform the essential functions of a
position promotes the efficiency of the service, as required by 5 U.S.C. § 7513 (a).
Fox, 120 M.S.P.R. 529 , ¶ 40. Although a removal action may be rescinded on the
basis that such action would not promote the efficiency of the service when the
evidence clearly and unambiguously demonstrates that the appellant has
recovered before the administrative judge issues an initial decision in their Board
appeal , the appellant provided no such evidence here . Owens v. Department of
20
Homeland Security , 2023 MSPB 7 , ¶ 15; Wren v. Department of the Army ,
121 M.S.P.R. 28 , ¶ 6 (2014).
¶41 The evidence before the agency at the time of the appellant’s removal did
not reflect a foreseeable end to her unavailability for duty . Instead, the March 27,
2019 letter from the appellant’s psychiatrist —the last medical document ation the
appellant provided to the agency before her removal —did not clear her for an
unconditional return to duty, stating that she could only return to work in a
full-time telework capacity, and that a return to “the same work environment and
condition would likely im pede [her] progress.” IAF, Tab 11 at 76 , 173-76. As
previously noted, at th at point the appellant had been unable to report to duty on a
full-time regular basis since April 23, 2018, and all her medical status letters
from the prior year i ndicated that her conditions persisted and that there was no
end in sight to her inability to return to duty on a full -time regular basis. Id.
at 61-74. Despite this, the agency continued to work with the appellant to find a
suitable accommodation that w ould permit her to perform the essential functions
of her position for an additional 6 months before determining that her condition
could not be accommodated without removing the essential functions of her
position . See IAF, Tab 11 at 17, 102, 114 -223; Tab 22 at 128 -50. Accordingly,
we conclude that the appellant’s removal promoted the efficiency of the service .
See Clemens , 120 M.S.P.R. 616 , ¶ 5; Fox, 120 M.S.P.R. 529 , ¶ 24 , 40.
¶42 In summary , we conclude that the administrative judge applied an incorrect
standard to the agency’s charge. Under the correct legal standard, the agency met
its burden, the appellant failed to prove her affirmative defenses, and her removal
is appropriate. Accordingly, we grant the agency’s petition for review . We
affirm the initi al decision’s findings that the appellant failed to prove her
affirmative defenses and we modify the analysis, as set forth above. We
21
otherwise reverse the initial decision and sustain the appellant’s removal for
medical inability to perform her job dutie s.6
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
6 Because we conclude that the administrative judge incorrectly analyzed the agency
action as a charge of excessive absences instead of a charge of medical inability to
perform, we need not consider the agency’s alternative argument that it met its burden
of proving the excessive absences charge. See PFR File, Tab 1 at 14 -17. Consequently,
we also deny the agency’s request to submit the October 12, 2018 FMLA letter as
additional evidence on review. Id. at 16, 24 -25.
7 Sinc e the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
22
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
23
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
24
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 allega tions of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for t he Federal Circuit or any court
of appeals of competent jurisdiction.8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
8 The original s tatutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Revie w Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
25
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.ms pb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represen tation 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DAVIS_ROSETTA_BEATRICE_DC_0752_21_0127_I_1_FINAL_ORDER_2065206.pdf | 2023-09-01 | null | DC-0752 | NP |
2,745 | https://www.mspb.gov/decisions/nonprecedential/PETRUCELLI_MARJORIE_L_PH_0752_17_0076_I_1_FINAL_ORDER_2064662.pdf | THE UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARJORIE L. PETRUCEL LI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -17-0076 -I-1
DATE: August 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marjorie L. Petrucelli , Cranston, Rhode Island, pro se.
Kimberly Jacobs , Esquire, Newington, Connecticut, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings o f 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 t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 initia l decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner ’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we 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
¶2 On June 17, 2013, the agency granted the appellant ’s request for a
temporary reasonable accommodation beca use of her medical condition . Initial
Appeal File (IAF), Tab 9 at 48, 57. The accommodation consisted of a 4 -hour per
day work schedule with the remainin g 4 hours per day being coded as leave
without pay (LWOP) . Id.
¶3 By letter dated August 5, 2014, the agency advised the appellant that it
could not continue to grant her a 4 -hour per day work schedule given that there
appeared to be no foreseeable end to her condition. Id. at 57. Instead, in
August 2014, and again in May 2015, it offered the appellant an accommodation
of a permanent, part -time (4 hours per day) schedule in her current position. Id.
at 48, 60. The appellant did not respond to either offer . On August 26, 2015, she
filed an equal employment opportunity (EEO) co mplaint alleging disability
discrimination . IAF, Tab 5, Subtab 1 . Before the agency issued a decision on her
EEO complaint , she submitted an application for disability retirement with the
Office of Personnel Management and am ended her EEO complaint to al lege that
the agency ’s disability discrimination and retaliation for filing her earlier EEO
3
complaint coerced her retirement . Id., Subtabs 1 -3. After the agency issued the
final agency decision (FAD) on the all egation of forced retirement ,2 the appellant
filed this appeal alleging that her disability retirement was involuntary because
the agency failed to accommodate her disability . IAF , Tab 1, Tab 5, Subtab 1 .
¶4 The administrative judge , after issuing an ackn owledgement order that
provided appropriate notice of the jurisdictional questions at issue, IAF, Tab 2,
adjudicated the appeal under the standard to determine whether a disability
retirement is involuntary. He found that the agenc y acted within its discretion by
offer ing the appellant a reasonable and effective ac commodation of a permanent
part-time position , which she declined , apparently based on her belief that she
could only be accommodated by c ontinuin g her initial accommodation of a
combination of work and LWOP . IAF, Tab 12 , Initial Decision (ID) at 9-11. He
found that , under the circumstances of this case, the agency had no obligation to
provide the appellant with the specific accommodation that she wanted. ID at 12.
He concluded that the appellant failed to make a nonfrivolo us allegation of fact
that, if proven, would establish jurisdiction over her appeal, and he dismissed the
appeal without affording her the hearing that she requested. ID at 13 ; IAF, Tab 1
at 3.
¶5 In her petition for review, the appellant disagrees with the findings in the
initial decision, including the administrative judge’s failure to afford her a
hearing. Petition for Review (PFR) File, Tab 1. She states that the decision in
her EEO complaint directed her to appeal to the Board to receive her requested
hearing , and she asks which agency has jurisdiction over her appeal, the Equal
Employment Opportunity Commission ( EEOC) or the Board. Id. The agency has
responded in opposition to the petition. PFR File, Tab 3.
2 The only issue that the agency addressed in the FAD was the appellant ’s alleged
forced retirement, which the agency processed as a mixed -case complaint . The FAD
did not address the other issues that the appellant raised in her EEO complaint , and the
agency processed those matters separately. IAF, Tab 5, Subtab 1.
4
ANALYSIS
The appeal is properly before the Board .
¶6 The Civil Service Reform Act of 1978, Pub. L. No. 95 -454, 92 Stat. 1111 ,
provides for a complex interplay between the Board and the EEOC. Hess v. U.S.
Postal Service , 124 M.S.P.R. 40 , ¶ 11 (2016). An employee or applicant alleging
discrimination in conjunction with an otherwise appealable action initially may
elect either to file an EEO complaint with her agency or proceed d irectly to the
Board. Id.; Lott v. Department of the Army , 82 M.S.P .R. 666 , ¶ 6 (1999);
5 C.F.R. § 1201.154 (a); 29 C.F.R. § 1614.302 (b); see 5 U.S. C. §§ 7701 (a),
7702(a)(1) -(2). However, regardless of the avenue chosen, the complaining
individual ’s only right to an evidentiary hearing in such mixed cases is before the
Board, not the EEOC. Hess , 124 M.S.P.R. 40, ¶ 11; Rosso v. Department of
Homeland Security , 113 M.S.P.R. 271 , ¶ 11 (2010); see 5 U.S.C. §§ 7701 (a)(1),
7702(a); 29 C.F.R. § 1614.302 (d)(3) (providing that an agency issui ng a FAD on
a mixed -case complaint “shall advise the complainant of the right to appeal the
matter to the [Board] (not EEOC) ”).
¶7 An employee -initiated action such as a retirement is not appealable to the
Board unless the appellant proves that it was involu ntary. Gutierrez v. U.S.
Postal Service , 90 M.S.P.R. 604, ¶ 7 (2002); see Aldridge v. Department of
Agriculture , 111 M.S.P.R. 670, ¶ 7 (2009) . An involuntary retirement is
tantamount to a removal and, accordingly, is appealable to the Board as an
adverse action under chapter 75 . Aldridge , 111 M.S.P.R. 670, ¶ 7; see Garcia v.
Department of Homeland Security , 437 F.3d 1322 , 1328 (Fed. Cir. 2006) (en
banc); see also 5 U.S.C. §§ 7512 (1), 7513(d) , 7701 . Thus, an involuntary
retirement is an otherwise appealable action. When an appellant elects to file an
EEO complaint alleging an involuntary retirement , the appellant ’s path to proving
that her retirement was involuntary , and thus an otherwise appealable action
entitling her to hearing on a mixed -case complaint , is before the Board . See
Ragland v. Department of the Army , 84 M.S.P.R. 58, ¶ 2 (1999).
5
¶8 Once a n involuntary retirement appeal is before the Board, t he dis positive
issue is jurisdictional. See Aldridge , 111 M.S.P.R. 670 , ¶ 7 (observing that the
jurisdictional issue and the merits of an alleged involuntary resignation or
retirement are inextricably intertwined). When, as here, the appellant has
requested a hearing, the threshold question is whether she has made a
nonfrivolous allegation of jurisdiction en titling her to a hearing at which she
would have the opportunity to prove jurisdiction. See Garcia , 437 F.3d at 1344
(finding that once an appellant makes nonfrivolous allegations of jurisdiction
over a constructive adverse action, she is entitled to a hearing at which she then
must prove that the Board has jurisdiction over her appeal); Cruz v. Department
of the Navy , 934 F.2d 1240 , 1245 (Fed. Cir. 1991) (en banc ) (finding that an
alleged involuntary action is not a “mixed ” case involving a discrimination claim
until the appellant proves that a constructive rem oval or suspension took place).
The appellant failed to make a nonfrivolous allegation of jurisdiction .
¶9 The Board ’s jurisdiction over an involuntary disability retirement claim is
subject to greater limitations than is the case involving an ordinary alleged
involuntary r etirement. Timinski v. Department of Agriculture , 88 M.S.P.R. 559,
¶ 9 (2001) . Disability retirement cases differ from typical retirement cases
because an appellant who meets the statutory requirements for disability
retirement has “no true choice between working (with or without accommodation)
and not working, and disability reti rement cannot be considered as a removal
within the meaning of 5 U.S.C. § 7512 (1).” Id. (quoting Nordhoff v. Department
of the Navy , 78 M.S.P.R. 88 , 91 (1998), aff’d, 185 F.3d 886 (Fed. Cir. 1999)
(Table) ). Thus, the standard for determining whether a disability retirement was
involuntary, and therefore tantamount to a remov al, focuses on the a vailability of
an accommodation. Timinski , 88 M.S.P.R. 559, ¶ 9; Nordhoff , 78 M.S.P.R. at 91.
¶10 To invoke the Board ’s jurisdiction over an involunta ry disability retirement
appeal , the appellant must prove that: (1) she indicated to the agency that she
wished t o continue working but that her medical limitations required a
6
modification of her work conditions or d uties, i.e., accommodation; (2) there was
a reasonable accommodation available during the period between the date on
which she indicated to the agency that she had medical limitations but desired to
continue working and the date that she was separated that would have allowed her
to continue working; and (3) the agency unjustifiably failed to offer that
accommodation. Pariseau v. Department of the Air Force , 113 M.S.P.R. 370 ,
¶ 13 (2010 ); see Okleson v. U.S. Postal Service , 90 M.S.P.R. 415 , ¶ 8 (2001);
Nordhoff , 78 M.S.P.R. at 91. Once the appellant has raised a nonfrivolous
allegation that such an accommodation existed but was not provided, she is
entitled to a jurisdictional hearing. Deines v. Department of Energy , 98 M.S.P.R.
389, ¶ 13 (2005) .
¶11 We construe the appellant ’s allegation that the administrative judge erred in
failing to afford her the hearing that she requested as an assertion that the
administrative judge erred by failing to find that she made a nonfrivolous
allegation of jurisdiction. See Melnick v. Department of Housing and Urban
Development , 42 M.S.P.R. 93, 97 (1989) ( stating that pro se pleadings are to be
liberally construed), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). Nonfrivolous
allegations of Board jurisdiction are allegations of fact which, if proven, could
establish a prima facie case that the Board has jurisdiction over the matter at
issue. Bruhn v. Department of Agriculture , 124 M.S.P.R. 1, ¶ 10 (2016). In
determining whether the appellant has made a nonfrivolous allegation of
jurisdiction entitling her to a hearing, the administrative judge may consider the
agency ’s documentary submissions; however, to the ex tent that the agency ’s
evidence constitutes mere factual contradiction of the appellant ’s otherwise
adequate prima facie showing of jurisdiction, the administrative judge may not
weigh evidence and resolve conflicting assertions of the parties , and the age ncy’s
evidence may not be dispositive. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 ,
329 (1994).
7
¶12 Here, there is no dispute that the appe llant indicated to the agency that she
wished to continue working but that her medical limitations required
accommodation . IAF, Tab 5, Subtab 1. S he identified an accommodation that
would have allowed her to continue working, a continuation of the temporary
accommodation that the agency had provided to her from June 2013 to
August 2014, a 4-hour per day work schedule with the remaining 4 hour s per d ay
being coded as LWOP . At issue is whether , by asserting that she wished to
continue in the previous temporary accommodation, the appellant made a
nonfrivolous allegation that the agency unjustifiably failed to offer t hat
accommodation, thereby rendering her retirement involuntary.
¶13 The agency ended its temporary accommodation of the appellant ’s disability
because she encumb ered a full -time position, and medical evidence she provided
showed no foreseeable end to her medical condition . IAF, Tab 9 at 48. The
agency offered the appellant permanent accommodation of a part -time position,
4 hour s per work day . Id. The appellant submitted no evidence to show that
there was a foreseeable end to her medical condition. She merely reiterated her
preference for continu ing the temporary accommodation.3 IAF, Tab 5,
Subtabs 4-5.
¶14 An appellant is not entitled to the accommodation of her choice when the
agency acts within its discretion to offer reasonable and effective
accommodation. See Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 21
(2014). Here, the appellant failed to make a nonfrivolous allegation that the
accommodation o ffered by the agency was unreasonable. Thus, she failed to
3 The appellant ’s situation is complicated by the fact that she also sought Office of
Workers ’ Compensation Programs (OWCP) b enef its based on a December 14, 2015
incident when a veteran threatened and lunged at her while she was working. IAF,
Tab 5, Subtab 4. The appellant appears to have sought LWOP relative to her OWCP
benefits claim. Id., Subtab 11. Whether the appellant coul d receive LWOP regarding
her OWCP claim is unrelated to whether she made a nonfrivolous allegation that the
agency unjustifiably fa iled to offer her continued LWOP as an accommodation.
8
make a nonfrivolous allegation that her retirement was involuntary . See
Pariseau , 113 M.S.P.R. 370, ¶ 13. We therefore find that the administrative
judge properly denied the appellant ’s request for a jurisdictional hearing and
dismissed the appeal for lack of jurisdiction.4
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for you r situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to yo ur claims and carefully follow all
filing 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 Board has held that other theories of involuntariness in an all eged involuntary
disability retirement appeal cannot lead to a different conclusion because the essence of
claims of involuntariness based on coercion, duress, or intolerable working conditions
is that the employee had a choice between retiring or continui ng to work but was forced
to choose retirement by improper acts of the agency. Rule v. Department of Veterans
Affairs , 85 M.S.P.R. 388, ¶ 13 (2000) . An employee who is unable to work because of
a medical condition that cannot be accommodated simply does not have such a choice.
Id. To the extent that the administrative judge ’s consideration of other theories of
involuntariness in th is case was error, it did not harm the appellant ’s substantive rights
and provides no basis to reverse the initial decision. Panter v. Department of the Air
Force , 22 M.S.P.R. 281 , 282 (1984) ( explaining that a n adjudicatory error that is not
prejudicial to a party ’s substantive rights provides no basis for reversal of an initial
decision).
5 Since the issuance of the initial decision in th is matter, the Board may have updated
the notice 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
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a ge neral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided b y any attorney nor warrants that
any attorney will accept representation in a given 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
10
were affected by an action t hat is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an a ppropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receive s this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origi n, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess 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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l 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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PETRUCELLI_MARJORIE_L_PH_0752_17_0076_I_1_FINAL_ORDER_2064662.pdf | 2023-08-31 | null | PH-0752 | NP |
2,746 | https://www.mspb.gov/decisions/nonprecedential/THOME_SOCORRO_DA_0752_12_0339_X_1_FINAL_ORDER_2064822.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SOCORRO THOME,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-0752 -12-0339 -X-1
DATE: August 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin L. Owen , Esquire , and Christopher H. Bonk , Esquire, Silver Spring,
Maryland, for the appellant.
Mark W. Hannig , Esquire, El Paso, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 This case is before the Board pursuant to a compliance initial decision of
the administrative judge , finding the agency in partial noncompliance with a
settlement agreement. Thome v. Dep artment of Homeland Sec urity , MSPB
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
Docket No. DA-0752 -12-0339 -C-1, Compliance File (CF), Tab 13, Compliance
Initial Decision (CID); Thome v. Dep artment of Homeland Sec urity , MSPB
Docket No. DA -0752 -12-0339 -I-1, Initial Appeal File (IAF) , Tab 107, Initial
Decision (ID) . For the reasons discussed below, we find the agency in
compliance and DISMISS the petition fo r enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 On April 9, 2012, the appellant filed an appeal of her removal. IAF, Tab 1.
On March 22, 2013 , the administrative judge issued an initial decision reversing
the removal but finding that the appellant had failed to establish her
discrimination and reprisal affirmative defenses . ID at 20 -27. The agency and
the appellant filed petitions for review, and the agency additionally filed a cross
petition for review . Thome v. Dep artment of Homeland Sec urity , MSPB Docket
No. DA -0752 -12-0339 -I-1, Petition for Review (PFR) File, Tabs 7 , 8, 13. On
February 27, 2015, the Board issued an Opinion and Order directing the agency to
cancel the removal and retroactively restore the appellant effec tive April 3, 2012 ,
and pay the appellant the correct amount of back pay, interest on back pay , and
other benefits . Thome v. Dep artment of Homeland Se curity , 122 M.S.P.R. 315 ,
¶¶ 31-33 (2015) ; PFR File, Tab 29, Opinion and Order . The Board vacated the
administrative judge’s determination that the appellant failed to prove her sex
discrimination affirmative defense and remanded th at claim for further
adjudication. Id.
¶3 On remand, the parties reached a settlement agreement, which “adopted” the
Board’s February 27, 2015 Opinion and Order and the relief granted therein .
Thome v. Department of Homeland Sec urity , MSPB Docket No. DA -0752 -12-
0339 -B-1, Remand File (RF), Tab 27. On December 31, 2015, the administrative
judge issued an initial decision entering the settlement agreement into the record
for enforcement purposes and dismissing the remand appeal . RF, Tab 28 ,
Remand Initial Decis ion.
3
¶4 On January 27, 2016, the appellant filed a petition for enforcement . CF,
Tab 1. On November 23, 2016, the administrative judg e issued a compliance
initial decision finding that the agency was not in compliance with the Board’s
February 27, 2015 Opinion and Order, which had been incorporated into the
parties’ December 2015 settlement agreement . The administrative judge ordered
the agency to:
(1) submit evidence to show that the appellant’s Official Personnel
Record has been corrected with regard to within -grade increases;
(2) submit evidence to show that the appellant has received the
proper amount of back pay, interest on back pay, and other benefits
under the Back Pay Act (such evidence must clearly set forth the
amounts of overtime and premium pay due and how those amounts
were calculated, including evidence that the calculations accounted
for within -grade increases); and (3) submit to the Board the name(s)
and address(es) of the person(s) responsible for the agency’s
decision even if the agency believes it is in full compliance.
CID at 9.2
¶5 In response to the compliance initial decision , on December 22, 2016, the
agency provided documents demonstrating that it had corrected the appellant’s
Standard Form 50s to reflect step increases; corrected her regular back pay
incorporating the step increases; corrected her overtime back pay by analyzing
the overtime that the appellant would have received but for the removal using two
time periods prior to her removal (July 19, 2009 , to March 3, 2010; and July 18,
2010 , to March 11, 2011), averaging the overtime hours worked during those two
time periods , and applying that amount to calculate appropriate overtime during
2 The compliance initial decision informed the agency that, if it decided to take the
actions required by the decision, it must submit to the Clerk of the Board, within the
time limit for filing a petition for review under 5 C.F.R. § 1201.114 (e), a statement that
it has taken the actions identified in the compliance initial decision, along with
evidence establishing that it has taken those actions. CID at 9-10; see 5 C.F.R.
§ 1201.183 (a)(6)(i). The compliance initial decision also informed the parties that they
could file a petition for review if they disagreed with the compliance initial decision.
CID at 11; see 5 C.F.R. §§ 1201.114 (e), 1201.183(a)(6)(ii). Neither party petitioned for
review of the compliance initial decision.
4
the back pay period ; and provided the names of officials responsible for the
corrections. Thome v. Dep artment of Homeland Sec urity , MSPB Docket No.
DA-0752 -12-0339 -X-1, Compliance Referral File (CRF), Tab 1 at 4 -5.3
Following the agency’s submission, the Office of the Clerk of the Board issued an
Acknowledgement Order notifying the parties that a new docket number had been
assigned (reflecting the referral of the matter to the Board for a final compliance
determination) and notifying the appellant of her right to respond to the agency’s
submission within 20 days. CRF, Tab 2 at 1 -2.
¶6 On January 11, 2017, the appellant challenged the agency’s method of
computing the overtime back pay amount, stating that the agency incorrectly
included in its evaluation a period of five months during which the appellant was
pregnant with her son, and as a result, began light duty. CRF, Tab 3 at 5 . The
appellant also asserted that the agency failed to provide information regarding
interest payments on the appellant’s back pay, and did not prov ide an accounting
of its payment s to the appellant. Id. at 5-6.
¶7 On August 16, 2017, the Board issued an order directing the agency to
submit evidence and briefing regarding the time periods used to calculate the
appellant’s overtime back pay; detailed explanations of both the payments made
to the appellant’s Thrift Savings Plan (TSP) account and the interest included
with the back pay payment; evidence of all back pay payments made to the
appellant; and an explanation of what amount of back pay was still owed to the
appellant, along with a statement regarding the reasons for not yet paying this
amount to the appellant. CRF, Tab 4 at 4. In a response on October 16, 2017, the
agency summarized payments already made to the appellant , including a base
back pay amount of $71, 955.84 ; overtime pay of $3,219.75; interest on the back
pay of $5,784.49; apparently separate payments for retroactive within -grade
3 The exact amount s of the appellant’s payments were still being processed by the
Department of Agriculture at the time of the agency’s submission on December 22,
2016. CRF, Tab 1 at 5.
5
increases (WIGIs) totaling $16,886.72; and TSP contributions totaling
$14,874.41 , and stated: “The only type of payment the Agency believes it could
still owe the Appellant would be back pay for overtime, and interest.” CRF,
Tab 7 at 4, 7.
¶8 On May 31, 2022, the Board issued an order directing the agency to address
whether it had :
(1) paid the appellant, or will pay the appellant by a date certain, all
back pay, with interest, owed; (2) ensured that any necessary
adjustments to the appellant’s TSP contributions have been, or will
be, made; and (3) computed the overtime and pay differentials in the
appellan t’s back pay award in accordance with the [] requirements
for computing this type of back pay.
CRF, Tab 8 at 5.
ANALYSIS
¶9 A settlement agreement is a contract and, as such, will be enforced in
accordance with contract law. Burke v. Department of Veterans Affairs ,
121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement
that has been entered into the record in the s ame manner as a final Board decision
or order. Id. In a proceeding to enforce a settlement agreement, the party
alleging noncompliance with the agreement has the burden of proof.
Modrowski v. Dep artment of Veterans Affairs , 97 M.S.P.R. 224 , ¶ 7 (2004).
However, when an appellant makes specific allegations of noncompliance, it is
the agency’s burden to produce relevant evidence wi thin its control showing
compliance with its agreement or showing good cause for its failure to comply.
Id.
¶10 Two outstanding issues remain in this compliance matter : the amount of the
appellant’s back pay and interest, including overtime back pay; and the
appellant’s TSP contributions. On August 31, 2022, i n response to the Board’s
May 31, 2022 Order, the agency submitted argument and evidence assert ing that
it had initiated a process to pay the appellant an additional $32,967 in gross pay
6
for overtim e, resulting in the appellant “earning the highest amount for the
relevant year during which she was removed when compared to her other relevant
years of employment . . . .” CRF, Tab 14 at 4. The agency stated that to calculate
this amount, it had averaged the amount of overtime which the appellant had
earned in the year before her removal and the year after she was reinstated , which
resulted in an amount of $32,967. Id. at 4-5. The agency further asserted that it
would withhold 6.86% of the appellant’s earnings for each of the 25 pay periods
during her removal for her TSP account , and TSP managers would determine the
historical gains and losses of the appellant’s funds during her removal . Id. at 6.
¶11 On September 20, 2022, the appellant responded to the agency’s August 31,
2022 submission , noting that the agency ’s total in overtime back pay did not
include a calculation for interest on the back pay , contrary to the Board’s order.
CRF, Tab 15 at 4-5. The appellant also asserted that in the course of her
employment with the agency she had consistently withheld 15% of her gross pay
for her TSP contributions , and thus , the agency’s calculations of the appellant’s
TSP withholdings, which assumed that the appellant withheld 6.86% of her pay,
were incorrect. Id. at 6-7, 9. The appellant requested sanctions based on the
agency’s noncompliance. Id. at 8.
¶12 On September 30, 2022, the agency replied to the appellant’s response,
stating that it had deposited $14,905.86 of interest into the appellant’s bank
account, which was calculated in accordance with the Office of Personnel
Management’s calculation methods. CRF, Tab 16 at 4.4 The agency also asserted
that it would process the desired 15% withho lding from the appellant’s pay for
her TSP account and adjust her TSP account accordingly. Id. at 5.
¶13 On November 30, 202 2, the agency submitted an update regarding the
appellant’s TSP adjustments, stating that the agency had communicated with the
4 The agency referred to an attached document to demonstrate its compu tations , but the
attachment appears to have been inadvertently omitted from the agency’s submissions.
CRF, Tab 16 at 4.
7
appellan t regarding her preferences about the withholdings , and attached the
email s between the parties . CRF, Tab 17 at 4. On February 14, 2023, the agency
filed another update regarding the appellant’s TSP withholdings, asserting that
they had b een completed in the amount of 15% of her pay and had been applied to
the appellant’s account, including matching contributions . CRF, Tab 19 at 4.
The appellant has not responded to the September 30, 2022; November 30, 2022;
or February 14, 2023 submissions from the agenc y.
¶14 The agency ’s submissions detail its efforts to pay all back pay owed to the
appellant , including the correct amount of overtime pay and interest on the
overtime pay , and provide a narrative explanation and evidence in support of its
assertions . CRF, Ta b 14 at 4 -5, Tab 16 at 4. The appellant has not responded to
or otherwise rebutted this evidence . We therefore find the agency in compliance
with respect to its back pay obligations.
¶15 With respect to the TSP contributions, the agency provided two reports
detailing the funds that were applied to the appellant’s account in the TSP, and
the adjustment of her TSP account to include matching contributions. CRF,
Tab 19 at 7 -46. Because the agency has demonstrated that it completed the
contributions to the appellant’s TSP, and the appellant has not produced evidence
to the contrary, we find the agency is in compliance with respect to the
contributions to the appellant’s TSP account.
¶16 Finally, regarding the appellant’s September 20, 2022 request for sanctions,
we deny the request. The Board’s sanction authority is limited to the sanctions
necessary to obtain compliance with a Board order. Mercado v. Office of
Personne l Management , 115 M.S.P.R. 65 . ¶ 8 (2010) (stating that the Board’s
ability to award sanctions is a means to enforce compliance, a nd once compliance
has been demonstrated, it would be inappropriate to impose sanctions ). Beca use
the agency has complied with the Board’s order s, we are without authority to
impose sanctions in this matter.
8
¶17 Accordingly, in light of the agency’s evidence of compliance, the Board
finds the agency in compliance and dismisses the petition for enforcement. This
is the final decision of the Merit Systems Protection Board in this compliance
proceeding. Title 5 of the Code of Federal Regulations, section 1201. 183(c)(1)
(5 C.F.R. § 1201.183 (c)(1)).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable at torney
fees and costs. To be paid, you must meet the requirements set out 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
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determin es the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems P rotection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to s eek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by y our chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which m ust be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are in terested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board a ppellants before the 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 dec ision. If the action involves a claim of discrimination based on race,
color, religion, sex, national origin, or a disabling condition, you may be entitled
to representation by a court -appointed lawyer and to waiver of any requirement of
prepayment of fee s, costs, or other security. See 42 U.S.C. § 2000e -5(f) and
29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decis ion.
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 prohi bited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circu it or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B) .
6 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | THOME_SOCORRO_DA_0752_12_0339_X_1_FINAL_ORDER_2064822.pdf | 2023-08-31 | null | DA-0752 | NP |
2,747 | https://www.mspb.gov/decisions/nonprecedential/MUHAMMAD_KHURSHID_KHAN_AT_1221_20_0342_W_1_FINAL_ORDER_2064891.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KHURSHID KHAN MUHAMM AD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -20-0342 -W-1
DATE: August 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Khurshid Khan Muhammad , Artesia, California, pro se.
Tanya Burton , Bay Pines, Florida, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which granted the appellant’s request
for corrective action in this individual right of action (IRA) appeal . Generally,
we grant petitions such as this one only in the following circumstances : the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 ava ilable that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the agency has not established any basis under
section 1201.115 for granting the petition for review. As further stated below,
the appellant has established a basis in his cross peti tion for review for modifying
the relief order in part. Therefore, we DENY the petition for review and GRANT
the cross petition for review . Except as expressly MODIFIED to clarify the
manner in which the appellant satisfied the knowledge/timing test , we AFFIRM
the initial decision.
BACKGROUND
¶2 As relevant here, f rom October 27 to November 7, 2014, the appellant was
employed by the agency as a Fee Basis Physician at a n agency medical facility in
Albuquerque, New Mexico (Albuquerque VA). Initial Appeal Fi le (IAF), Tab 13
at 10, 75, 134. The appellant filed two whistleblower complaints with the Office
of Special Counsel (OSC) stemming from this tenure at the Albuquerque VA, and,
thereafter, two separate IRA appeals with the Board. Muhammad v. Department
of Veterans Affairs , MSPB Docket No. DE -1221 -15-0371 -W-1, Initial Appeal
File, Tab 1 at 5-6, 8-21; Muhammad v. Department of Veterans Affairs , MSPB
Docket No. DE-1221 -16-0182 -W-1, Initial Ap peal File (0182 IAF) , Tab 1 at 5-6,
8-30. The Board joined the se two appeals into one consolidated action.
Muhammad v. Department of Veterans Affairs , MSPB Docket No. DE-1221 -15-
3
0371 -W-2, Appeal File (0371 AF), Tab 3 at 1 -2. Following a hearing on the
consolidated matter , the administrative judge issued an initial de cision on
December 29, 2016, finding that , although the appellant had established Board
jurisdiction over the matter , he was not entitled to any corrective action.
0371 AF, Tab 61, Initial Decision at 9 -10, 20-21. The appellant filed a petition
for revie w of that initial decision , and the Board subsequently remanded the
matter . Muhammad v. Department of Veterans Affairs , MSPB Docket
No. DE-1221 -15-0371 -W-2, Remand Order (Feb. 21, 2023 ).
¶3 On February 24, 2020, the appellant filed the instant appeal with the Board
alleging that the agency had withdrawn a tentative offer of employment for a
Primary Care Phys ician position at an agency medical facility in Bay Pines,
Florida (Bay Pines VA) because of (1) “unsubstantiated retaliatory remarks”
made by Albuquerque VA agency employees and (2) his prior OSC complaints
and Board appeal . IAF, Tab 1 at 3, 5 -6. With his initial appeal form, the
appellant provided a February 10, 2020 close -out letter from OSC. Id. at 33-34.
The letter indicated that the appellant had alleged before OSC that the agency had
withdrawn its offer for the position at the Bay Pines VA because , while employed
at the Albuquerque VA in 2014 , he had made a protected disclosure regarding
patient safety issue s, which had thereafter been the subject of prior OSC
complaints and a prior Board IRA appeal. Id. at 33. The letter informed the
appellant of his Board appeal rights. Id. at 33-34.
¶4 The administrative judge issued a jurisdictional order wherein she explained
the circumstances under which the Board has jurisdiction to adjudicate IRA
appeals, and she ordered the appellant to file specific evidence and argument
regarding jurisdiction. I AF, Tab 3 at 2-8. Following the appellant’s response, the
administrative judge concluded that the Board had jurisdiction over the matter.
IAF, Tab 18 at 1 -3. To this end, she found that the appellant had exhausted his
claim with OSC. Id. at 2. She also found that the appellant had made a
nonfrivolous allegation that Bay Pines VA officials were aware of his prior OSC
4
complaints and his prior Board appeal , both of which constituted protected
activity under 5 U.S.C. § 2302 (b)(9). Id. She found, however, that the appellant
had failed to allege that officials at the Bay Pines VA had any knowledge of his
2014 disclosure regarding patient safety. Id. She also implicitly concluded that
the appellant had made a nonfrivolous allegation of a personnel action, i.e., the
agency’s withdrawal of its tentative job offer at the Bay Pines VA. Id. at 3. She
concluded that the issues to be decided, to the exclusion of all other issues, were
whether “Bay Pines VA officials improperly considered [the appellant’s]
OSC/MSPB activity” when it decided to withdraw his tentative job offer . Id.
Neither party objected to the administrative judge’s jurisdictional order .
¶5 Following a 2 -day hearing conduct ed via Zoom for Government, the
administrative judge issued an initial decision granting the appellant’s request for
corrective action. IAF, Tab 42, Initial Decision (ID) at 1, 15. In so doing, the
administrative judge found that “the appellant’s prior whi stleblower appeal with
[the Board] constituted protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i).”2
ID at 7. She also concluded that the appellant had demonstrated by preponderant
evidence tha t his protected activity was a contributing factor in the personnel
action at issue, i.e., the rescission of his tentative offer of employment , insofar as
he had satisfied the knowledge/timing test . ID at 7 -9. Last ly, she concluded that
the agency failed to show by clear and convincing evidence that it would have
rescinded the appellant’s tentative offer of employment in the absence of his
protected activity . ID at 9 -15. Accordingly, the administrative judge ordered the
agency to do the following: (1) delete from its internal computer system an entry
made on or about February 13, 2017 , wherein an agency management official ,
2 The initial decision did not address whether the appellant’s prior OSC complaints
constituted protected activity under 5 U.S.C. § 2302 (b)(9); however, this oversight does
not change the outcome of this appeal. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984) (explaining that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).
5
Dr. M., indicated that he did not recommend the appellant for appointment ; and
(2) rescind the withdrawal of the tentative offer of employment , reconstruct the
hiring process, and determine whether the appellant should be appointed to the
Primary Care Physician position . ID at 15. The administrative judge did not
order any interim relief because she found that “ no appropriate relief [was]
available” at the time. Id.
¶6 The agency has filed a petition for review, and the appellant has filed a
response to the petition for review and a cross petition for review. Petition for
Review (PFR) File, Tabs 1, 3. In its pe tition, the agency argues that (1) the
administrative judge erred in finding that the appellant satisfied the
knowledge/timing test and (2) it is unable to purge the February 13, 2017 entry
from its internal computer system . PFR File, Tab 1 at 4-12. The agency provides
additional documents to support its latter argument . Id. at 13-33. In his response
and cross petition f or review, the appellant contend s that (1) both of the agency’s
arguments lack merit and (2) he is entitled to additional relief . PFR File, Tab 3
at 4-22.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), an
appellant may establish a prima facie case of retaliation for whistleblowing
disclosures and/or protected activity by proving by preponderant evidence3 that
(1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D),
and (2) the whistleblowing disclosure or protected activity was a contributing
factor in the agency’s decision to take a personnel action against h im. 5 U.S.C.
§ 1221 (e)(1); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015).
3 Preponderant evidence is the degree o f relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
6
If the appellant makes out a prima facie case, the agency is given an opportunity
to prove, by clear and convincing evidence,4 that it would have taken the same
personnel action in the absence of the protected disclosure or activity . 5 U.S. C.
§ 1221 (e)(1) -(2); Webb , 122 M.S.P.R. 248, ¶ 6. In determining whether an
agency has met this burden, the Board will consider the following factors: (1) the
strength of the agency’ s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the agency t akes similar
actions against employees who are not whistleblowers but who ar e otherwise
similarly situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323
(Fed. Cir. 1999).
¶8 Here, the agency does not challenge, and we discern no basis to disturb, the
administrative judge’s conclusion that the appellant engaged in protected activity
vis-à-vis his prior Board IRA appeal. ID at 7 ; see 5 U.S.C. § 2302 (b)(9)(A)(i) .
Similarly, the agency does not contest , and we discern no basis to disturb, her
implicit conclusion that the agency’s rescission of its tentative job offer at the
Bay Pines VA constitute d a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(i).5
ID at 9. Last ly, the agency does not challenge the administrative judge’s
4 Clear and convincing evidence is that measure or degree of p roof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established . It is
a higher standard than preponderant evidence . 5 C.F.R. § 1209.4 (e).
5 As noted by the appellant in his response, the agency emphasizes in its petition for
review that it never provided the appellant with a formal tentative offer of employment.
PFR File, Tab 1 at 5, 8 nn.3 -4, Tab 3 at 7. The agency avers that the appell ant received
a draft copy of his tentative offer letter via a Freedom of Information Act request. PFR
File, Tab 1 at 5; IAF, Tab 13 at 26. T o the extent the agency argues that the
administrative judge erred in finding that the appellant identified a cogn izable
personnel action under 5 U.S.C. § 2302 (a)(2)(A)(i), we find its argument unavailing.
See Ruggieri v. Merit Systems Protection Board , 454 F.3d 1323 , 1325 -27 (Fed. Cir.
2006) (explaining that the term “appointment” as used in 5 U.S.C. § 2302 (a)(2)(A)(i)
covers an expansive range of acts and failure to act); see also Mattil v. Department of
State , 118 M .S.P.R. 662 , ¶ 23 (2012) (reasoning that an agency’s intentional exclusion
of an appellant from specific job opportunities may constitute a personnel action under
5 U.S.C. § 2302 (a)(2)(A)(i)).
7
weighing of the Carr factors or otherwise provide a basis to disturb her
conclusion that the agency failed to show by clear and convincing evidence that it
would have rescinded the appellant’s tentative offer of employment in the
absence of his protected activity. ID at 9 -15.
We agree with the administrative judge’s conclusion that the appellant satisfied
the knowledge/timing test ; however, we modify the initial decision to clarify the
manner by which he satisfied the same .
¶9 The agency argue s that the administrative judge erred in finding that the
appellant proved by preponderant evidence that his protected activity , i.e., his
prior Board IRA appeal, was a contributing factor in the agency’s rescission of its
tentative offer of employment . PFR File, Tab 1 at 6-8. To this end, it contends
that the appellant did not satisfy the knowledge/timing test because Dr. M., the
Bay Pines VA management official who elected to rescind the appellant’s job
offer , was unaware of the appellant’s prior IRA appeal ; rather, he was aware only
that t he appellant had previously been involved in unspecified litigation with the
agency. Id. at 8.
¶10 An appellant’s protected activity is a contributing factor if it in any way
affects an agency’s decision to take , or fail to take, a personnel action. See
Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶ 14 (2012) . One way to
establish contributing factor is the knowledge/timing test. Wadhwa v.
Department of Veterans Affairs , 110 M.S.P.R. 615 , ¶ 12, aff’d , 353 F. App’x 435
(Fed. Cir. 2009) . Under this test, an appellant can prove the contributing factor
element through evidence showing that the official taking the personnel action
knew of his protected activity and that the personnel action occurred within a
period of time such that a reasonable person could co nclude that the activity was
a contributing factor in the personnel action. Id.
¶11 Here, the administrative judge found that the appellant satisfied the
contributing factor criterion vis -à-vis the knowledge/timing test because Dr. M.
had actual knowledge of the appellant’s prior Board IRA appeal . ID at 7-9. In so
8
finding , she explained that there were two avenues through which Dr. M. m ay
have learned of the appellant’s protected activity . First, on his job application for
the position at the Bay Pines VA, the appellant explained that the nature of his
discharge from the Albuquerque VA was in dispute and indicated that this dispute
“ha[d] been subject to MSPB (whistle blower) proceedings.” ID at 3; IAF,
Tab 13 at 10 (punctuation as in original) . Second, an agency employee assigned
to review the appellant’s credentials and work history on behalf of the Bay Pines
VA, B.L. , drafted a February 10, 2017 email to agency management personnel ,
including Dr. M., that stated, in relevant part , as follows : “[T] he [Albuquerque]
VA credentialer called me and stated though [the appellant] left in 9/2014,6 they
just finished up litigation with him reference him being ‘let go’ as a Fee Basis
employee and he accusing the VA of falsifying/signing his records (he lost his
case.) ” ID at 4; IAF, Tab 13 at 25 (grammar and punctuation as in original).
¶12 In the initial decision , the administrative judge recounted the testimony of
Dr. M., who indicated that he could not recall whether he had seen the language
regarding the appellant’s whistleblowing case on his job application. ID at 8.
The administrative judge reasoned that, notwithstanding this uncertainty , Dr. M.
knew of the appellant’ s protected activity because he had received B.L.’s
February 10, 2017 email . ID at 9. The administrative judge acknowledged that
the subject email was devoid of any mention of whistleblowing , but found that
this omission was not dispositive because the email “put [Dr. M.] on notice that
the appellant h ad been in litigation with the agency concerning his prior
employment.” Id. Thus, she concluded that the appellant had satisfied the
knowledge prong of the knowledge/timing test vis-à-vis Dr. M.’s actual
knowledge of the appellant’s protected activity .7 We disagree with this finding
6 Insofar as the appellant left the employ of the Albuquerque VA in November 2014,
this statement was erroneous. IAF, Tab 13 at 10, 75, 134.
7 The initial decision did not address the latter prong of the test, i.e., the timing of the
agency’s personnel action ; accordingly, we herein address the same.
9
and we modify the initial decision to clarify the basis by which the appellant
satisfied the knowledge/timing test .
¶13 Under the WPEA, the Board has jurisdiction over claims of protected
activity arising under 5 U.S.C. § 2302 (b)(9)(A)(i), but not tho se arising under
(b)(9)(A)(ii). Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7
(2013). Protected activity under section 2302(b)(9)(A)(i) includes “the exercise
of any appeal, complaint, or grievance right granted by any law, rule, or
regulation . . . with regard to remedying a violation o f [5 U.S.C. § 2302 (b)(8)] .”
5 U.S.C. § 2302 (b)(9)(A)(i) (emphasis added). Section 2302 (b)(9)(A)(ii), by
contrast, encompasses “the exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation . . . other than with regard to remedying a
violation of [ 5 U.S.C. § 2302 (b)(8)] .” 5 U.S.C. § 2302 (b)(9)(A)( ii) (emphasis
added). Accordingly , a complaint and/or litigation stemming therefrom falls
under the purview of 5 U.S.C. § 2302 (b)(9)(A)(i) , and therefore within the ambit
of the WPEA, only if it seeks to remedy whistleblower reprisal . See Bishop v.
Department of Agriculture , 2022 MSPB 28, ¶ 15 (explaining that only complaints
seeking to remedy whistleblower reprisal are covered under 5 U.S.C.
§ 2302 (b)(9)(A)(i) ); see also Mudd , 120 M.S.P.R. 365 , ¶¶ 2, 7 (concluding that
the Board lacked jurisdiction over an appellant’s filing of a grievance that did not
seek to remedy a violation of 5 U.S.C. § 2302 (b)(8)) . Here, because B.L.’s
February 10, 2017 email was devoid of any mention of whistleblowing and made
only a vague reference to a n unspecified “case ” wherein the appellant had
unsuccessfully accused the agency of falsifying records , IAF, Tab 13 at 25, we
find that the admi nistrative judge erred by relying solely on the same to find that
Dr. M. had actual knowledge that the appellant had engaged in protected activity
under 5 U.S.C. § 2302 (b)(9)(A)(i) , ID at 9.
¶14 Actual knowledge on the part of the deciding official, however, is not the
only manner in which an appellant may satisfy the knowledge/timing test .
Indeed, an app ellant also may satisfy the knowledge prong of the
10
knowledge/timing test by proving that the official taking the action had
constructive knowledge of the protected disclosure, even if the official lacked
actual knowledge. Nasuti v. Department of State , 120 M.S.P.R. 588 , ¶ 7 (2014) .
An appellant may establish constructive knowledge by showing that an individual
with actual knowledge of the disclosure influenced the official accused of taking
the retaliatory action. Id.; see Staub v. Proctor Hospital , 562 U.S. 411 , 415 -16
(2011) (adopting the term “cat’s paw” to describe a case in which a particular
management official, acting because of an improper animus, influences an agency
official who is unaware of the improper animus when implementing a personnel
action ). Indeed, in an IRA appeal , the party before the Board is the agency, not
its individual officials, and lack of knowledge by a particular official is not
dispositive. Nasuti , 120 M.S.P.R. 588 , ¶ 7.
¶15 Here , as set forth in the initial decision, in researching the appellant’s work
history, B.L. telephoned and spoke with D.W., an employee at the Albuquerque
VA. ID at 4. At the time of this conversation, D.W. was undoubtedly aware of
the appellant’s prior IRA appeal insofar as she had testified as a witness in the
hearing for the matter on September 21, 2016, approximately 4 months earlier .
ID at 14; 0371 AF, Tab 59, Hearing Recording (HR) . B.L. memorialized her
conversation with D.W. in her February 10, 2017 email. ID at 8; IAF, Tab 13
at 25. In addition to conveying the above information regarding the appellant’s
prior litigation with the agency, D.W. also made the following statements to B.L.
during the conversation : (1) the appellant was “lazy”; (2) the appellant was a
“cry-baby”; and (3) the appellant did not have a strong w ork ethic. IAF, Tab 13
at 25. In a subsequent portion of her analysis, t he administrative judge found that
these negative assertions were unsubstantiated by the record and, therefore, that
D.W.’s “provocative language [was] undeniably intended to torpedo the
appellant’s candidacy at the Bay Pines VA.” ID at 12-14. She also concluded
that Dr. M. had given D.W. ’s assessment of the appellant “a great deal of
credence.” ID at 13. We discern no basis to distur b either of these conclusions.
11
See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002)
(holding that the Board must give deference to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing) . Thus, we find
that the appellant showed by preponderant evidence that Dr. M. had constructive
knowledge of the appellant’s protected activity . See Aquino v. Department of
Homeland Security , 121 M.S.P.R. 35 , ¶¶ 3-4, 18, 20-21 (2014) (affirming the
administrative j udge’s decision to impute knowledge of the appellant’s protected
disclosure to the proposing and deciding official s when the appellant’s supervisor
learned of the appellant’s protected disclosure and shortly thereafter reported
concerns about the quality o f his work performance to upp er management); see
also Dorney , 117 M.S.P.R. 480 , ¶¶ 2-3, 13, 17 (finding that the appellant made a
nonfriv olous allegation of constructive knowledge when she assert ed that a
hospital administrator , who was aware of her protected disclosures , had
influenced the selecting official by making disparaging comments about her , to
include stating that she was “slow” and not a “team player” ). We also find that
the appellant satisfied the timing prong of the kno wledge/timing test; indeed,
Dr. M. elected to rescind the appellant’s tentative job offer on February 13, 2017 ,
three days after his receipt of B.L.’s email, approximately 4.5 months after the
hearing for the appellant’s prior ( consolidated ) Board IRA appeal, and 1 year
after the appellant had filed the latter of his two prior Board IRA appeals . IAF,
Tab 13 at 24; HR; 0182 IAF, Tab 1 ; see Mastrullo v. Dep artment of Labor ,
123 M.S.P.R. 110 , ¶ 21 (2015) ( explain ing that the Board has held that a
personnel action taken within approximately 1 to 2 years of a protected disclosure
satisfies the knowledge/timing test). Accordingly , we affirm as modified the
administrative judge’s conclusion that the appellant satisfi ed the contributing
factor criterion vis -à-vis the knowledge/timing test.
12
The agency’s assertion regarding its inability to purge an entry from its internal
computer system is both unclear and unavailing .
¶16 The agency contends that it is unable to compl y with the administrative
judge’s order that it remove a specific entry from its in ternal computer system,
i.e., an entry made by Dr. M. on or about February 13, 2017 , wherein he indicated
that he was not recommending the appellant for appointment . PFR Fi le, Tab 1
at 9-10; ID at 15; IAF, Tab 13 at 33 . To this end, the agency seemingly argues
that removing the subject entry from “VetPro,” i.e., its internal computer system,
would violate an internal agency directive. PFR File, Tab 1 at 10. To support
this apparent argument , the agency provides the directive and documents
pertaining thereto .8 Id. at 10-33.
¶17 We find the agency’s assertion s both unclear and unavailing . Indeed , the
agency fails to clearly explain how its compliance with the administrati ve judge’s
order would violate the subject directive . To this end , the agency indicates only
that the entry at issue is not the type of entry that is “routinely removed/dele ted”
from the system, PFR File, Tab 1 at 10, and vaguely avers that the criteria f or
removal “does not appear to be met ,” id. at 11; see Tines v. Department of the Air
Force , 56 M.S.P.R. 90 , 92 (1992) (explaining that a petition for review must
contain sufficient specificity to enable the Board to ascertain whether there is a
serious evidentiary challenge and concluding that the appellant’s petition
contained neither evidence nor argument demonstrating error by the
admi nistrative judge). The agency also emphasizes that it has previously
removed information from VetPro only because of “typographical/key stroke
8 The agency did not submit this evidence , which predates the initial decision, to the
administrative judge. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980)
(finding that the Board generally will not consider evidence submitted for the first time
with the petition for review absent a showing that it was unavailable before the record
was cl osed despit e the party’s due diligence); 5 C.F.R. § 1201.115 (d). Regardless, as
set forth herein , these documents are not material to the outcome of this appeal. See
Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (stating that the Board
will not grant a petition for review based on new evidence absent a showing that i t is of
sufficient weight to warrant an outcome different from that of the initial decision).
13
error[s]” and “accidental entr[ies],” and that it cannot remove information “solely
because the [employee] doesn ’t like an entr y related to a negative finding. ” PFR
File, Tab 1 at 10-11. Here, however, the administrative judge did not order the
removal of the entry merely because the appellant did not like it; rather, she
ordered that the entry be purged because s he concluded that the appellant proved
that the agency had engaged in whistleblower retaliation under the WPEA. The
agency’s apparent disagreement with this finding does not provide a basis to
disturb the same. See Riggsbee v. Office of Personnel Managem ent, 111 M.S.P.R.
129, ¶ 11 (2009) (explaining that mere disagreement with the administrative
judge’s explained factual findings and legal conclusions therefrom does not
provide a basis to disturb the initial decision). Thus, the agency’s arguments are
unavailing .9
The appellant ’s cross petition for review is granted .
¶18 In his cross petition for review, the appellant asserts that the corrective
action order ed by the administrative judge wa s inadequate and he requests
additional relief. PFR File, Tab 3 at 20-22. First, he requests that the Board
order the agency to undertake a more comprehensive review of the entries in its
intern al computer system , remove any additional unfavorable entries pertaining to
him written by either Dr. M. or another Bay Pines VA employee , S.K., and
provide him with “concrete proof ” that any such entries have been purged . Id.
at 20. We agree that the ag ency must do an additional search and purge any
additional unfavorable entries from Bay Pines VA officials about the appellant’s
fitness for the Primary Care physician position. An appellant that prevails in an
IRA appeal shall be placed, as nearly as pos sible, in the position that the
9 Absent annotation, the agency has also seemingly highlighted portions of the
documents that it provides regarding the directive, to include a portion stating th at an
initial “denial of clinical privileges does not carry with it any right to due processes.”
PFR File, Tab 1 at 33. However, insofar as the appellant did not raise a due process
claim, the agency’s argument in this regard, if any, is unclear. See Ti nes, 56 M.S.P.R.
at 92.
14
individual would have been in had the prohibited personnel action not occurred .
5 U.S.C. § 1221 (g)(1)(A)(i) ; Armstrong v. Department of Justice , 107 M.S.P.R.
375, ¶ 34 (2007) , overruled on other grounds by Edwards v. Department of
Labor , 2022 MSPB 9 . Accordingly , to the extent Bay Pines VA officials made
any additional unfavorable entries in its computer system regarding the
appellant ’s fitness for the Primary Care Physician position at issue in this appeal ,
as set forth below, such entries must be purged .
¶19 Second, the appellant contends that the administrative judge should have
explicitly ordered the agency to appoint him to the Primary Care Physicia n
position . PFR File, Tab 3 at 20 -21. To this end, he explains that the
administrative judge merely ordered the agency to rescind the withdrawal of the
tentative job offer and reconstruct /continue the hiring process , whereas she
should have ordered the agency to appoint him with a retroactive start date . Id.
We disagree. Here , the record reflects tha t, prior to Dr. M.’s rescission of the
tentative offer , the agency drafted a letter of intent, which explained that the
appellant’s tentative job offer was conditional on a series of outstanding
prerequisites , to include an endorsement by the agency’s Medical Staff Executive
Board . IAF, Tab 13 at 26. Thus, we find that the administrative judge properly
provided the app ellant with status quo ante relief in this regard . See Armstrong ,
107 M.S.P.R. 375 , ¶ 34.
¶20 Lastly, the appellant avers that he is entitled to financial remuneration .
PFR File, Tab 3 at 21-22. To this end, he avers that he is entitled to unspecified
compensation for lost earnings and damage to his professional reputation . Id. He
also explains that hi s mental and physical hea lth have suffered as a result of the
agency’s retaliatory actions . Id. at 22. Because the appointment process was not
yet complete, we find that no back pay is warranted here ; however, a s set forth in
greater detail below , as the prevailing party in this matter , the appellant may
request consequential and/or compensatory damages in an addendum proceeding
within 60 calendar days of the date of this decision. 5 C.F.R. §§ 1201.201 -.203 .
15
ORDER
¶21 We ORDER the agency to provide the appellant with relief such that he is
placed as nearly as possible in the same situation he would have been in had the
agency had not retaliated against him for whistleblowing. 5 U.S.C.
§ 1221 (g)(1)(a)(i); see Rumsey v. Department of Justice , 120 M.S.P.R. 259 , ¶ 50
(2013) . Accordingly, the agency must purge from its VetPro system (1) the entry
made by Dr. M. on or about February 13, 2017 , concerning not recommending the
appellant for appointment and (2) after conducting a comprehensive search and
providing the results of such search to the appellant, any other unfavorable entries
pertaining to the appellant’s fitness for the Primary Care Physician position at the
Bay Pines VA .10 The agency must also rescind the withdrawal of the appellant’s
tentative job offer and reconstruct /continue the hiring process to determine
whether the appellant is qualified for appointment to the subject position. The
agency must complete these actions no later than 20 days after the date of this
decision.
¶22 We further ORDER the agency to tell the appellant promp tly 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).
¶23 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 d ecision in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain the specific reasons why the appellant believes that the agency has
10 In its review of its VetPro system as to such unfavorable entries, the agency must
provide a copy of all the records referring to the appellant’s fitness for the Primary Care
Physician position at the Bay Pines VA. The agency must also provide the appellant
the opportunity to state whether any of these entries are unfavorable. If there is any
dispute as to whether an entry is unfavorable, the appellant may file a petition for
enforcement in accordance with this Ord er.
16
not fully carried out the Board’s Order, and should include the dates and results
of any communication with the agency. 5 C.F.R. § 1201.182 (a).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T CONSEQUENTIAL AND/ OR
COMPENSATORY DAMAGES
You may be entitle d 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
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), 1221(g)(1)(A)(ii), which
you may be entitl ed 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 i nitial decision on your appeal.
17
NOTICE TO THE PARTIE S
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 RIG HTS11
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 claim s determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
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.
18
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your cas e, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
19
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
20
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Fede ral
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MUHAMMAD_KHURSHID_KHAN_AT_1221_20_0342_W_1_FINAL_ORDER_2064891.pdf | 2023-08-31 | null | AT-1221 | NP |
2,748 | https://www.mspb.gov/decisions/nonprecedential/CLAYTON_JEFFREY_CB_7121_18_0005_V_1_FINAL_ORDER_2064279.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY CLAYTON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CB-7121 -18-0005 -V-1
DATE: August 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Allison B. Eddy , Esquire, and Laura A. O’ Reilly , Esquire, Virginia Beach,
Virginia, for the appellant.
Joshua Barefoot , Esquire, Winston Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant filed a request for review of an arbitration decision that
sustained the agency’s decision to remove him for unacceptable performance .
Reques t for Review (RFR) File, Tab 1. O n December 21, 2022, the Board issued
an Order granting the appellant’s request for review and forwarding the matter 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Washington Regional Office for an administrative judge to issue a
recommended decision regarding two issues . RFR File, Tab 7 . After the matter
was forwarded to the regional offi ce, the appellant requested to withdraw his
appeal . Clayton v. Department of Veterans Affairs , MSPB Docket No. CB-7121 -
18-0005 -H-1, Referral Proceeding File (RPF) , Tab 12 at 3. In so doing, the
appellant stated that he understood that his withdrawal was “an act of finality
which will conclude the pending case relating to his removal from federal
employment .” Id. (punctuation in original). On March 7, 2023, the
administrative judge issued an initial decision dismissing the matter as withdrawn
and providi ng the appellant with Board appeal rights. RPF, Tab 14, Initial
Decision at 1, 3 -10.
¶2 Given the posture of the appeal, the administrative judge should not have
issued an initial decision or provided the appellant with appeal rights; rather, he
should have forwarded a recommend ed decision back to the Board. Accordingly,
we VACATE the March 7, 2023 initial decision and clarify that the appellant
does not have the right to appeal th e administrative judge’s decision .
¶3 Finding that withdrawal is appropriate under the circumstances, we
DISMISS the request for review as withdrawn with prejudice to refiling. 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 OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statut e, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of availab le appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may resu lt in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropr iate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appea ls for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U. S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Form s 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 inv olving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obta in
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representativ e
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement o f prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations 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 req uest for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judic ial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2 302(b)(8) or
other protected activities listed in 5 U.S.C. § 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 all egations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals fo r the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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 Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CLAYTON_JEFFREY_CB_7121_18_0005_V_1_FINAL_ORDER_2064279.pdf | 2023-08-30 | null | CB-7121 | NP |
2,749 | https://www.mspb.gov/decisions/nonprecedential/COLON_ARLINE_CB_7521_19_0009_T_1_FINAL_ORDER_2064371.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOCIAL SECURITY
ADMINISTRATION,
Petitioner,
v.
ARLINE COLON,
Respondent. DOCKET NUMBER
CB-7521 -19-0009 -T-1
DATE: August 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Yarbrough , Esquire, and Sharese M. Reyes, Esquire, Atlanta,
Georgia, for the petitioner.
Peter H. Noone, Esquire, Danielle M. Gifford, Esquire, and Lauris Ngai
Otieno, Esquire, Belmont, Massachusetts, for the respondent.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The respondent has filed a petition for review of the initial decision, which
sustained the charge of conduct unbecoming an administrative law judge (ALJ),
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
found that the respondent did not prove any of her affirmative defens es, and
concluded that there was good cause to remove her from the ALJ 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 i s based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the adjudicating
ALJ’s rulings during either the course of the appeal or the initial decision were
not consistent with require d procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the respondent ’s due diligence,
was not available when the record closed. Title 5 of the Code of Federal
Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the
filings in this appeal, we conclude that the respondent has not establish ed any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review. Except as expressly MODIFIED to supplement the
analysis of the charge, the respondent’s disability discrimination claims , and the
penalt y factors, we AFFIRM the initial decision. The Social Security
Administration (SSA) is authorized to remove the respondent from the ALJ
position.
BACKGROUND
¶2 The following facts, as recited in the initial decision, are generally
undisputed. Initial Appeal File (IAF), Tab 166, Initial Decision (ID). The
respondent started working at SSA as an Attorney -Advisor in September 2001.
ID at 5. The respondent has he ld the position of an SSA ALJ since July 20, 2008.
Id.
¶3 On August 17, 2018, the respondent called 911 and stated that her husband
had pointed a gun at her and her son. ID at 5. The police were dispatched to the
respondent’s residence. ID at 6. The re spondent told a deputy police officer that
3
her husband had pointed a gun at her and her son, and that he r husband was a
black man, active military, an expert shooter, and dangerous. Id. After speaking
with the respondent, two deputy police officers searc hed the husband and
determined that he was not armed. Id. The respondent’s husband told the
deputies that the respondent’s statements to the 911 operator were not true. Id.
He explained that he made a video recording with his cell phone of the responde nt
making the 911 call, and he played the video for the deputies. Id. The
respondent’s husband informed the deputies that he and the respondent had an
argument about her drinking before she called 911. Id. One of the deputies
spoke to the respondent’s son, who stated that his father had not pointed a gun at
him or the respondent. Id. One of the deputies re -interviewed the respondent and
advised her of her Miranda rights. Id. The respondent continued to falsely allege
that her husband pointed a gun a t her and her son, and she was arrested for
reporting false information to a law enforcement officer. Id. The respondent was
off duty and not on SSA property at the time of this incident. Id. Following her
arrest, the respondent requested leave to seek medical treatment in September
2018, which SSA granted, and her cases were reassigned while she was on leave.
ID at 6 -7.
¶4 On November 16, 2018, the respondent attended a Weingarten interview,2 in
which she was asked about her August 17, 2018 arrest and her communications
with a former ALJ. ID at 8 -9. The respondent’s union representative also
attended this meeting. ID at 9. The respondent declined to answer some of the
questions because of the pending criminal case related to her August 17, 2018
2 This is a reference to National Labor Relations Board v. Weingarten Inc. , 420 U.S.
251, 267 (1975), which held that an employee has a right to union representation during
an investigatory interview when the employee reasonably believes that discipline may
result. Although Weingarten only applies to private -sector employees, Congress has
granted Federal employees Weingarten -type rights, as set forth in 5 U.S.C.
§ 7114 (a)(2).
4
arrest, and she declined to answer some of the questions because they related to
private conversations. Id.
¶5 On December 2, 2018, the police responded to an automobile accident. ID
at 7. After carrying out an investigation, the police determined that the
respondent operated her vehicle under the influence of alcohol and left the scene
of the accident without stopping. Id. The respondent was arrested and charged
with driving under the influence and leaving the scene of a crash. Id. When
questioned by deput ies, the respondent initially denied having been driving her
vehicle and stated that her friend had been driving. Id. Following the arrest, the
respondent was placed in a police vehicle, and she yelled and kicked the police
vehicle door. Id. The respon dent was off duty and not on SSA property at the
time of this incident. Id.
¶6 On or around December 7, 2018, the respondent was informed that she was
being placed in a nonduty status pending an investigation into the matters
surrounding her recent arrests . Id.
¶7 On January 30, 2019, the respondent entered a plea of nolo contendere to all
three criminal charges (providing false information to a law enforcement officer,
driving under the influence with property damage or personal injury, and leaving
the sce ne of a crash with property damage). Id. The court withheld adjudication
of the charges of providing false information to a law enforcement officer and
leaving the scene of a crash with property damage, adjudicated the respondent
guilty of driving under the influence with property damage or personal injury, and
placed her on a period of probation. ID at 7 -8. In February 2020, the court
determined that the respondent successfully completed her period of probation
and terminated her probation. ID at 8. SSA did not conduct any additional
Weingarten meetings with the respondent. ID at 9.
¶8 On September 26, 2019, SSA filed a Complaint that sought a finding,
pursuant to 5 U.S.C. § 7521 , that good cause exists to remove the respondent
based on a charge of conduct unbecoming an ALJ (specifications 1 -4 related to
5
the August 2018 arrest and specifications 5 -12 related to the December 2018
arrest). ID at 1; IAF, Tab 1. The respondent filed an Answer and asserted several
affirmative defenses. ID at 2; IAF, Tab 3. After a 7 -day hearing, the
adjudicating ALJ issued an initial decision that made the following findings:
(1) SSA proved the specifications and charge of conduct unbecoming an ALJ ;
(2) the respondent did not prove any of her affirmative defenses; (3) good cause
exists to discipline the respondent; and (4) SSA demonstrated good cause to
remove the respondent from her ALJ position. ID at 2, 9-38; Hearing Transcripts.
The respondent has filed a petition for review, SSA has filed a response, and the
respondent has filed a reply. Petition for Review (PFR) File, Tabs 9, 12, 15.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 An agency may take an action against an ALJ only for “good cause,” as
deter mined after a hearing by the Board. 5 U.S.C. § 7521 (a). SSA must prove
good cause by preponderant evidence. Social Security Administration v. Long ,
113 M.S.P.R. 190, ¶ 12 (2010), aff’d , 635 F.3d 526 (Fed. Cir. 2011) and
overruled on other ground s by Department of Health and Human Services v.
Jarboe , 2023 MSPB 22 . Congress has not defined the term “good cause” for
purposes o f section 7521. Id., ¶ 13. The Board, however, has adopted a flexible
approach in which good cause is defined according to the individual
circumstances of each case. Department of Labor v. Avery , 120 M.S.P.R. 150, ¶ 5
(2013), aff’d sub nom. , Berlin v. Department of Labor , 772 F.3d 890 (Fed. Cir.
2014); Long , 113 M.S.P.R. 190, ¶ 13.
SSA proved the charge of conduct unbecoming an ALJ.
¶10 The adjudicating ALJ acknowledged that there were police reports, video
and audio recordings, and testimony of law enforcement officers, as well as other
evidence, to support the allegations involving the respondent’s conduct on
August 17, 2018, and December 2, 2018. ID at 9, 11. He noted that the
respondent did not dispute the factual allegations surrounding her conduct on
6
these dates, but she asserted that she had no recollection of the events due to an
alcoholic blackout. ID at 9, 11.
¶11 The adju dicating ALJ defined conduct unbecoming as conduct that violates
generally accepted rules of conduct. ID at 9. He noted that the American Bar
Association (ABA) Model Code of Judicial Conduct is an appropriate guide for
evaluating ALJ conduct and that SSA provided the respondent with notice of the
Annual Personnel Reminders (APRs), which contain Standards of Conduct for
executive branch employees. ID at 9 -10. He found that SSA proved all of the
specifications, and he concluded that the respondent’s condu ct constituted
conduct unbecoming an ALJ. ID at 10 -12. In his analysis of the respondent’s
affirmative defenses, he determined that some of the specifications should be
merged , and he merged specifications 1 and 2, specifications 3 and 4,
specifications 5, 6, and 12, specifications 7 and 11, and specifications 8 and 9.3
ID at 17, 25 -27. The ALJ also considered and rejected the respondent’s argument
that her alcohol intoxication during the incidents in question negated her intent,
finding, among other th ings, that a charge of conduct unbecoming did not require
proof of specific intent.4 ID at 27 -28.
¶12 On review, the respondent makes the following arguments related to the
charge and specifications: (1) the ALJ did not use the proper standard to define
conduct unbecoming; (2) the ALJ should have analyzed certain specifications
3 Although the ALJ merged these specifications, he noted that there was no error in SSA
presenting the 12 separate specifications in the Complaint to present ex igencies of
proof. ID at 27. On review, n either party explicitly challenge s the decision to merg e
these specifications. To minimize any confusion, we adopt herein the merged
specifications.
4 Because merger and the respondent’s intent may be relevant to whether SSA proved
the specifications and charge, we modify the initial decision to discuss the se issues in
our assessment of the charge and specifications, and not the affirmative defenses. See,
e.g., Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (stating that
an adjudicatory error that is not prejudicial to a party’s substantive rights provides no
basis for reversal of an initial decision) .
7
under a falsification standard, which requires proof of intent; and (3) the ALJ
erred because he failed to consider the disease model of alcoholism and how the
respondent lacked the requisite knowledge and intent because of her alcoholism
on the dates in question. PFR File, Tab 9 at 3 -8.
¶13 We have considered the respondent’s argument that the ALJ did not
correctly analyze the conduct unbecoming charge because he did not assess
whethe r her conduct was “improper, unsuitable, or detracting from [her] character
or reputation.” Id. at 5 (quoting Long , 113 M.S.P.R. 190, ¶ 42). This argument is
not persuasive. The ALJ accurately cited Long for the proposition that conduct
unbecoming is conduct that violates generally accepted rules of conduct. ID at 9
(citing Long , 113 M.S.P.R. 190, ¶ 40). The ALJ also properly relied on the ABA
Model Code of Judicial Conduct. See Long , 113 M.S.P.R. 190, ¶ 41 (finding that
the ABA Model Code is an appropriate guide for evaluating ALJ conduct). The
respondent has not persuaded us that the ALJ’s omission of the additional
language from Long prejudiced her in any way. See Panter v. Department of the
Air Force , 22 M.S.P.R. 281 , 282 (1984) (stating that an adjudicatory error t hat is
not prejudicial to a party’s substantive rights provides no basis for reversal of the
initial decision) .
¶14 The respondent also challenges the ALJ’s reliance on section 1.6 of the
Standards of Conduct contained with the APRs, which described conduct on and
off the job. PFR File, Tab 9 at 5; ID at 10. Section 1.6 states, in relevant part,
“You are responsible for observing the requirements of courtesy and
consideration while dealing with coworkers or serving the public and must
conduct yourself with propriety.” ID at 10; IAF, Tab 140 at 179. It does not
appear that, during the incidents in question or when she entered into the nolo
contendere pleas, the respondent was “dealing with coworkers” or “serving the
public.” However, e ven if the ALJ improp erly relied on the APRs or this
excerpted language in his analysis of the charge and specifications, the
8
respondent has not persuaded us that a different outcome is warranted. Panter ,
22 M.S.P.R. at 282.
¶15 We have also considered the respondent’s argument t hat SSA must prove
falsification for specifications 1 -3 and 8 -9 (involving allegations of false or
untruthful statements), and SSA could not prove these specifications because she
lacked the requisite knowledge or intent due to her alcoholism. PFR File, T ab 9
at 5 -8. This argument relates to an issue of proof. A charge of conduct
unbecoming has no specific elements of proof other than the acts alleged in
support of the broad label. Canada v. Department of Homeland Security ,
113 M.S.P.R. 509, ¶ 9 (2010). By contrast, falsification requires proof that the
respondent (1) supplied wrong information and (2) knowingly did so with the
intention of defrauding, deceiving, or misleading the agency for her own private
material gain. Boo v. Department of Homeland Se curity , 122 M.S.P.R. 100,
¶¶ 10, 12 (2014); see Ludlum v. Department of Justice , 278 F.3d 1280 , 1284 (Fed.
Cir. 2002) (“Falsification involves an affirmative misrepresentation, and requires
intent to deceive.”).
¶16 We are not persuaded that the ALJ should have analyzed specifications 1 -3
and 8 -9 (or merged specifications 1/2, 3/4, and 8/9) using the falsification
standard. The respondent cites to some initial decisions to support her argument,
PFR File, Tab 9 at 6, but initial decisions are of no precedential value and cannot
be cited or relied on as controlling authority , Rockwell v. Department of
Commerce , 39 M.S.P.R. 217 , 222 (1988); 5 C.F.R. § 1201.113 . We have
considered the two remaining decisions cited by the respondent, LaChance v.
Merit Systems Protection Board , 147 F.3d 1367 (Fed. Cir. 1998), and Boltz v.
Social Security Administration , 111 M.S.P.R. 568, ¶ 16 (2009). PFR File, Tab 9
at 6. Both of these cases stand for the proposition that when an agency uses
general charging language, the Board must look to the specifications to determine
what conduct the agency is relyin g on as the basis for its proposed disciplinary
action. LaChance , 147 F.3d at 1371; Boltz , 111 M.S.P.R. 568, ¶ 16. Consistent
9
with this precedent, we have carefully reviewed the specifications. We find that
it was proper to evaluate the charge and specifications as conduct unbecoming.
¶17 We further find that LaChance and Boltz are distinguishable from the
instant matter . LaChance did not involve charges of conduct unbecoming and
falsification. In Boltz , 111 M.S.P.R. 568, ¶¶ 2, 12, each of the three
specificati ons of the conduct unbecoming charge involved allegations of false
statements. By contrast, here, there were numerous specifications, including
multiple merged specifications, which did not involve any allegations of false or
untruthful statements. See PFR File, Tab 9 at 8 (acknowledging that only original
specifications 1 -3 and 8 -9 involve allegations of false or untruthful statements).
Moreover, in Botlz , the agency alleged that Ms. Boltz was “well aware” that her
statements were inaccurate , and it rej ected Ms. Boltz’s explanations as
disingenuous, not credible, and disturbing , Boltz , 111 M.S.P.R. 568, ¶ 17, but
there is no comparab le language in the Complaint against the respondent .
¶18 Based on our review of the specifications, SSA’s charge is properly written,
and should be evaluated, as conduct unbecoming. Although some of the
specifications (merged or otherwise) involved allegati ons of false or untruthful
statements, the Board has held that the use of the words “falsified” and “falsely”
in the narrative accounts of certain specifications does not mean that the agency
was required to prove falsification.5 Cross v. Department of th e Army ,
89 M.S.P.R. 62, ¶ 9 (2001). For the reasons described herein and in the initial
decision, SSA proved the misconduct alleged i n all of the specifications, and we
find that the respondent’s misconduct constitutes conduct that is improper,
unsuitable, or detracts from one’s character or reputation and violates generally
5 Because we have found that SSA is not required to prove falsificati on, we need not
evaluate the issue of intent. ID at 27 -28. However, the issue of the respondent’s intent
due to alcohol -induced blackouts may be relevant in assessing the reasonableness of
SSA’s chosen penalty , and we consider this issue in our penalty d iscussion.
10
accepted rules of conduct.6 We therefore agree with the ALJ t hat SSA proved the
charge of conduct unbecoming an ALJ.
We agree with the ALJ that the respondent did not prove her affirmative defenses.
¶19 In the initial decision, the ALJ found that the respondent did not prove her
affirmative defenses, including that SSA did not comply with the collective
bargaining agreement (CBA), SSA failed to consider her medical conditions in its
penalty, and her conduct did not relate to her position as an ALJ. ID at 12 -16.
The ALJ noted that the respondent raised other claims in h er post -hearing brief
that were not raised in her Answer, including that SSA did not conduct a
sufficient investigation before initiating the Complaint and disability
discrimination, but he considered them and found that the respondent did not
prove these claims.7 ID at 17-28.
¶20 On review, the respondent argues that the ALJ improperly analyzed her
CBA claim, her disability discrimination claims, and the relationship between the
misconduct and her ALJ position. PFR File, Tab 9 at 9 -11, 28 -37. We address
each argument in turn, and find that a different outcome is not warranted.
¶21 Regarding the respondent’s claim of a CBA violation, the ALJ found that
the respondent did not prove that SSA violated the CBA or otherwise committed
harmful procedural error regar ding any CBA provision. ID at 13; see Stephen v.
Department of the Air Force , 47 M.S.P.R. 672 , 681, 685 (1991) (explaining that
6 Even if we did not sustain or consider merged specifications 1/2, 3/4, and 8/9, the
remaining proven specifications constitute conduct that is improper, unsuitable, or
detracts from one’s character or reputation . We would find that SSA proved the charge
of conduct unbecoming an ALJ on these alternative grounds. See, e.g. , Burroughs v.
Department of the Army, 918 F.2d 170 , 172 (Fed. Cir. 1990) (finding that, when more
than one event or factual specification supports a single charge, proof of one or more,
but not all, of the supporting specifications is sufficient to sustain the charge).
7 Because the ALJ ultimately considered these claims in the initial decision , we need
not address any arguments regarding his finding that these claims were not raised in the
respondent’s Answer.
11
harmful error under 5 U.S.C. § 7701 (c)(2)(A) cannot be presumed; an agency
error is harmful only when the record shows that the procedural error was likely
to have caused the agency to reach a conclusion di fferent from the one it would
have reached in the absence or cure of the error ); 5 C.F.R. § 1201.4 (r). The ALJ
alternatively addressed the respondent’s claim regarding her Weingarten rights.
He noted that the respondent had representation during the November 16, 2018
Weingarten meeting, SSA determined that another Weingarten interview was
unnecessary , and there was no authority to support the proposition that a second
Weingarten interview was required or that SSA violated the CBA in this regard.
ID at 13 -14. The ALJ further found that SSA had sufficient evidence to initiate a
complaint against the respondent and there was no harmful procedural error on
this basis. ID at 17 -20.
¶22 On review , the respondent asserts that SSA’s investigation was flawed and
failed to comply with the CBA by not allowing her an opportunity —besides the
first Weingarten interview, when the criminal charges were still pending against
her—to present her side of the st ory. PFR File, Tab 9 at 30 -31. She asserts that
SSA failed to meaningfully investigate the allegations because no officials ever
spoke with her, her husband, her doctors, or anyone else who would be favorable
to her following the December 2018 incident o r after the criminal charges were
resolved. Id. at 31 -34. In other words, she asserts that she was not given a
meaningful opportunity to explain what happened before SSA sought her
removal. By the respondent’s own admission, however, a second Weingarten
interview was not required. Id. at 33. The respondent also asserts that SSA made
an adverse inference against her due to the invocation of her right against
self-incrimination during the Weingarten interview. Id. at 31 (citing IAF,
Tab 147 at 30; Heari ng Transcript ( HT) 2 at 236 -39; HT 3 at 112 -13, 154).
However, these citations to the record do not support the assertion that SSA
managers made an adverse inference against her. We have considered the
respondent’s remaining arguments, but we agree with the ALJ that the respondent
12
did not prove that SSA violated the CBA related to its investigation or that any
such violation constituted harmful procedural error.
¶23 In the initial decision, the ALJ made the following findings regarding the
respondent’s disabi lity discrimination claims: (1) she never disclosed to SSA that
she suffered from a disability or needed a reasonable accommodation prior to the
August 17, 2018 incident; (2) following the August 17, 2018 incident, the
respondent never made a request for a reasonable accommodation related to her
alcoholism or any other medical issue or alleged disability; (3) she did not prove
that she suffered from a disability; (4) the antidiscrimination statutes do not
protect an employee from being disciplined for misc onduct; and (5) the
respondent did not prove her claim of disparate treatment disability
discrimination because she did not identify any comparators. ID at 20 -25.
¶24 The respondent does not challenge the ALJ’s statement that she did not
inform SSA prior to t he August 17, 2018 incident that she had a disability or that
she needed accommodation. ID at 21. However, we agree with the respondent
that the ALJ erred when he stated that the respondent never requested an
accommodation. Id. Rather, we construe the respondent’s request for extended
medical leave following the August 17, 2018 incident as a request for reasonable
accommodation. ID at 6; IAF, Tab 126 at 6, 8, 10 -11, 13. We modify the initial
decision in this regard.
¶25 The respondent has not identified on review any other accommodation that
she requested that SSA denied or ignored. For example, the respondent testified
that she asked for some of her cases to be reassigned while she was on extended
leave and in treatment, and SSA did so. HT 4 at 202 (t estimony of the
respondent). The respondent requested to telework on certain days, and SSA
granted this request. IAF, Tab 147 at 31. Moreover, the respondent testified that
she asked for —and SSA granted —more time to work on certain cases upon her
return from extended leave. HT 3 at 281 -84 (testimony of the respondent); HT 4
at 202 -03 (testimony of the respondent).
13
¶26 The respondent also contends that after she was removed from hearings
following the December 17, 2018 incident, she asked for an explanatio n of the
types of work that she was allowed to perform. She asserts that this request was
“tantamount to another accommodation request,”8 and she contends that SSA
made no attempt to engage in the interactive process regarding this request. PFR
File, Tab 9 at 35 -36 (citing IAF, Tab 147 at 33; HT 3 at 119 -20). Contrary to the
respondent’s assertion, these citations to the record show that she was advised of
the work that she could perform during this time, i.e., “consider file reviews or
confer with the [ Hearing Office Chief ALJ].” IAF, Tab 147 at 33; HT 3 at 118 -20
(testimony of the Chief ALJ). Moreover, she testified that her supervisor was
“sympathetic” to her during this period, and he encouraged her to “take the extra
time [she] needed to complete t asks.” HT 3 at 284 -85 (testimony of the
respondent). For these reasons, we agree with the ALJ that the respondent did not
prove her failure to accommodate claim.
¶27 The respondent also challenges the ALJ’s analysis of her disparate
treatment disability disc rimination claim. In pertinent part, she asserts that the
ALJ failed to address evidence that SSA did not impose the same discipline on
two ALJs without a disability and did not uniformly apply the same rule to her.
PFR File, Tab 9 at 36 -37. Contrary to the respondent’s assertion on review, the
ALJ addressed this evidence, but he found that the other ALJs cited by the
respondent were not proper comparators.9 ID at 23 -25. We agree that the ALJs
8 We need not decide if her request for an explanation constituted a reasonable
accommodation request under the circumstances. Even if we assume for the purposes
of our analysis that the respondent’s request for an explanation was a reasonable
accommodatio n request, SSA gave her the requested explanation.
9 The ALJ cited to Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010),
in his discussion of the respondent’s disparate treatment disability discrimination claim ,
and he noted that even if the ALJs were comparators, SSA demonstrated that sufficient
differences existed to explain a difference in sanction. ID at 24 -25. However, we find
that the ALJ’s reliance on Lewis is misplaced for two reasons. First, i n Lewis ,
113 M.S.P.R. 657 , ¶ 5, the Board discussed disp arate treatment in the absence of an
14
cited by the respondent were not proper comparators because the totality of their
misconduct was different than the respondent’s misconduct. ID at 24; see Adams
v. Department of Labor , 112 M.S.P.R. 288, ¶ 13 (2009) (stating that for
employees to be deemed similarly situated for purposes of an affirmative defense
of discrimination , they must have reported to the same supervisor, been subjected
to the same standards governing discipline, and enga ged in conduct similar to the
respondent’s without differentiating or mitigating circumstances); see also
Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 42 (stating that
the standards and methods of proof that apply to Title VII disparate treatment
claims also apply to disparate treatment disability discrimination claims ). There
are numerous additional specifications in the Complaint against the respondent
that we have sustained that were not present in the other ALJ cases that she cites
on review. We therefore find that t he other two ALJs are not proper comparators
and conclude that the respondent has not proven her claim of disparate treatment
disability discrimination.
¶28 Finally, the respondent asserts that the ALJ erred when he rejected her
argument that her conduct does not have a sufficient relationship to her ALJ
position. PFR File, Tab 9 at 9; ID at 16. The ALJ correctly noted that the good
cause standard for disciplinary action against an ALJ is not equivalent to the
efficiency -of-the-service standard in actions taken pursuant to 5 U.S.C. § 7513 ,
and no nexus analysis was necessary here. ID at 16 (citing Long , 113 M.S.P.R.
190, ¶¶ 45-46). Rather, having held that SSA proved the conduct unbecoming
charge, the ALJ found that there was good cause to discipline the respondent. ID
at 16.
allegation of discrimination as part of the penalty analysis, not as part of a disparate
treatment affirmative defense . Second, and more importantly, the Board overruled
Lewis in Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 9. Accordingly, we vacate the
ALJ’s reliance on Lewis in this regard.
15
¶29 On review, the respondent acknowledges that the standards are not
equivalent, but she states that the Board looks to the efficiency -of-the-servic e
decisions for guidance in assessing good cause. PFR File, Tab 9 at 9 -11. She
argues that the ALJ failed to conduct any analysis of whether her off -duty
conduct “actually eroded public confidence in the independence, integrity, and
impartiality of the j udiciary.” Id. She asserts that there is no evidence that her
off-duty conduct “reflect[s] adversely on her honesty, impartiality, temperament
or fitness to serve as an ALJ.” Id. Finally, she contrasts the facts of her case to
other ALJ cases. Id.
¶30 The respondent’s arguments are not persuasive. The ALJ noted in his
penalty analysis that the SSA Chief ALJ believed that the respondent’s conduct
conflicted with making disability determinations and reflected adversely on SSA.
ID at 32; see, e.g. , HT 3 at 81 (testifying that the way that the respondent
“identified her husband to police . . . could lead claimants . . . who are black, or
military, veterans, who [have] substance abuse issues . . . [to say] I don’t feel that
you can be impartial in my case based on what you’ve done”) (testimony of the
Chief ALJ). The ALJ also considered that two claimants filed complaints in U.S.
district court regarding the incidents and the respondent’s arrests and argued that
she was not fit to hear their cases as an SSA ALJ. ID at 31; see IAF, Tab 135
at 26, 46 (alleging, among other things, that the two incidents together “show that
[the respondent] does not have the kind of judicial temperament needed to
conduct hearings and issue decisions,” and requesting that the respective cases
“be remanded to another ALJ who has not been shown to lack integrity and
fairness”). We have considered the other ALJ cases cited by the respondent, but
none warrant a different outcome.
SSA has demonstrated good cause to remove the respondent from her ALJ
position.
¶31 A Board decision finding good cause “on a proposed [petitioner] action . . .
against an [ALJ] will authorize the [petitioner] to take a disciplinary action.”
16
Social Security Administration v. Levinson , 2023 MSPB 20 , ¶ 37; 5 C.F.R.
§ 1201.140 (b). Accordingly, when the Board mak es a good cause determination,
it authorizes but does not require the petitioner to act. E.g., Avery , 120 M.S.P.R.
150, ¶¶ 13 -14 (finding good cause under 5 U.S.C. § 7521 and “authoriz[ing]” the
petitioner to furlough respondent ALJs); Long , 113 M.S.P.R. 190 , ¶¶ 42, 55
(finding good cause under 5 U.S.C. § 7521 and “authoriz[ing]” the petitioner to
remove the respondent ALJ); Social Security Admini stration v. Steverson ,
111 M.S.P.R. 649 , ¶¶ 20-21 (2009) (same) , aff’d per curium , 383 F. App’x 939
(Fed. Cir. 2010) and overruled on other grounds by Jarboe , 2023 MSPB 22 .
¶32 In original jurisdiction cases such as this one, under 5 U.S.C. § 7521 , the
Board looks to the factors articulated in Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 305 -06 (1981). Levinson , 2023 MSPB 20 , ¶ 41; Long ,
113 M.S.P.R. 190 , ¶ 47. In Douglas , 5 M.S.P.R. at 305-06, the Board articulated
a nonexhaustive list of factors relevant to penalty d eterminations. In pertinent
part, the ALJ consider ed the nature and seriousness of the offense, the
prominence of the ALJ position, the effect of the offense on the respondent’s
ability to perform and the effect on her supervisor’s confidence, the consist ency
of the penalty with those imposed on other employees for the same or similar
offenses , the notoriety of the offense, the fact that the respondent was on notice
of the rules of conduct, the potential for rehabilitation, and the adequacy of other
sancti ons to deter the misconduct. ID at 29-36. The ALJ also considered as
mitigating factors the absence of any prior disciplinary history, the respondent’s
lengthy work record, her several medical conditions, her continued rehabilitation
efforts, and her goo d working relationships with several other employees and
colleagues. ID at 31, 35. The ALJ ultimately concluded that there was good
cause for SSA to remove the respondent.10 ID at 29 -37. We have considered the
10 Notwithstanding that finding, the ALJ noted that SS A “may consider offering
[r]espondent a position as an attorney -advisor, as a matter of clemency.” ID at 37. The
17
respondent’s numerous arguments on review. PFR File, Tab 9 at 11 -28.
Although we modify the initial decision to supplement the ALJ’s analysis of some
of these factors, we agree with the ALJ that SSA has shown good cause to remove
the respondent.11
¶33 The Board considers first and foremost among the Douglas factors the
seriousness of the misconduct and its relationship to the employee’s position and
duties. Levinson , 2023 MSPB 20 , ¶ 42; Long , 113 M.S.P.R. 190 , ¶ 48. There is
no doubt that conduct unbecoming an ALJ is a serious charge, and the underlyi ng
specifications were very serious. We have considered the respondent’s argument
that, due to her alcohol intoxication on the dates in question, she had no
knowledge of and/or lacked intent to engage in such activity. PFR File, Tab 9
at 12-13; see Douglas , 5 M.S.P.R. at 305 (explaining that one of the
considerations of the Douglas factor involving the nature and seriousness of the
offense is whether the offense was intentional or technical or inadvertent, was
committed maliciously or for gain, or wa s frequently repeated). We have
considered this argument, but it does not change our finding that the sustained
misconduct is very serious.
¶34 The respondent also asserts that the ALJ ignored case law that an
individual’s mental state and medical condition s are relevant in evaluating the
seriousness of the misconduct. PFR File, Tab 9 at 13 (citing Larry v. Department
of Justice , 76 M.S.P.R. 348, 360 (1997), and Bishopp v. Department of the Air
ALJ explained that offering such a position would provide an opportunity for the
respondent to continue her Federal service and address SSA’s concerns regarding
misconduct and the prominence of the ALJ position. Id.
11 In its response to the respondent’s petition for review, SSA raises the possibility that
the Board might find that SSA ALJs are inferior officers, and it asserts that the Board
should defer to SSA’s chosen penalty in this matter. PFR File, Tab 12 at 17 n.4. The
respondent does not raise this issue in her petition for review or reply brief. We need
not substantively address SSA’s argument because we find the proposed removal
proper, regardless of any deference to SSA. See Levinson , 2023 MSPB 20 , ¶ 40 n.7.
18
Force , 75 M.S.P.R. 33 (1997)). However, this argument is not persuasive .
Importantly, neither Mr. Larry nor Ms. Bishopp were ALJs. Moreover, the Board
appears to have considered Ms. Bishopp’s mental state as a mitigating factor, not
as part of its evaluation of the nature and seriousness of the offense. See
Bishopp , 75 M.S.P.R. at 40 (noting that when mental impairment plays a part in
misconduct, it will be given considerable weight as a mitigating factor). We
believe that the better course of action is to consider the respondent’s mental state
and medical conditions in ou r assessment of the mitigating factors. Infra ¶ 37.
¶35 The respondent also contends that the ALJ ignored the fact that she was
only adjudicated guilty of driving under the influence, the ALJ improperly
characterized the misconduct as repeated, and merger of the specifications
supports a finding that the misconduct was less serious. PFR File, Tab 9
at 13-14. These arguments do not warrant a different outcome. Notably, the ALJ
acknowledged that the respondent was only adjudicated guilty of driving under
the influence. ID at 7. However, there were other specifications that the ALJ
sustained, and we have affirmed, related to the charge of conduct unbecoming,
such as providing false or untruthful statements to law enforcement and leaving
the scene of an acc ident. We also discern no error with the ALJ’s
characterization of the misconduct as repeated because, as the respondent
acknowledges, there were two incidents of misconduct that occurred over a
4-month period. PFR File, Tab 9 at 13. Also, the Board has held that the fact
that a charge has been merged into another does not mean that the duplicative
charge is not sustained or that the misconduct somehow becomes less serious by
virtue of the merger. Shiflett v. Department of Justice , 98 M.S.P.R. 289 , ¶ 12
(2005). Consistent with this precedent, we are not persuaded by the respondent’s
argument that merger of the specifications war rants a less serious penalty.
Ultimately, the merged specifications are very serious and relate directly to the
respondent’s honesty, trustworthiness, and judgment.
19
¶36 The ALJ also found that the respondent holds a prominent position as an
ALJ and has an obligation to avoid the appearance of impropriety . ID at 30 -31;
Long , 113 M.S.P.R. 190, ¶ 50. He noted that some claim ants filed complaints in
the U.S. district court alleging that the respondent was incapable of rendering
decisions ; the ALJ concluded that the respondent’s conduct did not promote
confidence in the administrative judiciary, and her actions could, if left
unaddressed, erode public confidence in the judiciary. ID at 30 -31. We
acknowledge that the two claimants were represented by the same representative,
and the complaints against the respondent were ultimately unsuccessful. PFR
File, Tab 9 at 15. Even co nsidering these facts, a different outcome is not
warranted on the evaluation of this Douglas factor.
¶37 We also discern no error with the ALJ’s identification of numerous
mitigating factors in this case. ID at 31, 35. The parties do not appear to dispute
that the respondent suffered from anxiety, post -traumatic stress disorder, and
alcoholism or that her alcoholism, in particular, played a part in the August 17,
2018, and December 2, 2018 incidents. ID at 35. We supplement the initial
decision because ev idence that an employee ’s medical condition s played a part in
the charged conduct is ordinarily entitled to considerable weight as a mitigating
factor , Malloy v. U.S. Postal Service , 578 F.3d 1351 , 1357 (Fed. Cir. 2009);
Bowman v. Small Business Administration , 122 M.S.P.R. 217 , ¶ 13 (2015) , and it
is not clear whether the ALJ gave these conditions such weight. We have
therefore given these conditions considerable weight as a mitigating factor.
¶38 The respondent also generically asserts that the ALJ failed to conduct an
evaluation of witness credibility pursuant to Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987). PFR File, Tab 9 at 37. She explains that the ALJ
“complete ly ignored [her] evidence . . . including testimony by several witnesses
that contradicted testimony from the [a]gency.” Id. However, she fails to
identify a single example when the ALJ “simply deferred” to SSA. Id. In her
reply, however, she explains that this issue arose with SSA managers’
20
“uninformed opinion about various Douglas factors,” including the respondent’s
rehabilitation, her ability to perform the duties of an ALJ, the alleged loss of trust
in the respondent, disparate treatment, and other inconsistencies between the
managers’ testimony and their actions after considerin g the evidence presented by
the respondent. PFR File, Tab 15 at 23.
¶39 We are not persuaded by the respondent’s argument. The Board will not
disturb an adjudicating ALJ’s findings when he considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions on issues of
credibility. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997);
Broughton v. Depar tment of Health and Human Services , 33 M.S.P.R. 357 , 359
(1987). However, even if we assume for the purposes of our analysis that t he
ALJ committed some error and we consider the specific penalty factors identified
by the respondent, a different outcome is not warranted.
¶40 For example, regarding the consistency of the penalty with those imposed
upon other employees for the same or sim ilar offenses, we agree with the ALJ
that the other ALJs did not have additional sustained specifications, which
support a greater sanction against the respondent. ID at 33; see Singh v. U.S.
Postal Service , 2022 MSPB 15 , ¶ 14 (stating that the relevant inquiry is whether
the agency knowingly and unjustifiably treated employees differently) .
¶41 Regarding the effect of the offenses on the respondent’s ability to perform
her duties and the effect on her supervisor’s confidence, the ALJ considered that
the respondent continued with her duties after the first arrest and the testimony of
her first -line supervisor that he would have allowed her to continue working in
the office following the second arrest. ID at 32. The ALJ also noted that the
respondent lost the confidence of other SSA supervisors and managers. Id. We
discern no error with the ALJ’s conclusion on this factor. Indeed, a supervisor’s
opinions are insufficient to overcome SSA’s judgment concerning the seriousness
of the misconduct and the appropriateness of the penalty. Edwards v. Department
21
of the Army , 87 M.S.P.R. 27 , ¶ 9 (2000), aff’d sub nom. Rodri guez v. Department
of the Army , 25 F. App’x 848 (Fed. Cir. 2001).
¶42 Finally, regarding the potential for rehabilitation, we agree with the
respondent that the ALJ seemed to only focus on SSA’s evidence and argument to
support his conclusion that she could not be rehabilitated. ID at 34 -35. However,
the ALJ’s failure to m ention all of the evidence of record does not mean that he
did not consider it in reaching his decision. Marques v. Department of Health
and Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d, 776 F.2d 1062 (Fed.
Cir. 1985) (Table). We have considered the respondent’s evidence, such as her
decis ion to seek treatment after the August 17, 2018 incident, the promptness
with which she informed her supervisors of this incident, her regular updates
regarding her treatment and the status of the criminal cases, and her successful
completion of a 10 -month rehabilitation program. PFR File, Tab 9 at 21 -25; IAF,
Tab 164 at 44 -46. We have also considered the testimony that the respondent’s
risk of relapse due to alcoholism was “extremely low.” HT 6 at 53 -54 (testimony
of L.W.).
¶43 We have considered the resp ondent’s remaining arguments on review
regarding the ALJ’s evaluation of the Douglas factors. Notwithstanding the
mitigating factors that we have considered and the weight which we have
accorded to such factors, we find that the serious nature of the sust ained
misconduct, combined with the prominence of the ALJ position, the respondent’s
frequent interactions with the public, including vulnerable and minority
claimants, and the lack of confidence expressed by SSA managers in the
respondent’s ability to per form her duties, supports the ALJ’s conclusion that
SSA has demonstrated good cause to remove the respondent.
ORDER
¶44 The Board authorizes SSA to remove the respondent for good cause shown,
pursuant to 5 U.S.C. § 7521 . This is the final decision of the Merit Systems
22
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 RIG HTS12
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the ap propriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on whi ch option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immedi ately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
23
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
24
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, cost s, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
25
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’ s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
13 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
26
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COLON_ARLINE_CB_7521_19_0009_T_1_FINAL_ORDER_2064371.pdf | 2023-08-30 | null | CB-7521 | NP |
2,750 | https://www.mspb.gov/decisions/nonprecedential/ROBISON_MARK_R_DA_3443_17_0323_I_1_FINAL_ORDER_2064377.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARK R. ROBISON,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-3443 -17-0323 -I-1
DATE: August 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alisa J. Robison , Luther, Oklahoma, for the appellant.
Captain Justin Edward Boerner , Esquire, and William David Vernon ,
Esquire, Tinker A ir Force Base, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his reassignment for lack of jurisdiction. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
on an erroneous interpretation of statute or regulation or the erroneous a pplication
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 affec ted the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. The refore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 On review, the appellant repeats h is argumen ts that he was hired for a
permanent swing shift position , and he contests his reassignment to a day shift
position, which resulted in the loss of differential pay. Petition for Revie w (PFR)
File, Tab 1 at 3. Although he acknowledges that “management has a right to
reassign employees due to certain reasons such as workload,” he asserts that there
was no such workload justification concerning his reassignment. Id. at 3-4. The
administrative judge properly found that the Board lacks jurisdiction ov er the
appellant’s reassignment and that his alleged loss of differential pay did not meet
the statutory definition of a “reduction in pay” under 5 U.S.C. § 7512 (4). Initial
Appeal File (IAF), Tab 11, In itial Decision (ID) at 3; see Fair v. Department of
Transportation , 4 M.S.P.R. 493 , 495 -96 (1981) (finding that a loss of premium
pay such as a shift differential is not an appealable adverse action) ; see also
5 C.F.R. §§ 752.401 (a)(4), 752.402 (defining “pay” in this context as the rate of
basic pay fixed by law before any deductions and exclusive of additional pay of
any kind) . The appellant stated in his initial appeal that h e had not filed a
whistleblower reprisal complaint with the Office of Special Counsel, and he has
not alleged any facts below or on review that might implicate jurisdiction over an
3
independent right of action appeal. IAF, Tabs 1, 6-7, 9-10; PFR File, Tabs 1, 4;
see 5 U.S.C. §§ 1221 , 2302(b)(8) -(9). Finally, the appellant repeats his
complaints about the method by which the agency reassigned him , the agency’s
alleged failure to issue a Standard Form 50 effecting the reassignment , and the
agency’s alleged failure to address his administrative grievance. PFR F ile, Tab 1
at 3-4, Tab 4 at 4 -5. As stated in the initial decision, to the extent that the
appellant argues that the agency committed harmful procedural error or a
prohibited personnel practice, such claims do not provide an independent basis
for finding Board jurisdiction absent an otherwise appealab le action. ID at 4; see
Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d, 681 F.2d 867 ,
871-73 (D.C. Cir. 1982) ; see also Penna v. U.S. Postal Service , 118 M.S.P.R.
355, ¶ 13 (2012) .
¶3 The appellant submit s certain evidence for the first time on review, namely
email correspondence concerning “dual encumbering ” his current position for
mission -related agency purposes , dated more than 1 month prior to his initial
appeal . PFR File, Tab 4 at 10 -12. He also resubmits the performance plan for the
E3 Aircraft Production Flight Chief -Swing Shi ft position, which he previously
had submitted into the record in response to the administrative judge’s
acknowledg ment order . Id. at 6-9; IAF, Tab 6 at 15 -18. The appellant offers no
explanation why he did not previously submit the email correspondence in any of
his four responses to the acknowledg ment order , and he has failed to show that
the correspondence he submits on review is new or material evidence. See
Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (stating that the
Board generally will not grant a petition for review based on “new” evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision); Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980) (stating that, under 5 C.F.R. § 1201.115 , the Board generally will
not consider evidence subm itted for the first time on review absent a showing that
it was unavailable before the record was closed despite the party’s due diligence).
4
The appellant has provided no argument or facts describing how the emails would
alter the jurisdictional finding i n the initial decision , and we find that they are
immaterial to that threshold issue .
¶4 Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 a ttorney will accept representation in a given 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 tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then yo u must file
with the 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 b e
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess 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.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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 attorn ey 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROBISON_MARK_R_DA_3443_17_0323_I_1_FINAL_ORDER_2064377.pdf | 2023-08-30 | null | DA-3443 | NP |
2,751 | https://www.mspb.gov/decisions/nonprecedential/HARRY_ROBERT_M_DE_1221_20_0383_W_1_REMAND_ORDER_2064385.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT M. HARRY,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DE-1221 -20-0383 -W-1
DATE: August 30, 2023
THIS ORDER IS NONPRECEDENTIAL1
Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant.
Ryan W. Burton , Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a pet ition for review of the initial decision , which
dismissed his individual right of action (IRA) appeal based on the doctrine of
collateral estoppel, in part, and for lack of jurisdiction as to the remaining claims.
For the reasons discussed below, we GRANT the appellant ’s petition for review ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
VACATE the portion of the initial decision dismissing the appeal for lack of
jurisdiction and REMAND the case to the Denver F ield Office for further
adjudication in accordance with this Remand Order. We AFFIRM the
administrative judge’s findings on the collateral estoppel issue.
BACK GROUND
¶2 Effective February 21, 2016, t he appellant was hired as a GS-12 Mining
Engineer with the Bureau of Land Management (BLM) in Billings, Montana .
Harry v. Department of the Interior , MSPB Docket No. DE -1221 -20-0383 -W-1,
Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 4. His appointment was in the
competitive service and was subject to completion of a 1 -year probationary
period . See Harry v. Department of the Interior , MSPB Docket No. DE-315H -17-
0233 -I-1, Initial Appeal File, (023 3 IAF), Tab 6 at 25. On or around February 17,
2017, the appellant was told that he would be terminated from his position during
his probationary period. IAF, Tab 8 at 11. That same day, the appellant signed a
statement agreeing to resign from his position, effective February 24, 2017, in
exchange for the agency agreeing to do the following: refrain from issuing a
notice of decision to terminate; recognizing that the appellant was an “employee ”
as defined un der 5 U.S.C. chapter 75; providing the appellant with a letter of
recommendation; and leaving the “Remarks ” section blank on the Standard Form
(SF) 52 Request for Personnel Actio n memorializing the appellant ’s resignation .
Id. at 11; see 0233 IAF, Tab 6 at 20-24.
¶3 On March 21, 2017, the appellant filed an appeal with the Board alleging
that his resignation was involuntary. 0233 IAF, Tab 1 at 2. After considering the
parties ’ jurisdictional pleadings , the administrative judge issued an initial
decision dismissing that appeal for lack of jurisdiction. 0233 IAF, Tab 15, Initial
Decision (023 3 ID) at 1, 8. In dismissing this prior appeal for lack jurisdiction,
the administrative judge concluded that the agency was entitled to rely on the
appellant ’s stat ement agreeing to resign from his position and therefore had a
3
valid reason for denying his request to withdraw his resignation, and that the
appellant otherwise failed to make a nonfrivolous allegation that his resignation
was the product of misinformatio n, deception, or coercion by the agency. Id.
at 4-8. To the extent the appellant was alleging that his involuntary resignation
was the result of whistleblowing activity, the administrative judge noted that
where allegations of reprisal for whistleblowing are made in connection with a
claim of an involu ntary action, such claims are addressed insofar as they relate to
the issue of voluntariness. Id. at 7 n.5; see 0233 IAF, Tab 11 at 1, 40; Tab 14
at 4, 15 . The administrative judge further noted that if the appellant wished to
pursue an IRA appeal, he mu st first exhaust his administrative remedies with the
Office of Special Counsel (OSC) for such a claim. 023 3 ID at 8 n.6. The
appellant did not file a petition for review in the prior appeal and the decision
became final on June 20, 2017. See id. at 8.
¶4 On August 27, 2020 , the appellant filed the instant IRA appeal alleging that
the agency retaliated against him due to his protected disclosure s or activities
under 5 U.S.C. § 2302 (b), when it removed him and refused to allow him to
withdraw his resignation. IAF, Tab 1 at 7. With his appeal, the appellant
provided a June 25, 2020 close -out letter from OSC , wherein OSC indicated that
it was closing its investigation into his allega tions that he was harassed,
threatened with termination, and forced to resign in retaliation for making
protected disclosures. Id. at 26. The appellant requested a hearing on the matter.
Id. at 2.
¶5 In a scheduling order, the administrative judge noted that there appeared to
be some overlap between the appellant ’s prior appeal challenging his resignation
as involuntary and the instant IRA appeal, noted that the appellant may have
elected to pursue his whistleblower retaliation claims in the prior involun tary
resignation appeal, and ordered him to file evidence and argument explaining why
his appeal should not be dismissed on the grounds that his prior Board appeal
constituted a binding election of remedies regarding his whistleblower retaliation
4
claim s. IAF, Tab 4 at 1-2. The administrative judge subsequently issued a
second order instructing the parties to also address the question of whether the
appeal should be dismissed for lack of jurisdiction on the basis that the appellant
was collaterally estopped from re-raising his whistleblower retaliation claim in
the instant appeal. IAF, Tab 7.
¶6 After an initial round of briefing on the relevant issues, see IAF, Tabs 8,
13-14, and a subsequent round of briefing on the jurisdictional ques tion, see IAF,
Tabs 15-17, without holding the appellant ’s requested hearing, the administrative
judge issued an initial decision dismissing the appeal on basis of collateral
estoppel with respect to some of the appellant ’s claims , and for lack of
jurisdic tion as to the appellant ’s remaining claims . IAF, Tab 20, Initial Decision
(ID) at 1, 13. Regarding the issue of collateral estoppel, the administrative judge
determined that the appellant had previously challenged three of the four
personnel actions in his prior Board appeal, and thus was estopped from
re-raising them in the instant IRA appeal . ID at 5-9.
¶7 With respect to the remaining claims , the administrative judge determined
that the appellant nonfrivolously alleged that the final challenged person nel
action , concerning his claim that the agency altered his performance plan by
setting impossible and unobtainable deadlines, could constitute a significant
change in duties, responsibilities, or working conditions under 5 U.S.C.
§ 2302 (a)(2)(A)(xi i).2 ID at 9. Nevertheless, the administrative judge determined
that the appellant had failed to identify any protected disclosures that prompted
this purportedly retaliatory personnel action . ID at 10-13. Specifically, he
concluded that four of the identified disclosures were not protected because they
2 In so doing, the administrative judge incorrectly identified section 2302(a)(2)(A)(xi)
as the operative provision, relying on a previous version of the relevant statutory
language. See ID at 9 n.8. The statute was subsequently amended with the addition of
a new subsection 2302(a)(2)(A)(xi), and the subsections were renumbered . See
5 U.S.C. § 2302 (a)(2)(A)(xii).
5
only addressed wrongdoing by a private company, as opposed to wrongdoing by
the Government . ID at 10-11; see ID at 6. Regarding the fifth and final
disclosure, the administrative judge determined that the appellant ’s disclosure to
the agency ’s Human Resources (HR) Director of a “hostile work environment ”
and a “deteriorating relationship ” with his Branch Chief constituted only vague
and nonspecific a llegations of wrongdoing or general complaints about his
relationship with his supervisor , and thus did not rise to the level of a
nonfrivolous allegation of a disclosure of the types of wrongdoing described in
section 23020(b)(8). ID at 11-13. Consequently , the administrative judge
determined that the appellant failed to meet his burden of making a nonfrivolous
allegation that he had made a protected disclosure under 5 U.S.C. § 2302 (b)(8),
and therefore failed to establish Board jurisdiction over his IRA appeal . ID at 13.
¶8 The appellant has filed a petition for review challenging the administrative
judge ’s jurisdictional finding s. Petition for Review (PFR) File, Tab 1. The
agency fi led a response to the appellant ’s petition for review , and the appellant
has not filed a reply. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 On review, the appellant argues that the administrative judge erred by
dismissing Personnel Actions 2, 3, and 4 on the basis that he was collaterally
estopped from relitigating those issues because they were litigated in his prior
appeal. PFR File, Tab 1 at 4-6; see ID at 5. The appellant argues that the
administrative judge incorrect ly applied preclusive effect to these claims despite
acknowledging that the appellant had not exhausted his administrative remedies
with OSC prior to raising his whistleblower retaliation claims in the initial
decision in the prior appeal. PFR File, Tab 1 at 4-5; see 0233 ID at 7-8.
Consequently, he argues that the initial decision in the prior appeal was not one
rendered “by a forum with competent jurisdiction ” with respect to his claims, and
that he was entitled to cure the deficiency with respect to these claim s by
6
exhausting his administrative remedies with OSC and filing a Board IRA appeal ,
as he did in the instant appeal. PFR File, Tab 1 at 5-6.
¶10 Alternatively, the appellant argues that only Personnel Actions 3 and 4,
which concerned his involuntary resignation and the agency ’s refusal to allow
him to withdraw his resignation, respectively, were addressed in his prior appeal.
PFR File, Tab 1 at 6; see ID at 5. He argues that Personnel Action 2, which
concerned his threatened terminati on, was mentioned in the prior appeal , but the
issue was not analyzed by the administrative judge in the initial decision in the
prior appeal so he should not be collaterally estopped from litigating that issue in
his current IRA appeal. PFR File, Tab 1 at 6; see ID at 5.
¶11 Finally, the appellant argues that the administrative judge erred in
concluding that he failed to nonfrivolously allege that he made any protected
disclosures because four of the disclosures concerned wrongdoing by a private
company as opposed to wrongdoing by the Government , and thus were not
protected under section 2302(b)(8). PFR File, Tab 1 at 6-9. He argues that
nothing in the language of the Civil Service Reform Act of 1978 limits prot ected
disclosures of wrongdoing to only those acts committed by Government actors ,
and instead that the Act contemplates within its coverage wrongdoing by
nongovernment al actors such as contractors and other private entities. Id. at 7-8.
He also asserts that the Board case the administrative judge relied on to support
his finding that section 2302(b)(8) protects only disclosures of wrongdoing by the
Government is inapposite and does not support the stated proposition. Id. at 8-9.
The appellant is collaterally estopped from relitigating some of his claims in the
instant appeal.
¶12 Under the doctrine of collateral estoppel, or issue preclusion, once an
adjudicatory body has decided a factual or legal issue necessary to its judgment,
that decision may preclude relitigation of the issue in a case concerning a
different cause of action involving a party to the initial case. Hau v. Department
of Hom eland Security , 123 M.S.P.R. 620 , ¶ 13 (2016), aff’d sub nom. Bryant v.
7
Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017). Collateral
estoppel is applicable when the fol lowing conditions are met: (1) the issue is
identical to that in volved in the prior action; (2) the issue was actually lit igated in
the prior action; (3) the determination of the issue in the prior action was
necessary to the res ulting judgment; and (4) the party against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, ei ther as a party to the earlier action or as one whose interests were
otherwise fully represented in that action. Id. Before a party can invoke
collateral estoppel, the legal matter raised in the subsequent proceeding must
involve the same set of events o r documents and the same “bundle of legal
principles ” that contributed to the rendering of the first judgment. Tanner v. U.S.
Postal Service , 94 M.S.P.R. 417, ¶ 11 (2003). In determining whether an issue is
identical for collateral estoppel purposes, differences precluding the application
of collateral estoppel may be in facts, subject matter, periods of time, case law,
statutes, procedural protections, notions of public interest, or qualifications of
tribunals. Id. The Board has also held that collateral estoppel may bar a party
from relitigating an issue in a second action even when the prior appeal was
dismissed for lack of ju risdiction . See, e.g. , Coats v. U.S. Postal Service ,
111 M.S.P.R. 268 , ¶ 8 (2009); Noble v. U.S. Postal Service , 93 M.S.P.R. 693, ¶ 8
(2003).
¶13 In concluding that the appellant was collaterally estopped from re -raising
three of the challenged personnel actions that made up a part of his whistleblower
retaliation claim in his prior appeal , the administrative judge determined the
following: (1) the appellant had r aised the issue of his February 2017 pro posed
termination, his February 24, 2017 involuntary resignation, and the agency ’s
February 23, 2017 refusal to allow him to withdraw his resignation in his prior
Board appeal ; (2) these issues were actually litigated in the prior appeal ; (3) the
determination concerning these issues was necessary to the res ulting judgment in
that prior appeal , and (4) the appellant had a full and fair opportunity to litigate
8
these issues in the prior appeal . ID at 8-9. Consequently, he determined that the
criteria for application of collateral estoppel were met with respec t to these
claims. ID at 9 (citing McNeil v. Department of Defense , 100 M.S.P.R. 146, ¶ 15
(2005); Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 336–37 (1995)).
¶14 We agree. Regarding the first element of the test described in Hau, it is
undisputed that the dispositive issue in the appellant ’s prior appeal concerned the
voluntariness of his February 17, 2017 decision to resign from his position,
effective February 24, 2017. 023 3 ID at 5-8. As a part of analyzing the
voluntariness of the appellant ’s decision to resign, the administrative judge
considered the effect “the anticipated adverse action ” (that is, the appellant ’s
proposed termination ) may have had on his decision to resign, but nevertheless
concluded that choosing between the unpleasant alternatives of resigning or
facing the potential pending action , did not render his decision to resign
involuntary . 023 3 ID at 6-8. The administrative judge also considered what
effect, if any, the agency ’s refusal to allow him to withdraw his agreement to
resign may have had on the voluntariness of his resignation, but concluded that
because the appellant had agreed to resign as a part of a valid settlement
agreement, the agency was within its rights to refuse to accept his withdrawal
request, and thus the refusal also could not have had an effect on the
voluntariness of the appellant ’s decision to resign. 023 3 ID at 4-5.
¶15 Additionally, t he administrative judge specifically considered each of these
allegations in the context of assessing the voluntarin ess of the appellant ’s
decision to resign, so each of these issues was also actually litigated in the prior
appeal , and a determination as to these issues was necessary to the resulting
judgment , fulfilling the second and third elements of the test. Hau, 123 M.S.P.R.
620, ¶ 13; see ID at 6-8. Finally , althoug h the appellant appeared pro se in his
prior Board appeal, he submitted a numb er of pleadings on his own behalf and
otherwise had a full and fair opportunity to litigate the jurisdictional issue in the
earlier appeal , fulfilling the final element of the test . See 0233 IAF , Tabs 1, 4,
9
11-12, 14 ; McNeil , 100 M.S.P.R. 146, ¶¶ 13-15 (noting that the fourth element of
collateral estoppel does not require that the appellant have been represented in the
earlier action, but instead requires that the appellant had a full and fair
opportunity to litigate the issue); Fisher v. Department of Defense , 64 M.S.P.R.
509, 515 (1994) (same) .
¶16 We also give no credence to the appellant ’s argument on review that he
should not be collaterally estopped from re -raising his whistleblower retaliation
claims in the instant appeal because pro se litigants , like the appellant was in his
prior appeal , regularly prematurely file IRA appeals before exhausting their
administrative remedies with OSC, and in such instances the Board often
dismisses the appeal and allow s the party to refile the appeal after exhausting
their administrative remedies with OSC . PFR File, Tab 1 at 5-6. Dismissal of an
appeal in the circumstances describe d by the appellant is a dismissal for failure to
prove exhaustion , which is a thres hold determination . See Carney v. Department
of Veterans Affairs , 121 M.S.P.R. 446, ¶¶ 4-5 (2014) (stating that the first
element to Board jurisdiction over an IRA appeal is exhaustion by the appellant
of his administrative remedies before OSC and that the next requirement is that
the appellant nonfrivolously allege that he made a made a protected disclosure or
engaged in protected activity) . In the prior appeal in this case , by contrast, the
appellant specifically raised the challenged actions as necessary component s to
his claim that his resignation was involuntary, and the administrative judge made
findings concerning each of the challenged actions as a part of his determination
that the appellant failed to nonfrivolously allege that his resignation was
involuntary . 0233 ID at 4-8; see 0233 IAF , Tabs 4, 11. Having received a
determination as to each of those issues in the prior initial decision, the appellant
is now seeking to relitigate those same issues in his IRA appeal, which the
administrative judge correctly determined that he is e stopped from doing.
¶17 Accordingly, we find that the administrative judge properly determined t hat
the appellant was collaterally estopped from challenging Personnel Actions 2, 3,
10
and 4, concerning his proposed termination, his involuntary resignation, and the
agency ’s refusal to allow him to withdraw his resignation agreement , in the
instant appeal .
The appellant established Board jurisdiction over some of the remaining claims in
his IRA appeal.
¶18 We now turn to consideration of the portion of the appellant ’s appeal that
the administrative judge determined he was not collaterally estopped from
re-litigating in the instant appeal, which include s his claim that in reprisal for his
five protected disclosures , agency officials subjected him to a significant change
in his duties, responsibilities, and working conditions by setting impossible and
unobtai nable deadlines and by altering his performance plan in an onerous
manner . IAF, Tab 8 at 14; see ID at 9.
¶19 To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence3 that he exhausted his remedies before OSC . He must al so
make nonfrivolou s allegations of the following: (1) he made a disclosure
described under 5 U.S.C. § 2302 (b)(8) or engaged in a protected acti vity
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 p ersonnel action as defined by 5 U.S.C. § 2302 (a).
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417 , ¶ 8 (2016). The
Board’s regulations define a nonfrivolous allegation as an assertion that, if
proven, could es tablish the matter at issue. 5 C.F.R. § 1201.4 (s).4 As t he
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 The regulation further provides that an allegation generally will be considered
nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation
that: (1) is more than conclusory; (2) is plausible on i ts face; and (3) is material to the
legal issues in the appeal. Id. Pro forma allegations are insufficient to meet the
nonfrivolous standard. Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶ 6 (2016),
11
U.S. Court of Appeals for the Federal Circuit explained in Hessami v. Merit
Systems Protection Board , 979 F.3d 1362 , 1364, 1369 (Fed. Cir. 2020) :5 “[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 pl ausible on its face. ” Any doubt or
ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in fav or of affording the appellant a hearing .
Grimes v. Department of the Navy , 96 M.S.P.R. 595 , ¶ 12 (2004). Whether the
appel lant’s allegations can be proven on the merits is not part of the jurisdictional
inquiry. Lane v. Department of Homeland Security , 115 M.S.P.R. 342 ,
¶ 12 (2010).
¶20 A disclosure protected under section 2302(b)(8) is one which an employee
reasonably believes evidences any violation of any law, rule, or regulation, or
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Mudd v. Department of
Veterans Affairs , 120 M.S.P.R. 365 , ¶ 5 & n.3 (2013) ; see 5 U.S.C. § 2302 (b)(8).
The proper test for determining whether an employee had a reasonable belief that
his disclosures were protected is whether a disinterested observer with knowledg e
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
aff’d , 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 .
5 Historically, the Board has been bound by the precedent of the Federal Circuit on
these types of whi stleblower issues. However, pursuant to the All Circuit Review Act ,
Pub. L. No. 115 -195, appellants may file petitions for judicial review of Board
decisions in whistleblower reprisal cases with any circuit court of appeals of competent
jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). Therefore, we must consider these issues
with the view that the appellant may seek review of this decision before any appropriate
court of appeal.
12
5 U.S.C. § 2302 (b)(8). Mudd , 120 M.S.P.R. 365 , ¶ 5. The disclosures must be
specific and detailed, not vague allegations of wrongdoing. Salerno v.
Department of the Interior , 123 M.S.P.R. 230 , ¶ 6 (2016). In determining
whether an appellant has made a nonfrivolous allegation of a disclosure, t he
Board will consider matters incorporated by reference, matters integral to the
appellant ’s claim, and matters of public record. See Hessami , 979 F.3d
at 1369 n.5.
The appellant exhausted his administrative remedies with OSC regarding
four of his purported disclosures and the single remaining
personnel action .
¶21 Under 5 U.S.C. § 1214 (a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board. Mason v.
Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 8 (2011). The Board, in
Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶¶ 10-11, clarified
the substantive requirements of exhaustion. The requirements are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
The Board’s jurisdiction is limited to those issues that previous ly have been
raised with OSC. However, appellants may give a more detailed account of their
whistleblowing activities before the Board than they did to OSC. Appellants may
demonstrate exhaustion through their initial 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. Appellants also
may establish exha ustion 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. With his jurisdictional pleadings, the appellant
provided a copy of his sub mitted OSC complaint, which includes his sworn
declaration and corr espondences with OSC. IAF, Tab 8 at 33-68. He also
provides a copy of OSC ’s close -out letter . Id. at 87.
13
¶22 In his jurisdictional filings , the appellant identified his protected disclosur es
as follows:
1. In the summer of 2016, he complained to various agency officials
concerning Private Company 1’s (PC 1) failure to maintain a proper
Resource Recovery and Protection Plan (R2P2) in violation of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA)
(30 U.S.C. § 1201 , et seq. ) and the Minera l Leasing Act of 1920 (MLA)
(30 U.S. C. § 181, et seq. );
2. During the period from October 2016 through January 2017 , he
complained to various agency officials that PC 1 was responsible for a
spoil pile slide , caus ing a potential danger to public health and safety, a
significant loss of revenue to the Federal Government , and potential
violation s of 43 C.F.R. § 3481.1 (c) and 30 C.F.R. § 77.1000 ;
3. He disclosed to his first -line supervisor in November 2016 that
the Mine Safety and Health Administration (MSHA) needed to conduct
an investigation into the source of the spoil pil e slide discussed in
Disclosure 2, and he disclosed the need to conduct an i nvestigation into
the slide to an MSHA in spector in mid to late -November 20166;
4. In a December 15, 2016 memorandum to his first and second -line
supervisors, he disclosed his belief that, during a call with a
representative of PC 1’s parent company , the rep resentative made “an
illegal and unethical attempt to influence the outcome or stop the spoil
slide investigation ”; and
5. At some time after December 21, 2016, he disclosed to the
agency ’s HR Director that his relationship with his supervisors had
deteriora ted and that he was being subjected to a hostile work
environment by agency officials following his disclosure in the
December 15, 2016 memorandum.
Tab 16 at 4-7; see IAF, Tab 8 at 13-14.
¶23 In the initial decision, the administrative judge did not make any specific
findings concerning which, if any, of the purported disclosures the appellant
exhausted with OSC. Nevertheless, o n petition for review the appellant does not
challenge the administrative judge ’s finding that Disclosure 5 was not protected
6 The appellant identi fies the date of this purported disclosure as “mid to late November
2014,” but it is clear based on the context that the intended date is mid -to
late-November 2016. See IAF, Tab 16 at 5-6.
14
because it was “vague and lacking in specifics ” and did not identify any of the
type s of wrongdoing described in section 2302(b)(8) . See PFR File, Tab 1 at 6-9.
Instead , the appellant alleges only that the administrative judge erred in
concluding that Discl osures 1-4 were not protected because they only disclosed
wrongdoing by a nongovernment al entity, as opposed to wrongdoing by the
Government . PFR File, Tab 1 at 6-9. Accordingly, we limit our review here to
Disclosures 1-4.
¶24 In the sworn declaration the appellant provided to OSC with his complaint ,
he specifically identifies his complaint about PC 1’s failure to maintain an
updated and approved R2P2 starting in May or June of 2016 (Disclosure 1), his
complaint s about the agency ’s handling of its invest igation into PC 1’s role in the
spoil pile slide starting in early October 2016 (Disclosure 2), his efforts to get
MSHA to investigate PC 1’s role in the spoil pile slide in late November 2016
(Disclosure 3), and his December 15, 2016 memorandum describin g PC 1’s
unlawful attempts to influence the investigation into t he spoil pile slide
(Disclosure 4). IAF, Tab 8 at 48-62. The appellant also provided OSC with a
copy of the memorandum described in Disclosure 4. See id. at 62; IAF, Tab 16
at 8-9. Although OSC ’s close -out letter does not specifically identify the nature
of the disclosures it investigated, see IAF, Tab 8 at 87, we nevertheless find that
the appellant proved by preponderant evidence that he exhausted his
administrative remedies with OSC regarding Disclosures 1-4.
¶25 With respect to the single remaining personnel action —the appellant ’s
allegation that agency officials changed his work duties by altering his
performance plan by setting impossible and unobtainable hard dates and fixed
deadlines for tasks that previously did not have fixed dates , and by otherwise
harassing him —the administrative judge determined that the appellant
nonfrivolously alleged that this constituted a significant change in the appellant ’s
duties and/or responsibilities, and thus constituted a personnel action under
15
5 U.S.C. § 2302 (a)(2)(A)(xii). ID at 9 n.8; see IAF, Tab 8 at 10-11, 14 -15;
Tab 16 at 6-7.
¶26 The Board has found tha t the creation of a hostile work environment may
constitute a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(xii) to the extent
that is represents a significant change in duties, responsibilities, or working
conditions. See Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 23
(2015). To meet this standard, an agency ’s actions must, individually or
collectively, have practical and significant effects on the overall nature and
quality of an employee ’s working conditions, duties, or responsibilities. Skarada
v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16. In determining whether
a hostile work environment is present, the Board will consider the totality of t he
circumstances, including agency actions that may not individually rise to the level
of a personnel action. Id., ¶ 18.
¶27 Employees are not guaranteed a stress -free work environment, and the
appellant ’s general assertion that he was “harassed ” by agency officials would
not, alone, suffice to rise to the level of a significant change in working
conditions. See Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 32 (2000)
(explaining that an employee is not guaranteed a working environment free of
stress) . However, the appellant ’s specific allegation that the nature of his work
and his ability to meet workload demands changed after his first -level supervisor
set fixed deadlines where none previously existed, does relate directly to a change
in duties, responsibilities, and working conditions as contemplated by 5 U.S.C.
§ 2302 (a)(2)(A)(xii). Specifically, the appellant alleged that although the fiscal
year 2017 performance period official ly began on October 1, 2016, his first-level
supervisor did not provide him with a performance plan until well into the
performance period, o n December 21, 2016 (which the appellant states was a few
days after one of his purported disclosures, and around the same time that he
allege s his supervisor began harassing him about the spoil pile slide
investigation) , leaving him without any goals or g uidance on what he was
16
supposed to achieve during a large portion of the performance rating period. IAF,
Tab 8 at 10, 14; Tab 16 at 7. He further alleges that t he performance plan he was
provided on December 21, 2016 identified impossible to meet hard deadlines ,
even though no such hard deadlines had been assigned in the past, and even
though no other employee in the office was subjected to similar hard deadlines.
IAF, Tab 8 at 10.
¶28 Construing the appellant ’s jurisdictional pleading s in the most favor able
possible light , we find that he provided adequate substance to support his claim
that the change in his performance plan and the harassment by his first -level
supervisor significantly changed his job duties in a manner that would have a
practical and significant effect on the overall nature and quality of his duties,
responsibilities, and working conditions. See Skarada , 2022 MSPB 17 , ¶ 16.
Accordingly, we find that he made a nonfrivolous allegation that he was subjected
to a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(xii). Moreo ver, insofar as
the appellant provided documentation demonstrating that he raised this allegation
with OSC, we also find that he showed that he exhausted his administrative
remedies with respect to this claim. See IAF, Tab 8 at 43, 62 -63.
The administrative judge erred in determining that Disclosures 1-4 were
categorically unprotected because they involved the disclosure of
wrongdoing by a private company as opposed to wrongdoing by
the Government.
¶29 The administrative judge ’s determination that a disclosure is only protected
under 5 U.S.C. § 2302 (b)(8) if it concerns alleged wrongdoing by the Government
is not supported by the relevant case law. See ID at 10-11. In reaching this
determination, the administrative judge relied on language from the Federal
Circuit ’s decision in Giove v. Department of Transportation , 230 F.3d 1333 , 1338
(Fed. Cir. 2000) , as cited in Young v. Merit Systems Protection Board , 961 F.3d
1323 , 1328 (Fed. Cir. 2020) . ID at 10-11. As the appellant correctly notes on
review, the language the administrative judge cites from Giove merely sets out
the test for determining whether a disinterested observer ’s belief that he is
17
disclosing a ctivity protected under section 2302(b)(8) is reasonable, and says
nothing about whether wrongdoing by a non government al entity is categorically
unprotected. PFR File, Tab 1 at 7-9; see Giove , 230 F.3d at 1338 .
¶30 Instead, t he Board has held that disclosures of wrongdoing by
nongovernment al entit ies may constitute protected disclosures when the
Government ’s reputation, interests , and good name are implicated in the alleged
wrongdoing , and the employee shows that he reasonably believed that the
information he disclosed evidenced that wrongdoing. See Voorhis v. Department
of Homeland Security , 116 M.S.P.R. 538, ¶ 30 (2011) (stating that disclosures
may be protected if they “implicate the reputation and good name of the [F]ederal
[G]overnment ”), aff’d, 474 F. App ’x 778 (Fed. Cir. 2012); Miller v. Department
of Homeland Security , 99 M.S.P.R. 175 , ¶¶ 12-13 (2005) (finding that the
appellant ’s disclosure regarding alleged wrongdoing by state Government
officials was protected because the state and Federal agencies were engaged in a
joint operation, and the alleged misconduct by the state employees as part of that
joint operation imp licated the Federal Government ’s interests and good name);
Johnson v. Department of Health and Human Services , 93 M.S.P.R. 38 , ¶¶ 10-11
(2002) (finding that the Government ’s interests and reputation were implicated by
the appellant ’s disclosure that agency officials ignored contract violations and
irregularities that cost the Government thousands of dollars and ignored a
contractor ’s hiring of undocumented aliens); Arauz v. Department of Justice ,
89 M.S.P.R. 529 , ¶ 7 (2001) (finding that the appellant ’s disclosure regarding
alleged wrongdoing by a private organization was protected when it performed
functions related to the agency ’s outreach program and the agency was in a
position to influence or exercise oversight over the organization ’s performance of
those funct ions, such that the Government ’s interests and g ood name were
implicated in the wrongdoing).
¶31 Accordingly, we conclude that the administrative judge erred when he
determined that Disclosures 1-4 were categorically unprotected because they
18
involved the disclosure of wrongdoing by a private company as opposed to
wrongdoing by the Government . See ID at 9-11. We turn now to review each of
the appellant ’s purported disclosures to consider whether they alleged
wrongdoing by a non government al entity that nevert heless implicated the
Government ’s reputation, interest , and good name, and whether the appellant
could have reasonably believed that the information h e was disclosing evidenced
that wrongdoing.
i. Disclosure 1
¶32 As p reviously discussed, Disclosure 1 concerned the appellant ’s complaints
to agency officials concerning PC 1’s failure to maintain a proper R2P27 in
violation of the SMCR A (codified at 30 U.S.C. § 1201 , et seq. ) and the MLA
(codifie d at 30 U.S.C. § 181, et seq. ). IAF, Tab 8 at 13-14; Tab 16 at 4-7. In
concluding that this disclosure was unprotected because it evidenced wrongdoing
only by PC 1 and not by the Government , the administrative judge appears to
have concluded that, because it was PC 1’s obligation to maintain a copy of its
most recent R2P 2 on-site at its mining location, its failure to do so only
constituted wrongdoing on its own part . ID at 11 (citing Young , 961 F.3d
at 1328 ). However, this represents an unduly narrow reading of the appellant ’s
allegations contained in Disclosure 1.
¶33 In describing the nature of Disclosure 1, the appellant alleged that agency
officials , including his first -line supervisor , gave p referential treatment to PC 1
by allowing them to replace a lost R2P2 in a manner inconsistent with agency
policy and with Federal laws and regulations. Id. at 51-57. Specifically, h e
alleges that after he was assigned to investigate PC 1’s request to by pass a coal
7 The appellant describes an R2P2 as “a plan that shows proposed operations that meet
statutory requirements for mine extraction, ” and notes that R2P2s must be submitted to
and approved by BLM before any coal extraction operations can be commenced,
pursuant to 43 C.F.R. §§ 3480.0 -5(34) and 3482.1(b). IAF, Tab 8 at 49.
19
seam8 for economic reasons in March 2016, he found irregularities in the
financial and cost data PC 1 initially provided to him , so he attempted to obtain
the agency ’s copy of the original R2P2 from the storage vault. Id. at 52-53.
After failing to find the agency ’s copy of the R2P2 , he requested a copy directly
from PC 1 on the recommendation of his first -level supervisor, which PC 1 was
unable to produce. Id. at 53. After additional unsuccessful attempts to obtain
PC 1’s original copy of the R2P2, t he appellant proposed that the agency issue
PC 1 a letter of noncompliance regarding its failure to maintain the original
R2P2, but his first-line supervisor directed him not to do so and to work with
PC 1 instead . Id. at 54. Shortly therea fter, PC 1 hired a consultant who
generated and submitted a new R2P2 in June 2016, which was subsequently
approved in July 2016. Id.
¶34 The appellant allege d that by allowing PC 1 to generate a new R2P2 when
they could not find the origin al and most current R2P2 in May 2016 , and later
approving the bypass request based on this new R2P2, his first -line supervisor
violated agency policies and Federal laws and regulations , including
section 523(a) and 523(c) of the SMCRA , which govern s the nondelegation of
mining plan approvals on Federa l lands, and 43 C.F.R. § 3482.1 (c)(7), which sets
out the requirements for how a bypass request should be reviewed and approved
by authorizing officers. Id. at 43, 54-56. The appellant also noted that his
first-line supervisor informed him that PC 1 had previously threatened to call its
Congressional representative in response to agency actions in the past, alleged
that the agency ’s preferential treatment toward PC 1 was the result of “a
management philosophy and decision -making that favored [ PC 1],” and asserted
that the actions described may represent a case of “regulatory capture ,” which he
8 The appellant describes a “bypass ” as an exemption that “allows an operator not to
mine a seam of coal that is covered in the most currently approved R2P2 due to changed
geological or economic conditions. ” IAF, Tab 8 at 52 (citing 43 C.F.R. § 3482.2 (b)(2)).
20
define d as a circumstance where “regula tory agencies may come to be dominated
by the industries or interests they are charged with regulating. ” Id. at 51-52.
¶35 In Arauz , 89 M.S.P.R. 529 , ¶¶ 6-7, the Board found that the appellant ’s
disclosure that a private organization operating under a Federal outreach program
had violated state voter registration laws , fell within the Whistleblower Protection
Act of 1989 because “the essence of those disclosures was that the [G]overnment
program under which the private organization was operating was being used to
facilitate wrongdoing . . . [and] if this alleged wrongdoing were allowed to
continue, the agency could be viewed as an accessory to the wrongdoing . . . and
[] the [G]overnment’ s interests and reputation therefore were implicated in the
alleged wrongdoing. ” See Covington v. Department of the Interior , 2023 MSPB
5, ¶¶ 8-9 (finding that the Whistleblower Protection Enhancement Act of 2012
(WPEA) did not change the longstanding principle that a disclosure of
wrongdoing committed by a non -Federal Government entity may be protected
only when the Federal Government ’s interests and good name are implicated in
the alleged wrongdoing) . Similarly , in the instant case, although the crux of the
appellant ’s allegation s in Disclosure 1 concern PC 1’s wrongdoing based on its
failure to maintain an original copy of its R2P2, the appellant also allege s that
agency officials intentionally turned a blind eye to PC 1’s wrongdoing by denying
his request to issue a notice of noncompliance concerning the R2P2 and by
eventually approving the bypass request based on a new R2P2 due, in part, to the
agency ’s close relationship with PC 1. Given the investi gatory and oversight
functions the agency exercised over PC 1, the perception that the agency was
neglecting to fulfill its statutory functions because of its favorable relationship
with PC 1 could call into question the Government ’s interest and reputatio n, and
therefore implicate the Government in the alleged wrongdoing. As such, in
Disclosure 1, the appellant alleged wrongdoing by a nongovernmental entity that
nevertheless implicated the Government’s reputation, interest, and good name,
and therefore it is not precluded from consideration as a protected disclosure on
21
that basis . Because of the administrative judge’s contrary finding, he did not
consider whether Disclosure 1 otherwise met the requirements of a nonfrivolous
allegation of retaliation for whistleblowing.
¶36 Considering the appellant ’s professional expertise in this area and the fact
that at the jur isdictional stage, an appellant need only provide sufficient
specificity and substantiality to support a reasonable belief that he disclosed
evidence of one of the categories of wrongdoing described in section 2302(b)(8),
we conclude that he could have rea sonably believed that he was disclosing
wrongdoing that implicated the Government ’s interests and good nam e when he
disclosed that PC 1 failed to maintain an original R2P2 in May 2016 , but was
nevertheless permitted to resubmit a new R2P2 and was later gr anted a bypass
request based on that R2P2, in violation of Federal laws and regulations . See
Embree v. Department of the Treasury , 70 M.S.P.R. 79 , 85 (1996) (considering
the appellant ’s asserted subject matter expertise in finding that she made a
nonfrivolous a llegation of gross mismanagement) ; Van Ee v. Environmental
Protection Agency , 64 M.S.P.R. 693 , 698 (1994) (considering the appellant ’s
expertise in finding that she made a nonfrivolous allegation of a gross waste of
funds). Consequently, we conclude that the appellant made a nonfrivolous
allegation that he disclosed a violation of law or regulation in connection with
Disclosure 1.
ii. Disclosure 2
¶37 For Disclosure 2 the appellant alleges that during the period from
October 2016 through January 2017, he complained to agency officials
concerning PC 1’s role in causing a spoil pile slide that resulted in 180,000 tons
of Federally -owned coal being rendered unrecoverable, caused a loss of
approximately $900,000 in revenue to the Federal Governmen t, endangered
public health and safety, and potentially constituted a violation of 43 C.F.R.
§ 3481.1 (c) and 30 C.F.R. § 77.1000 . IAF, Tab 8 at 8, 13-14; Tab 16 at 5. The
administrative judge determined that this disclosure was unprotected because it
22
represented an allegation of wrongdoing by PC 1 and not by the Government ,
again citing the Board ’s decision in Young . ID at 11.
¶38 As described by t he appellant , a “spoil pile ” as “a pile of debris that is
generated from removing the ground over the coal seam. ” IAF, Tab 8 at 8. After
removal, the waste debris is piled up next to the area being mined , and if
improperly maintained by the min ing company , the material in the debris pile can
spill or “slide, ” causing damage and /or injury. Id. at 8, 57 n.1. However, sp oil
pile slides do not exclusively occur due to negligence, and can also be triggered
by seismic activity from blasting or by significant rainfall event s. Id. at 58-59.
After being informed that a spoil pile slide occurred at PC 1’s mining operation
site in early October 2016, the appellant sought to investigate the source of the
slide in order to determine whether it was the result of PC 1’s negligence, because
if PC 1 was at fault for the slide it could be liable for lost royalties owed to the
Federal G overnment, pursuant to 43 C.F.R. § 3480.0 -1, et seq. and 43 C.F.R.
§ 3481.1 (c). Id. at 58.
¶39 After receiving initial reports indicating that PC 1’s actions may have
contributed to the spoil pile slide , the appellant requested authorization to
investigate the matter, but he was informed that BLM did not have the expertise
to investigate the slide and his request to hire an outside consultant was denied .
Id. at 59. Instead, it was decided that the appellant would reach out to a different
Federal or state agency to assist with the investigation. Id. The appellant
eventually contacted the Mine Safe ty and Health Administration (MSHA) within
the Department of Labor , which is the agency that approved PC 1’s ground
control plan and was responsible for enforcing compliance with mandatory safety
and health standards, and thus was the agency properly tasked with completing
the spoil slide investigation . Id. at 59-62. During a subsequent conference call
between the appellant, his first line supervisor , and representatives of MSHA, it
was agreed that MSHA would conduct the spoil pile slide investigatio n and that
the appellant should not be involved in the investigation. Id. at 62.
23
¶40 On January 10, 2017, an MSHA representative emailed the appellant the
results of its investigation, which concluded that PC 1 was in compliance with its
ground control plan and was not directly responsible for the spoil pile slide. Id.
at 64. The appellant disputed the findings, concluding that the analysis was
incomplete and based on erroneous assumptions , and raised his concerns with his
first-line supervisor , who informed him that BLM was out of options with respect
to investigating the spoil pile slide . Id. The supervisor subsequently directed the
appellant to issue a letter to PC 1 stating that BLM would not be holding them
financially accountable for the lost coal royalties that resulted from the spoil pile
slide. Id. Because the appellant disagreed with this determination, he was
permitted to revise the letter to make it clear that “it was MHSA that made the
call to absolve [ PC 1] of responsibility instead of the BLM. ” Id.
¶41 Based on our review of the appellant ’s jurisdictional pleadings , we conclude
that he has failed to make a nonfrivo lous allegation that Disclosure 2 was
protected because he has not explained how his belief that PC 1 was at fault for
the spoil pile slide implicated the Government ’s reputation, interest, and good
name. As described in detail above, t he appellant ’s own submissions reflect that
MSHA was the agency tasked with completing the spoil slide investigation, not
BLM, and BLM ’s only interest concerned the recovery of lost royalties due to the
Federal government in the event that PC 1 was determined to be responsible for
the spoil pile slide. IAF, Tab 8 at 57-62. Because , by the appellant ’s own
admission, BLM had no role i n assessing fault for the spoil pile slide , the
agency ’s subsequent failure to pursue damages for lost royalties from PC 1 could
not have reflected poorly on the Government ’s reputation, interest, and good
name. Although the appellant may have had sincere disagreements with the
determination reached by MSHA , because BLM had no role in conducting the
investigation, the finding absolving PC 1 of fault and the manner in which it was
reached could not have negatively reflected on the Government ’s reputation,
interest, and good name.
24
¶42 For the foregoing reason , we conclude that the appellant has failed to show
that Disclosure 2 contains any allegation of wrongdoing by the Government, and
instead merely reflect ed his personal or philosophical disagreement with the
determination by MSHA that PC 1 was not at fault for the pile slide .9 See Webb
v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 8 (2015) (noting that even
under the expanded protections afforded to whistleblowers under the WPEA ,
general philosophical or 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)); see 5 U.S.C.
§ 2302 (a)(2)(D). Accordingly, we agree with the administrative judge ’s
conclusion that the appellant failed to nonfrivolously allege that he made a
protected disclo sure with respect to Disclosure 2, as modified here to supplement
the analysis regarding this disclosure.
iii. Disclosure 3
¶43 Disclosure 3 also concerned the spoil slide investigation, but related to the
appellant ’s efforts to get MSHA involved in investigating the source of the slide.
Specifically, the appellant alleges that he disclosed the need to involve MSHA in
the investigation to his first-line supervisor in November 2016, and disclosed to
MSHA representatives directly that they needed to investigate the slide in
late-November 2016. IAF, Tab 8 at 60-61. For the reasons addressed in greater
detail above , we also conclude that the appellant failed to nonfrivolously allege
that he made a protected disclo sure with respect to Disclosure 3 because he failed
to show that he reasonably believed that he was disclosing wrongdoing that
implicated the Government ’s reputation, interests , and g ood nam e in connection
9 We note that the provision the appellant identifies that he believed PC 1 violated in
connectio n with the spoil pile slide, 30 C.F.R. § 77.1000 , is promulgated within
MSHA ’s regulations, not BLM ’s, further supporting the conclusion that the appellant ’s
objections represented a pol icy disagreement over which BLM had no authority. See
IAF, Tab 8 at 13, 60 -61.
25
with this purported disclosure. The appellant does not allege and there is no
indication that anyone at BLM was authorized to instruct or direct MSHA to
conduct the investigation into PC 1’s role in the spoil pile slide. As with
Disclosure 2, because the appellant acknowledges that BLM appropriately did not
play a role in the determination of PC 1’s fault for the spoil pile slide, any
inaction by BLM against PC 1 could not have reflected poorly on the Government
or implicated the Go vernment ’s reputation, interests, and good name. Cf.
Covington , 2023 MSPB 5 , ¶¶ 7-9 (finding that the appellant ’s disclosures
regarding alleged wrongdoing by the Navajo Nation, a non -Federal Government
entity, were not protected because the Government ’s good name and interests
were not implicated). Consequently, we agree with the administrative judge ’s
determinatio n that the appellant failed to nonfrivolously allege that he made a
protected disclosur e in connection with Disclosure 3.10
10 Although unaddressed in the initial decision, the appellant separately alleged that his
communication to MSHA requesting their involvement in the spoil slide investigation
constituted protected activity under 5 U.S.C. § 2302 (b)(9)(C), because he was
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal i nvestigation or review) of an agency.” IAF, Tab 16
at 5 (quoting 5 U.S.C. § 2302 (b)(9)(C)). The statutory language cited by the appellant
was added to section 2302(b)(9)(C) as a part of the Natio nal Defense Authorization Act
for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, which was signed
into law on December 12, 2017. The NDAA amended 5 U.S.C. § 2302 (b)(9)(C) to
provide protections for individuals who cooperate with or disclose information to the
Inspector General “or any other component responsible for internal investigation or
review ,” while the prior statutory language covered only individuals “cooperating with
or disc losing information to the Inspector General of an agency . . . .” See 131 Stat.
1283, 161 8. However, the expanded language does not apply here because all of the
relevant events at issue in this appeal occurred prior to December 12, 2017 , and the
Board h as held that the changes to this provision do not apply retroactively . Edwards v.
Department of Labor , 2022 MSPB 9 , ¶¶ 29-33 (find ing that the changes to
section 2302(b)(9)(C) do not apply retroactively) , aff’d , No. 2022 -1967, 2023 WL
4398002 (Fed. Cir. July 7, 2023) . Accordingly, the appellant’s communications with
MSHA did not constitute protected activity under section 2302(b)(9) (C).
26
iv. Disclosure 4
¶44 Disclosure 4 was a December 15, 2016 memorandum the appellant provided
to his first and second -line supervisors desc ribing what he believed to be “illegal
and unethical attempts ” by a representative of PC 1’s parent company to influence
the outcome of the spoil slide investigation. IAF, Tab 16 at 6. The appellant
alleges that after he contacted the MSHA representative who agreed to conduct
the spoil slide inves tigation into PC 1, on December 14, 2016 , his first-line
supervisor informed him that he had received several voicemail messages from
the Chief Operations Officer of PC 1’s parent company. IAF, Tab 8 at 62; see id.
at 51. The appellant and his supervisor returned the call to the PC 1
representative, and during the call the representative proceeded to complain about
the fact that BLM had requested MSHA to investigate the spoil slide, made
disparaging remarks abou t the appellant and his reputation, and yelled at the
appellant ’s supervisor and instructed him that he better “fix the relationship ”
between the agency and PC 1. Id. at 62. The following day, the appellant drafted
a memorandum in which he memorialized w hat had occurred during the call the
previous day and requested that he be removed from duties associated with PC 1
and its parent company , and delivered it to his first and second -line supervisors .
IAF, Tab 8 at 62; see IAF, Tab 16 at 8-9.
¶45 We conclude that he has failed to nonfri volously allege that Disclosure 4 is
protected because he has not explained how the de scribed actions taken by the
PC 1 representative implicate the Government ’s reputation, interest, and good
name. The wrongdoing the appellant identifies exclusiv ely concerns the behavior
by PC 1’s representative attacking his character and attempting to discourage him
from investigative efforts, and nothing in the provided memorandum identifies
any action by agency officials encouraging or perm itting PC 1’s efforts to impede
the investigation. See IAF, Tab 16 at 8-9. The closest the appellant comes to
suggesti ng any sort of complicity in PC 1’s wrongdoing by any agency official is
his assertion that his supervisor did nothing to “speak up and defend ” the
27
appellant ’s reputation from the personal attacks by PC 1’s representative during
the call , but even if true, such conduct does not rise to the level of implicating the
Government in PC 1’s wrongdoing . IAF, Tab 8 at 62. Accordingly , we also
agree that the appellant failed to nonfrivolously allege that he made a protected
disclosur e in connection with Disclosure 4.
The appellant nonfrivolously alleged that Disclosure 1 contributed to the
significant change in his duties, responsibilities, and working conditions ,
and is therefore entitled to a hearing on the merits regarding Disclosure 1 .
¶46 Having determined that the appellant nonfrivolously alleged that he made
one protected disclosure and was subjected to one personnel action, we must now
consid er whether he has established that his disclosure was a contributing factor
in the agency ’s decision to take the personnel action. A protected disclosure is a
contributing factor if it affects an agency ’s decision to take a personnel action.
Dorney v. De partment of the Army , 117 M.S.P.R. 480 , ¶ 14 (2012). The most
common way of proving contributing factor is through the knowledge/ timing test
of 5 U.S.C. § 1221 (e). Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 25
(2015). Under that test, an appellant can prove the contributing factor element
through evidence that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of tim e
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action . Id.
¶47 Regarding the “knowledge ” prong of the test, the appellant states that he
informed his first -, second -, and third -line supervisors about Disclosure 1 in “late
May/early June 2016, ” and specifically identifies that he disclosed his concern s
about PC 1 ’s failure to maintain a current R2P2 to his first -line supervisor during
a verbal discussion during the “May to June 2016 ” timeframe , and complained to
his first -line supervisor that PC 1 ’s bypass request should not be approved
sometime in late June to mid -July 2016. IAF, Tab 8 at 13 , 56; Tab 14 at 5;
Tab 16 at 4 -5. Regarding the “timing ” component of the test , the appellant
28
alleges that the significant change in his duties occurred on or around
December 21, 2016, when his first -line supervisor set hard deadlines for his
performance plan for the first time and began otherwise harassing him , which was
approximately 5 to 6 month s after he alleges he began disclosing PC 1 ’s
wrongdoing in connection with Disclosure 1, and within the 1 to 2 year period the
Board has found such disclosures protected. IAF, Tab 8 at 10, 14, Tab 16 at 7;
see Peterson v. Department of Veterans Affairs , 116 M.S.P.R. 113 , ¶ 16 (2011)
(holding that personnel actions taken within 1 to 2 years of the protected
disclosure satisfy the timing prong of the knowledge/timing test).
¶48 We have conclude d that the appellant has made a nonfrivolous allegation
that Disclosure 1 was protected, and that it resulted in a significant change in his
duties, responsibilities, and working conditions . Accordingly , we find that the
appellant has established jurisdiction over his appeal, and that he is entitled to an
adjudication of the merits regarding this claim , including his requested hearing.
¶49 We note that it appears that the appellant may have made Disclosure 1 in
connection with his duties to investigate and disclose compliance with Federal
resource extraction laws and regulations . See 0233 IAF , Tab 6 at 29-3. Pursuant
to 5 U.S.C. § 2302 (f)(2), an appellant who makes a disclosure in the normal
course of his duties must additionally show that the agency took the action “in
reprisal for” his disclosure, and it thereby imposes a slightly higher burden for
proving that the disclosure was prote cted. Salazar v. Department of Veterans
Affairs , 2022 MSPB 42 , ¶ 11 . The National Defense Authorization Act for Fiscal
Year 2018 (2018 NDAA) amended 5 U.S.C. § 2302 (f)(2) to provide that it only
applies to employee s whose principal job functions are to regularly investigate
and disclose wrongdoing, Salazar , 2022 MSPB 42 , ¶¶ 13-14, and that that
amendment is entitled to retroactive effect. Id., ¶¶ 15-21. The Board has recently
clarified that the potential applicability of 5 U.S.C.§ 2302 (f)(2) is not part of the
jurisdictional analysis in an IRA appeal , and should instead be considered at the
merits stage . Williams v. Department of Def ense , 2023 MSPB 23 , ¶ 12.
29
¶50 Here, t he administrative judge did not consider the applicability of 5 U.S.C.
§ 2302 (f)(2) or the 2018 NDAA amendment. On remand, the appellant must
demonstrate by a preponderance of the evidence that h is disclosure w as protected
under 5 U.S.C. § 2302 (b)(8) and that it was a contributing factor in the contested
personnel action. 5 U.S.C. § 1221 (e)(1). If the appellant’s principal job function
was to regularly investiga te and disclose wrongdoing and he made h is disclosures
in the normal course of h is duties, to establish that h is disclosures were protected,
the appellant must also prove that the agency had an improper, retaliatory motive
for terminating h im.
¶51 In conducti ng that analysis, the administrative judge should first determine
whether: (1) the appellant’s primary job function at the time of the disclosure
was to investigate and disclose wrongdoing; and (2) the disclosure was made in
the normal course of the appel lant’s duties. The administrative judge may
consider these questions in whichever order is more efficient, and the parties
should be provided an opportunity to submit relevant evidence and argument. If
either condition is unsatisfied, then section 2302(f )(2) does not apply, and the
appellant’s disclosures would fall under the generally applicable 5 U.S.C.
§ 2302 (b)(8). Salazar , 2022 MSPB 42 , ¶ 22. If conditions (1) and (2) are both
satisfied, the administrative judge should next determine whether the appellant
can meet h is additional burden under section 2302(f)(2) by de monstrating that the
agency took the contested personnel action “in reprisal” for h is disclosure. In
doing so, the administrative judge should consider the totality of the evidence.
5 C.F.R. § 1201.4 (q) (stating that the record as a whole should be considered
when determining whether a party has met the preponderance of the evidence
standard); see Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir.
2012) (“It is error for the MSPB to not evaluate all the pertinent evidence in
determining whether an element of a claim or defense has been proven
adequately.”) .
30
¶52 The determination of whether the agency took personnel actions “in reprisal
for” the appellant ’s whistleblowing disclosures may include direct and
circumstantial evidence encompassi ng the following factors: (1) whether the
agency officials responsible for taking the personnel action knew of the
disclosures and the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosures were in reprisal for the
personnel action; (2) the strength or weakness of the agency ’s reasons for taking
the personnel action; (3) whether the disclosures were personally directed at the
agency officials responsible for taking the action; (4) whether the act ing officials
had a desire or motive to retaliate against the appellant; and (5) whether the
agency took similar personnel actions against similarly situated employees who
had not made disclosures. Williams , 2023 MSPB 23, ¶ 16 .
¶53 If the administrative judge determines that section 2302(f)(2) ’s extra proof
requirement applies to Disclosure 1 and that the appellant established t hat he
made this whistleblowing disclosure under this extra proof requirement, the
burden then shifts to the agency to demonstrate by clear and convincing evidence
that it would have taken the personnel actions in the absence of the appellant ’s
whistleblowing, consistent with the following factors (“Carr ” factors): (1) the
strength of the agency ’s evidenc e in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidenc e that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated) . Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11;
see also Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir.
1999) .
31
ORDER
¶54 For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with th is Remand Order.11
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
11 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order. | HARRY_ROBERT_M_DE_1221_20_0383_W_1_REMAND_ORDER_2064385.pdf | 2023-08-30 | null | DE-1221 | NP |
2,752 | https://www.mspb.gov/decisions/nonprecedential/TUCEVICH_MICHAEL_D_CB_7521_16_0010_T_1_FINAL_ORDER_2064418.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOCIAL SECURITY
ADMINISTRATION,
Petitioner,
v.
MICHAEL D. TUCEVICH,
Respondent. DOCKET NUMBER
CB-7521 -16-0010 -T-1
DATE: August 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan L. Smith , San Francisco, California, for the petitioner.
Christopher Landrigan, Esquire, and Sara A. Buchholz, Esquire,
Washington, D.C., for the respondent.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The respondent has filed a petition for review, and the Social Security
Administration (SSA) has filed a cross petition for review of the initial decision,
which found good cause under 5 U.S.C. § 7521 to suspend the respondent for
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
10 days. For the reasons discussed below, we VACATE the initial decision and
DISMISS the appeal as moot.
BACKGROUND
¶2 In a March 24, 2017 initial d ecision, the adjudicating administrative law
judge concluded that SSA had good cause to suspend the respondent fo r 10 days.
Initial Appeal File, Tab 28. The respondent filed a petition for review with the
Board , and SSA filed a cross petition for review. Petition for Review (PFR) File,
Tabs 1, 3. While such petitions were pen ding before the Board, on March 20,
2018, SSA filed a notice of withdrawal of its cross pe tition for review on the
ground that the respondent had retired from his position as an Administrative Law
Judge on or about January 31, 2018. PFR File, Tab 7. As a result, SSA
maintained that there was no further relief that the Board could grant with respect
to its cross petition for review. Id.
¶3 The Board issued an order directing SSA to support its assertion that the
respondent had retired with evidence or sworn statements and affording the
respond ent an opportunity to show cause as to why the appeal should not be
dismissed as moot. PFR File, Tab 8. In response, the agency submitted a
Standard Form 50 indicating that the respondent had voluntarily retired, effective
January 31, 2018. PFR File, Ta b 9. The respondent also filed a response to the
order, acknowledging that he had retired on that date, but main taining that his
retirement did not render the appeal moot because a case or controversy exists
regarding whether the agency established good c ause to dis cipline him and
because the Boar d could grant further relief by reversing the unfavorable initial
decision.2 PFR File, Tab 10.
2 The respondent’s citation in support of his argument s to Social Secu rity
Administration v. Callis , MSPB Docket No. CB -7521 -14-0013 -T-1, Initial Decisio n
(Oct. 15, 2015 ), PFR File, Tab 10 at 5 -6, is not persuasive because initial decisions are
of no precedential value and cannot be cited or relied on as controlling authorit y, see
Rockwell v. Department of Commerce , 39 M.S.P.R. 217 , 222 (1988); 5 C.F.R.
§ 1201.113 . Similarly, we find unavailing the respondent’s reliance on Special
3
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 A case is moot when the issues presented are no longer live or the parties
lack a l egally cognizable interest in the outcome of the appeal. Currier v. U.S.
Postal Service , 72 M.S.P.R. 191 , 195 (1996). Mootness can arise at any stage of
litigation, and an appeal will be dismi ssed as moot when, by virtue of an
intervening event, the Board cannot grant any effectual relief or when the
respondent has obtained all of the relief he could have obtained had h e prevaile d
before the Board. See id .
¶5 Here, the respondent’s retirement is an intervening event rending his appeal
moot. The r espondent was never suspended because, due to his status a s an
administrative law j udge, SSA could not act until the Board approved the
suspension. See 5 U.S.C. § 7521 (a). In that regard , the March 24, 2017 initial
decision imposing a 10 -day suspension did not become final because the
respondent filed a petition for review with t he Board. See 5 C.F.R.
§§ 1201.113 (a), 1201.140 (a)(2) . Therefore, there is no showing of any monetary
loss to the respondent.
¶6 To the extent the respondent has now retired and is no longer emplo yed as
an Administrative Law J udge , the agency can no longer impose a suspension even
if the Board were to find good cause . See 5 U.S.C. § 7521 (a) (stating that “[a]n
action may be ta ken against an administrative law judge appointed under section
3105 of this title by the agency in which the administrative law judge is employed
only for good cause established and determined by the [Board] on the record after
opportunity for hearing bef ore the Board”) (emphasis a dded). Moreover, even if
the Board were to find that there was no good cause to discipline the respondent,
Counsel v. Malone , 84 M.S.P.R. 342 , ¶¶ 33 -34 (1999) , in which the Board found that
the respondents’ resignatio ns did not render moot an action by the Office of Special
Counsel alleging violations of the Hatch Act. PFR File, Tab 10 at 6. Malone is
distinguishable to the extent it concerns a Hatch Act violation under which an
employee’s penalty is not dependent on his continued Government employment , but
rather may include assessment of a civil penalty and/or debarment from Federal
employment . See 5 U.S.C. § 7326 .
4
such relief would be on paper and would not be meaningful or effective.
Therefore, the respondent has not shown that the Board can grant any effectual
relief regarding his appeal . See, e.g. , Occhipinti v. Department of Justice ,
61 M.S.P.R. 504 , 508 (1994) (dismissing the appellant’s individual right of action
appeal as moot because the appellant was no longer an employee of the agency,
the Board could not order him to be reassigned to his former position, and the
only relief that the Board could grant would be on paper, which it found was not
meaningful or effective relief); see also White v. International Boundary and
Water Commission , 59 M.S.P.R. 62 , 65 (1993) (dismissing an appeal as moot
because the Board could not order the appellant’s return to the agency’s rolls
when he had subsequently been removed again and the only relief it could award
was a paper declaration that the appellant w as temporarily treated improperly,
which it found was not effective relief).
¶7 Finally, a lthough the respondent argues that a decision as to whether the
agency established good caus e to discipline him would provide appropriate
guidance to SSA in considering discipline for employees who engage in similar
misconduct, PFR File, Tab 10 at 6 , the Board is specifically prohibited from
issuing adviso ry opinions, and therefore may not render an op inion in a matter
that is moot, see 5 U.S.C. § 1204 (h); Occhipinti , 61 M.S .P.R. at 508 n.2.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nat ure of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appr opriate in any matter.
5
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate on e to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant4 seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Co urt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 In this case, the respondent has the same appeal rights as an “appellant.”
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 Me rit Systems Protection Board appellants before the 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 involvin g a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this de cision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prep ayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other iss ues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 revie w pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 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 allegation s of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the F ederal 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 expir ed on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N. W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” w hich is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb .gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representa tion in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of App eals
for the Federal Circuit or any other circuit court 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.go v/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TUCEVICH_MICHAEL_D_CB_7521_16_0010_T_1_FINAL_ORDER_2064418.pdf | 2023-08-30 | null | CB-7521 | NP |
2,753 | https://www.mspb.gov/decisions/nonprecedential/MILES_KAREN_E_SF_0752_21_0232_I_1_FINAL_ORDER_2064508.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KAREN E. MILES,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-0752 -21-0232 -I-1
DATE: August 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karen E. Miles , APO, AP, pro se.
Douglas Frison , APO, AP, 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
sustained her removal based on three charges of misconduct . For the reasons
discussed below, we GRANT the app ellant’s petition for review, VACATE the
initial decision, and REVERSE 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
¶2 The appellant was employed by the Department of Defense Education
Activity (DODEA or agency) as a Te acher at Osan Middle High School in Osan,
Korea, where she taught sixth and eighth grade children. Initial Appeal File
(IAF), Tab 7 at 18, Hearing Recording (HR) (t estimony of the appellant).
On February 26, 2020, DODEA in Korea moved from physical class room learning
to distance learning in response to the COVID -19 pandemic. HR (testimony of
the Principal ).2 As a result, staff and students began utilizing various online
educational tools, and teachers were instructed to exercise “maximum flexibility”
with students in light of the COVID -19 restrictions. Id.
¶3 On April 28, 2020, the appellant emailed the parents of I.S. ,3 one of her
sixth grade students, alerting them that I.S. had multiple assignments missing in
Math class , and had an incomplete for the q uarter.4 IAF, Tab 10 at 180 -81;
HR (testimony of the appellant). On April 30, 2020 , I.S.’s mother sent the
appellant an email which contained links to Google Drive files that I.S.’s mother
claimed contained the missing work. IAF, Tab 10 at 179 -80; HR (testimony of
the appellant). Subsequently, on May 14, 2020, the appellant emailed I.S. and her
parents, stating:
Good afternoon [I.S.]
Thank you for immediately contacting me. Please understand that
there is us ually only a ten day time frame to change a grade of (I)
2 The individual who was the Principal of the school where the appellant worked during
all times relevant to this appeal is now the agency’s Pacific South District
Superintendent . HR (testimony of t he Principal ). We will refer to him as the Principal
as that was his role in this case.
3 For clarity purposes, we use the same initial s for the student as the administrative
judge used in the initial decision.
4 The record does not contain actual copies of the referenced emails. Instead, the record
only contains a statement from the Principal , in which he appears to have cut and pasted
the relevant emails into his statement, along with his own commentary. IAF, Tab 10
at 155-90. The agency did not expl ain why it failed to submit actual copies of these
emails, but the appellant has not objected to the authenticity of the recreated emails.
3
[incomplete] that was given to you in Quarter 3 to avoid
documenting the grade of “F” that you have actually earned for Math
for Quarter 3. Please complete those assignments as soon as
possible.
I am always available in all Google Meet Sessions during our class
period to provide instructional support.
IAF, Tab 10 at 149, 158.5
¶4 Approximately 2 weeks later, I.S.’s father responded to the appellant,
copying the Principal and the Assistant Principal, req uesting that I.S.’s grades be
“calculated correctly,” claiming that I.S. had submitted the missing work and that
it was “completely unacceptable and border ing on cruel” for the appellant to tell
I.S. that she had actually earned an F. Id. at 155 -56. In t hat same email, I.S.’s
father includ ed links to the Google Drive, claiming that it contained the missing
assignments, and identifying what he believed to be errors in the appellant’s
grading. Id. at 15 6-58.
¶5 The Principal asked the appellant about the accusations made by I.S.’s
father , and the appellant explained that she only graded students ’ problem set
assignments, quizzes, and assessments, and she confirm ed that her gradebook was
accurate. Id. at 159 -60. However, after further demands by I.S.’s pa rents,
the Principal independently reviewed the Google Drive , determined that the
missing assignments had been submitted , and found that t he appellant incorrectly
graded I.S. as earning a D or F when she had actually earned an A.6
HR (testimony of the Principal ).
¶6 Effective February 26, 2021, the agency removed the appellant based on
three charges of misconduct. IAF, Tab 10 at 18 -21, 1 43-46. The first charge,
use of poor judgment in dealing with students and parents, was su pported by three
5 Although it appears that there was an email from I.S. to which the appellant was
responding, there is no copy of that email in the record.
6 A student’s third quarter grades were especially significant because, per the agency’s
pandemic grading policy, a student’s third quarter grade carried over to the fourth
quarter. HR (testimony of the Principal ).
4
specificatio ns. Id. at 143 -44. The first specification referenced the May 14, 2020
email as discussed above. Id. at 143. The second specification referenced a chat
message the appellant sent to a student while playing an instructional video
during class , telling a student “[i]t is not the wrong video. You would be aware
of th at if you actually reviewed it.” Id. The third specification referenced
an email the appellant sent to I.S. and her parents, in which she instructed the
parents to stop sending I.S.’s practice work , and told them that I.S.’s sister should
teach her. Id. at 143 -44. In support of the agency’s second charge, negligent
performance of duty, the agency alleged that b etween April and June 2020,
the appellant failed to properly receive and gr ade the work of I.S ., which required
other s to grade I.S.’s work and correct her error . Id. at 144. Finally, in the third
charge, the agency charged the appellant with inattention to duty, alleging that
she failed to appear for a scheduled meeting with a District Instructional Systems
Specialist (ISS) , and did not notify him that she would not be attending the
meeting . Id.
¶7 The appellant filed a Board appeal challenging her removal, IAF, Tab 1,
and after holding a hearing, the administrative judge issued an initial decision
affirming the removal, IAF, Tab 33, Initial Decision (ID). First, he found that the
agency proved the first and second specifications of the first charge, but it did not
prove the third specification. ID at 12, 14 -15. He did, however , find that the
agency proved its second and third charge s in full. ID at 21, 29. Then, he denied
the appellant’s claim of equal employment opportunity (EEO ) retaliation, finding
that she failed to show by preponderant evidence that her EEO activity was a
motivating factor in her removal. ID at 34-35. Similarly, the admi nistrative
judge denied the appellant’s claim that the agency violated her due process rights,
finding that she received notice of the charges, an opportunity to respond, and had
failed to establish that the deciding official considered ex parte communications
or otherwise acted improperly. ID at 36 -37. Thus , after finding that the agency
5
established nexus and removal was within th e bounds of reasonableness,
the administrative judge aff irmed the appellant’s removal . ID at 37 -41.
¶8 The appellant has filed a petition for review, challenging, among other
things, the administrative judge’s findings sustaining the agency’s charges, and
arguing that the agency retaliated against her because o f her EEO activity7 and
violated her due process rights by considering past discipline without notifying
her.8 Petition for Review (PFR) File, Tab 3. The agency did not respond to the
appellant’s petition for review.9
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 Generally, in an adverse action appeal, an agency must prove its charge by a
preponderance of the evidence, establish a nexus between the action and the
efficiency of the service, and establish that the penalty it imposed is within the
tolerable bounds of re asonableness. Hall v. Department of Defense , 117 M.S.P.R.
7 Although her allegations are vague and unclear, to the extent that the appellant argues
that the agency retaliated against her by mishandling her permanent chan ge of station
orders , PFR File, Tab 3 at 32 -34, the issue before the Board in this appeal is her
removal, and because the actions complained of occurred after her removal, we do not
address it further.
8 To the extent that the appellant argues that the administrative judge abused his
discretion by not allowing her “to use sworn depositions as evidence in suppo rt of her
verbal testimony,” th e record does not support her argument . PFR File, Tab 3 at 10.
The only deposition the appellant references is the deposition of the Assistant Principal,
who testified at the hearing, and there is no evidence that the admin istrative judge
prevented the appellant’s representative from using the deposition for impeachment
purposes. Id. at 10 -11; HR (testimony of the Assistant Principal). Accordingly, the
appellant has failed to show that the administrative judge abused his d iscretion.
9 The appellant attaches multiple pages of exhibits to her petition for review, including
copies of awards she received, email communications, student progress repo rts,
agendas, agency memoranda , agency policies, and recorded meetings with the Principal
regarding a previous suspension and a progress report. PFR File, Tab 3 at 16, 36-103,
Tab 4 . The appellant has not provided any explanation as to why these documents were
not submitted prior to the close of record, only stating that this “dire ct evidence” was
not submitted by the agency or her representative. Id. at 11. Having reviewed the
documents, we find nothing relevant to the issues at hand , and thus, because the
evidence is neither new nor material , we do not address it further .
6
687, ¶ 6 (2012). An agency must prove all of the elements of the sub stantive
offense it charged against the appellant and a failure to do so will cause the Board
to not sustain the charge. King v. Nazelrod , 43 F.3d 663 , 666 (Fed. Cir. 1994).
Here , we do not find that the agency proved its charges against the appellant ,
and thus, her removal cannot be sustained .
¶10 As set forth below , we first address the agency’s second charge, negligent
performance of duty, and find that the agency did not prove that the appellant
failed to properly receive and grade I.S.’s work , and thus, it did not prove its
charge . Next, because we find that there is insufficient evidence establishing that
the a ppellant erred in grading I.S.’s work , we also find that the agency failed to
prove that the May 14, 2020 email constituted use of poor judgment , i.e., the first
specification of the first charge. Then, because we find that the agency failed to
prove that the appellant’s comment regard ing the video , i.e., the second
specification of the first charge, constituted use of poor judgment , we find that
the agency failed to prove its first charge in its entirety . After that , we find that
the agency failed to prove its third charge of inattention to duty, as we do not find
that a single missed meeting with a peer , sought and arranged solely by the
appellant, constitutes actionable misconduct . We then turn to the appellant’s
affirmative defenses, finding that the administrative judge correctly found that the
appellant failed to establish her claim of EEO retaliation or a due process
violation. B ecause we find that the agency failed to prove any of its charges, we
order that the appellant’s removal be reversed .
There are sufficiently sound reasons to set aside the administrative judge’s
credibility determination s and find that the agency fail ed to prove its s econd
charge , negligent performance of duty .
¶11 The administrative judge, crediting the Principal ’s testimony over the
appellant’s testimony, found that the appellant failed to properly receive and
grade the work of I.S., requir ing the Principal to intervene and grade I.S.’s work.
ID at 19-21. He also found that the agency proved that the appellant was required
7
to accommodate I.S.’s attempts to submit schoolwork and to properly grade I.S.’s
work, and that she failed to exercise the degree of care required under the
particular circumstances, which a person of ordinary prudence in the same
situation with equal experience would not om it. ID at 21. Accordingly,
he sustained the agency’s second charge of negligent performance of duty. Id.
¶12 An initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credibility, and include the
administrative judge ’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests. Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980). To resolve credibility issues,
an administrative judge must identify the factual questions in dispute, summarize
the evidence on each disputed question, state which v ersion he believes,
and explain in detail why he found the chosen version more credible, considering
such factors as: (1) the witness’s opportunity and capacity to observe the event
or act in question; (2) the witness’s character; (3) any prior inconsiste nt 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 w itness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army , 35 M.S.P.R.
453, 458 (1987) . The Board must defer to an administrative judge’s findings
regarding credibility when, as here, they are based, either explicitly or implicitly ,
on observing the demeanor of witnesses testifying at a hearing , and the Board
may overturn such determinatio ns only when it has “sufficiently sound” reasons
for doing so . Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir.
2002 ). Specifica lly, t he Board has found that it does not owe deference to
an administrative judge’s credibility determinations when his findings are
incomplete, inconsistent with the weight of the evidence, and do not reflect the
record as a whole. Thomas v. Department of the Army , 2022 MSPB 35 , ¶ 8.
8
¶13 After an extensive review of the record, we find that there are sufficiently
sound reason s to overturn the administrative judge’s credibility determinations.
First, the administrative judge’s findings are incomplete, because there is critical
evidence missing in the record, namely, what documents the Principal viewed
when he reviewed the Google Dri ve files purportedly containing I.S.’s missing
assignments, and the assignments that were incorrectly graded . Copies of these
documents are absent from the record , and while the Principal testified that there
were documents in the Google Drive files that he reviewed , he did not describe
the contents of the documents, detail how the grading was incorrect, or even
clarify which version of the Google Drive files he viewed. HR (testimony of the
Principal ). This final point is especially significant because I .S.’s parents sent
the Google Drive files four separate times —on April 30, 2020 , to the appellant,
on May 26, 2020 , to the appellant and the Principal , and on June 8 and June 9,
2020 , to the Principal —and thus, there are four sets of Google Drive links that the
Principal could have viewed. IAF, Tab 10 at 155 -58, 161 -63, 173 -75, 180 -81.
Indeed, the appellant stated in a sworn s tatement that the Google Drive files sent
to her on April 30, 2020 , contained examples, exercises , and class work that I.S.
had copi ed from class lessons that were not part of the graded assignments , but
that I.S.’s father later sent “a modified version of that drive .”10 Id. at 192.
Despite the fact that it is the agency’s burden of proof, the agency never
introduced any evidence regarding the specif ic contents of the Google Drive files
reviewed by the Principal , nor did it rebut the appellant’s claim that the initial
version was later modified.
10 The appellant stated that I.S.’s father sent the modified version on May 14, 2020,
IAF, Tab 10 at 192, however, there is no record of I.S.’s father sending a Google Drive
file on May 14, 2020. He did, however, send a Google Drive file on May 26, 2020, two
weeks after the appellant sent her May 14, 2020 email. Id. at 155 -58. Thus , it appears
that the appellant merely switched the dates of her own email with the date the father’s
email.
9
¶14 In order to determine that the appellant had, in fact, failed to properly
receive and grade I.S.’s work , the administrative judge needed to know the work
the appellant reviewed and graded, as well as the work the Principal reviewed and
graded. The agency failed to present any evidence on this issue, and thus, it is
impossible to determine whether the appellant did, in fact, err in her grading .
Accordingly, because there is critical evidence missing from the record, we find
that the administrative judge’s finding that the appellant failed to properly receive
and grade I.S.’s work is incompl ete. ID at 20 -21.
¶15 Furthermore , the administrative judge’s findings are inconsistent with the
weight of the evidence and do not reflect the record as a whole. First, the record
reflects that poor performance in the classroom was not out of character for I.S.
The appellant testified that I.S. was largely absent from the virtual classroom,
and that she, along with other teachers, had been struggling to get I.S. to log on to
classes and complete her work . HR (testimony of the appellant). The appellant’s
testimony is consistent with her contemporaneous notes documenting I.S. as
“[c]ompletely [o]ff the [g]rid (no communication nor turned in assignments),”
as well as three graded third quarter Math quizzes and/or assignment s showing
that I.S. was marked absent . Id. at 89 -91, 94. In fact , the record shows that I.S.
missed assignments in Math in the fourth quarter, a fact that was confirmed by
the Principal , as well as missing assignments in Langua ge Arts, a class also
taught by the appellant . Id. at 71, 74-74, 17 0-71. I.S. had several missing
assignments in other classes as well, including Band and Yearbook, and her first
semester grades include an F in Y earbook, a D in Band , and a C - in Integrated
Science II. Id. at 95 -97. Finally, there is no evide nce that errors in gradi ng were
a typical issue for the appellant , and indeed, the agency did not review or object
10
to any other grade , including the A the appellant gave to I.S.’s step -siste r, who
was also in the sixth grade Math class.11 HR (testimony of the appellant).
¶16 In conclusion , we find that the administrative judge’s findings are
incomplete, inconsistent with the weight of the evidence, and do not reflect the
record as a whole, and thus, we need not to defer to them, and based on our
review of the record, we overturn his credibility determinations. See Faucher v.
Department of the Air Force , 96 M.S.P.R. 203 , ¶¶ 12 -18 (2004) (finding that
there were sufficiently sound reasons to overturn an administrative judge’s
credibility determination when his findings were incomplete, inconsistent with
the weight of t he evidence, and did not reflect the record as a whole). Further ,
regardless of whether the Principal was a credible witness as to the Google Drive
files that he actually reviewed , we find that there is insufficient evidence to show
that the appellant inc orrectly graded I.S ., and thus, we find that the agency failed
to prove the appellant was negligent in her performance of duty . Accordingly , we
reverse the administrative judge’s finding sustaining the second charge. ID at 21.
The agency failed to prove the first specification of its first charge of use of poor
judgment in dealing with students and parents .
¶17 The agency’s first specifi cation of its first charge, use of poor judgment in
dealing with student and parents, is centered on the appellant’s May 14, 2020
email to I.S. and her parents, stating , in part, that I.S. had missing assignments
and had actually earned an F . IAF, Tab 10 at 143. The administrative judge
sustained the specification, finding that the agency proved that the appellant told
I.S. t hat she had actually earned an F, when it was the appellant who erred in
grading, and thus, her communication was inappropriate. ID at 12.
11 Although the Principal asserted that he believed the appellant targeted I.S. by giving
her an F or D, the evidence does not support this claim. While the Principal testified
that all of the appellant’s Math students received As or Bs except for I.S., the grades in
the appellant’s Math class actually ranged from the low 70s to high 90s. IAF, Tab 10
at 201; HR (testimony of the Principal). Also, I.S. received an average grade in the
appellant’s Language Arts class, further undermining the Principal’s spec ulation.
Accordingly, we discern no evidence of any targeting by the appellant.
11
¶18 The appellant does not dispute that she sent the May 14, 2020 email , and
the record contains a copy of the email establishing that she made the statements.
IAF, Tab 10 at 149, 158. However, we do not find that the email evidences poor
judgment. The appellant’s email was not disrespectful or aggressive in tone —it
was merely informing a student, and her parents, t hat there was missing work, and
that she currently had an incomplete but had actually earned an F. Id. In fact,
the wording used by the appellant was consistent with the agency’s instructions to
teachers regarding the language to use when discussing grades, i.e., earning a
grade versus giving a grade . HR (testimony of the appellant, testimony of the
Principal ).
¶19 Nevertheless, the agency argued that the email was inappropriate because it
was the appellant who had inaccurately graded I.S.’s work, and thus, I.S. did not
actually earn an F . IAF, Tab 10 at 143 ; HR (testimony of the Principal ).
However, as we explained in detail above, the agency failed to establish that the
appellant incorrectly graded I.S.’s work. Accordingly, we do not find that the
appellan t’s email evidenced use of poor judgment and we reverse the
administrative judge’s finding sustaining the first specification.12 ID at 12.
The agency failed to prove the second specification of its first charge of use of
poor judgment in dealing with stude nts and parents .
¶20 The appellant does not dispute the factual content of the second
specification, i.e., that she responded to a student, who told her she was playing
the wrong video, in a chat message by stating, “[i]t is the correct video.
12 During the hearing, the Principal testified extensively regarding other complaints
received from parents regarding the appellant’s tone. HR (testimony of the Principal ).
The Board will not sustain an agency action on the basis of charges that could have
been brought, but were not. Stuhlmacher v. U.S. Postal Service , 89 M.S.P.R. 272 , ¶ 14
(2001). Further, t he Board adjudicates an agency’s charge as it is described in the
agency ’s proposal and decision notices. Id.; Rackers v. Department of Justice ,
79 M.S.P.R. 262 , 276 (1998), aff’d , 194 F.3d 1336 (Fed. Cir. 1999) (Table). Thus,
because these other complaints are not included in the proposal notice, they are not
relevant to the issues at hand. IAF, Tab 10 at 143 -46.
12
You would be aw are of that if you actually reviewed it.” IAF, Tab 10 at 143,
151; HR (testimony of the appellant). The agency alleged that the appellant’s
comment was inappropriate behavior for a teacher because it singled out a child
in an open forum in front of her p eers, and placed the child in an embarrassing
position. HR (testimony of the Principal , testimony of the deciding official).
The administrative judge agreed, sustaining the second specification, finding that
the appellant posted a “negative sounding mess age to the entire class” that
exhibited poor judgment. ID at 13-14.
¶21 While we acknowledge , as the appellant does, that she did not use model
language here , we do not find this single, isolated comment to be sufficiently
egregious or offensive as to constitute poor judgment . HR (testimony of the
appellant). Neither the student, nor her parents, report ed or complain ed about the
comment,13 and there is no statement from the student or her parents claiming that
she was embarrassed or humiliated by the f airly harmless comment. At most,
the statement is slightly harsh, but it does not rise to the level of poor judgment as
charged by the agency. IAF, Tab 10 at 143. Accordingly, because the agency
failed to prove the two specifications constituting the fi rst charge ,14 we reverse
13 The comment was reported by the parent of another chil d in the class. IAF, Tab 10
at 153.
14 The administrative judge did not sustain the third specification, which alleged that
the appellant told I.S.’s parents to stop sending I.S.’s practice work and to have I.S.’s
sister, w ho was also in the appellant’s sixth grade M ath class, teach I.S. ID a t 14-15.
Specifically, the administrative judge found that the specification could not be
sustained because the agency had failed to put forth sufficien t evidence to substantiate
the allegation , because the agency never received a copy of the email in wh ich these
statements were allegedly made . Id. The agency has not challenged the administrative
judge’s finding on review , and we discern no basis to disturb his finding s. Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (stating that the Board will not disturb
an administrative judge’s findings when she considered the evidence as a whole, drew
appropriate inferences, and m ade reasoned conclusions on issues of credibility);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987 )
(same).
13
the administrative judge’s finding sustain ing the charge of use of poor judgment
in dealing with student and parents . ID at 15.
The agency failed to prove its third charge of inattention to duty.
¶22 The agency charged the appellant wi th inattention to duty based on a single
specification, alleging that she failed to attend a scheduled meeting with the ISS.
IAF, Tab 10 at 144. The administrative judge sustained the charge, crediting the
testimony of the ISS, finding that the ISS and t he appellant had a scheduled
meeting, which the appellant did not attend , nor did she notify the ISS that
she would not be attending . ID at 26 -28. He also found that the appellant had a
duty to appear for scheduled meetings, during duty hours , and that h er failure to
attend this meeting constituted inattention to duty. ID at 28 -29.
¶23 The facts underlying the charge are that, while off-duty, the appellant ran
into the ISS and approached him about receiving additional training regarding a
teaching program. HR (testimony of the appellant, testimony of the ISS). It was
during this encounter that the ISS believed a meeting had been scheduled,
although the appellant contests this, asserting that they did not agree to meet at a
specific date or time. HR (test imony of the appellant, testimony of the ISS).
Nevertheless, the appellant did not meet with ISS on the date liste d in the
agency’s specification .15 HR (testimony of the appellant, testimony of the ISS);
IAF, Tab 10 at 144.
¶24 However, even assuming a meeting was scheduled, we do not find that such
conduct is actionable. An agency may ta ke an adverse action against
an employee “only for such cause as will promote the efficiency of the service.”
5 U.S.C. § 7513 (a). “Cause” under section 7513(a) generally connotes some
specific act or omission on the part of the employe e that warrants discipline,
and an agency charge that does not set forth actionable conduct cannot be
sustained. Gonzalez v. Department of Homeland Security , 114 M.S.P.R. 318 , ¶ 10
15 The ISS rescheduled the meeting without objection. IAF, Tab 10 at 214, 216.
14
(2010). The crux of the agency’s charge is that the appell ant failed to appear for
a meeting with the ISS, a peer , that she scheduled for her own edification . There
is no evidence that her supervisors arranged for her to attend the meeting,
expected her to attend the meeting, or even that she was required to see k
additional training . There is also no evidence that the ISS was a supervisor or
manager, and thus, while missing a scheduled meeting is perhaps rude, there is no
evidence that the appellant was under any obligation to attend this meeting .
Therefore, ac cepting the allegations are true, while the appellant’s behavior may
be characterize d as inconsiderate, we fail to see how her failure to attend one
meeting with a peer constitutes actionable misconduct . Accordingly, the agency’s
third charge cannot be sustained.
The appellant failed to prove her affirmative defense of EEO retaliation.
The appellant, both below and on review, argued that her removal was in
retaliation for her protected EEO activity, which included filing her own EEO
complaint, submitt ing a declaration in support of a fo rmer coworker’s EEO
complaint, and requesting reasonable accommodation.16 IAF, Tab 26 at 5 -6;
PFR File, Tab 3 at 7, 19, 25 -26, 31 -34. The administrative judge found that the
appellant had “offered little evidence or arg ument” to support her claim, and thus,
she failed to show that her EEO activity was a motivating factor in her removal.
ID at 34 -35. Given that the appellant testified her removal was the result of
retaliation because there was no other explanation, we a gree that the appellant has
offere d nothing more than conclusory statements in support of her claim .
HR (testimony of the appellant) . Accordingly, we discern no basis to disturb the
16 After the initial decision was issued, the Board issued Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 44-47, which clarified that requests for
reasonable accommodation and opposing disability discrimination are act ivities
protected under the Americans with Disabilities Act , and thus, a “but -for” standard is
applicable. However, because we agree with the administrative judge that the appellant
failed to prove motivating factor , ID at 34 -35, she necessarily failed to prove “but -for”
causation,” and thus, the administrative judge did not commit prejudicial error .
15
administrative judge’s findings. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 ,
106 (1997) (explaining that Board will not disturb an administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclus ions on issues of credibility) ; Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same) .
The appellant failed to prove that the agency violated her due process rights.
¶25 On review, the appellant challenges th e administrative judge’s find ing that
the agency did not violate her due process rig hts, claiming that the agency
considered “duplicitous disciplinary and counseling matters that predated the
notice of proposed removal” and did not notify her that these matters were being
considered. PFR File, Tab 3 at 8, 1 5. The appellant has not identified any
specific disciplinary or counseling matter s she alleges were improperly
considered , and the agency expressly notified her in the proposal notice that it
was considering her disciplinary record, including a letter of reprimand and a
7-day sus pensi on. IAF, Tab 10 at 144. Thus, there is no evidence in the record
supporting the appellant’s claim that the agency violated he r due process rights,
and we discern no basis to disturb the administrative judge findings. Crosby ,
74 M.S.P.R. at 106 ; Broughton , 33 M.S.P.R. at 359 .
ORDER
¶26 We ORDER the agency to cancel the removal action and to restore the
appellant to her TP -1701 -CM Teacher (Mixed Middle) position effective
February 26, 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.
¶27 We also ORDER the agency to pay the appe llant 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
16
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/o r 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.
¶28 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 i ts progress. See 5 C.F.R. § 1201.181 (b).
¶29 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 ha s 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).
¶30 For agencies whose payroll is administ ered 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 deci sion
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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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
17
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 RIGHTS17
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately rev iew the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three mai n possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial r eview in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
17 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
18
within 60 calendar days of the dat e of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts .gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endors es the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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 filin g a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
19
with the district court no later than 30 calendar days after your representative
receives this decision. If the action in volves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
20
(3) Judicial review pursuant to the Whistleblower Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 personne l practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.18 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
18 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
Decemb er 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 d amages) 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 c ompleted “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 th e 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, ref unds 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 CEN TER CHECKLIST FOR BA CK 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 Seve rance 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 a pplicable).
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 Resto ration 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. | MILES_KAREN_E_SF_0752_21_0232_I_1_FINAL_ORDER_2064508.pdf | 2023-08-30 | null | SF-0752 | NP |
2,754 | https://www.mspb.gov/decisions/nonprecedential/NIEVES_ANGEL_D_NY_0752_17_0240_I_2_REMAND_ORDER_2063795.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANGEL D. NIEVES,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
NY-0752 -17-0240 -I-2
DATE: August 29, 2023
THIS ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Michael Huber , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The agency has filed a peti tion for review of the initial decision, which
reversed the appellant’s removal on due process grounds. For the reasons
discussed below, we GRANT the agency’s petition for rev iew, REVERSE the
administrative judge’s finding of a due process violation , and REMAND the case
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
to the New York Field Office for further adjudication in accor dance with this
Remand Order.
BACKGROUND
¶2 The appellant was employed by the agency as a GS -6 Police Officer
stationed at Fort Hamilton, New York. Nieves v. Department of the Army , MSPB
Docket No. NY -0752 -17-0240 -I-1, Initial Appeal File (IAF), Tab 1 6 at 12. In
February 2017, t he agency proposed his removal for Conduct Unbecoming a
Police Officer after he was arrested for the offense of driving while intoxicated .
IAF, Tab 19 at 7-10. Among other things, the proposal notice stated that the
appellant had been suspended for 30 calendar days in September 2014 for
Conduct Unbecoming a Police Officer and Failure to Follow a Written Directive .
Id. at 9. The misconduct underlying t hat suspension involved the appellant’s
arrest for slashing the tires of a soldier stationed at Fort Hamilton and then, after
being issued a letter barring him from the base, violating the bar letter. IAF,
Tab 20 at 11 -12, Tab 21 at 4-6. The 2014 decisio n letter noted that the appellant
admitted to consuming alcohol at the time he allegedly slashed the soldier’s tires
and that he had thereafter successfully completed an alcohol treatment program.
IAF, Tab 20 at 6.
¶3 In his written reply to the deciding off icial in this case, the appellant
discussed his prior suspension and argued that that he would be willing to seek
additional treatment to ensure that he would not abuse alcohol in the future. IAF,
Tab 26 at 14-22. According to the deciding official’s mem orandum documenting
the appellant’s oral reply, the appellant also raised these issues at that meeting.
Id. at 9 -10.
¶4 The deciding official removed the appellant, IAF, Tab 17 at 4 -13, and this
appeal followed, IAF, Tab 1. At the hearing requested by the appellant , the
deciding official testified that in the course of reviewing this case he spoke with
the proposing official about the appellant’s potential for rehabilitation. Nieves v.
3
Department of the Army , MSPB Docket No. NY-0752 -17-0240 -I-2, Appeal File
(I-2 AF), Tab 18, Hearing Compact Disc (HCD) (testimony of the deciding
official). He explained that, during this discussion he referred to a previous
incident mentioned in the proposal notice and that the proposing official
confirmed his sus picion that the appellant lacked rehabilitative potential. HCD
(testimony of the deciding official). He also testified that he could not recall
whether he previously disclosed this conversation to either the appellant or his
representative. HCD (testimo ny of the deciding official).
¶5 In her initial decision, the administrative judge concluded that the deciding
official’s hearing testimony established that he had violated the appellant’s due
process rights by engaging in an ex parte communication with the p roposing
official about the appellant’s rehabilitative potential. I -2 AF, Tab 19, Initial
Decision (ID) at 4-7. She therefore reversed the removal. ID at 6-7. The
administrative judge did not discuss the merits of the agency action , the existence
of a nexus, or the reasonableness of the penalty.
¶6 The agency filed a petition for review, arguing that the administrative judge
erred in finding that it failed to provide the appellant with minimum due process
in removing him.2 Petition for Review (PFR) File , Tab 1. The appellant filed a
response opposing the petition. PFR File, Tab 5.
¶7 Thereafter, t he Office of the Clerk of the Board issued a notice to the
parties that clarified that, although the administrative judge had placed the burden
of proving that i t provided the appellant with minimum due process on the
agency, a claim that the agency violated the appellant’s due process rights by
2 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 8. With its
petition for review, the agency provides a certification that it had requested its servicing
human resources processing center to take the actions necessary to provide in terim
relief. PFR File, Tab 1 at 15. The appellant does not contest the agency ’s provision of
interim relief, and thus we need not discuss this matter further. 5 C.F.R. § 1201.116 .
4
engaging in ex parte communications is an affirmative defense for which the
appellant bears the burden of proof. PFR Fi le, Tab 6. The notice informed the
appellant how he could establish that his due process rights were violated or that
the agency committed harmful procedural error, and provided him an opportunity
to submit additional evidence and argument. Id. at 2 -3. The appellant responded
to the notice, reasserting that the agency violated his due process rights. PFR
File, Tab 7. Despite being afforded an opportunity to reply to the appellant’s
submission, the agency did not do so. PFR File, Tab 6 at 3.
DISCUSSION OF ARGUMENTS ON REVI EW
¶8 When, as here, a public employee has a property interest in his continued
employment, the Government cannot deprive him of that interest without due
process. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985).
Due process requires, at a minimum, that an employee being deprived of his
property interest be given “the opportunity to be heard ‘at a meaningful time and
in a meaningful mann er.’” Mathews v. Eldridge , 424 U.S. 319 , 333 (1976)
(quoting Armstrong v. Manzo , 380 U.S. 5 45, 552 (1965)); Buelna v. Department
of Homeland Security , 121 M.S.P.R. 262 , ¶ 16 (2014). Generally, a tenured
Federal employee is entitled to “notice of the charges against him, an explanation
of the employer’s evidence, and an opportunity to present his side of the story”
prior to the deprivation of his property right in continued employment.
Loudermill , 470 U.S. at 546; Buelna , 121 M.S.P.R. 262 , ¶ 17. These
predecisional proceedings “need not definitely resolve the propriety of the
[penalty]” but are o nly “an initial check against mistaken decisions —essentially,
a determination of whether there are reasonable grounds to believe that the
charges against the employee are true and support the proposed action .”
Loudermill , 470 U.S. at 545 -46.
¶9 In interpreting the Supreme Court’s precedent, our reviewing court, the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) , held in Ward v.
5
U.S. Postal Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir. 2011), and Stone v.
Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1376 -77 (Fed. Cir.
1999), that a deciding official violates an empl oyee’s due process rights when he
relies upon new and material ex parte information as a basis for his decisions on
the merits of a proposed charge or the penalty to be imposed. See Mathis v.
Department of State , 122 M.S.P.R. 507 , ¶ 6 (2015). An employee’s due process
right to notice extends to both ex parte information provided to a deciding official
and information known personally to the deciding official, if the information was
considered in reaching the decision and not previously disclosed to the appellant.
Id. But not all ex parte communications rise to the level of due process
violations. Id. Rather, only ex parte communic ations that introduce new and
material information to the deciding official are constitutionally infirm. Id.
¶10 In Stone , the Federal Circuit identified the following factors to be used in
determining if ex parte in formation is new and material: (1) whether the ex parte
information introduced is cumulative, as opposed to new, information;
(2) whether the employee knew of the information and had a chance to respond to
it; and (3) whether the communication was of the type likely to result in undue
pressure on the deciding official to rule in a particular manner. Stone , 179 F.3d
at 1377 ; Mathis , 122 M.S.P.R. 507, ¶ 7. Ultimatel y, the Board must determine
whether the ex parte 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. Stone , 179 F.3d at 1377; Mathi s,
122 M.S.P.R. 507 , ¶ 7 .
¶11 An appellant’s claim that an agency violated his due process rights by
engaging in ex parte communications is an affirmative defense . Helman v.
Department of Veterans Affairs , 856 F.3d 920 , 937 (Fed. Cir. 2017) (finding that
a claim that an appellant’s due process rights were violated is an affirmative
defense) . The Board’s regulations provide that the appellant bears the burden of
proving his affirmative defenses by preponderant evidence. 5 C.F.R.
6
§ 1201.56 (b)(2)(i)(C) ; see Hulett v. Department of the Navy , 120 M.S.P.R. 54 ,
¶¶ 10-11 (2013) (assigning the appellant the burden of proof regarding his
affirmative defen se of a due process violation). Thus, the administrative judge
erred by assigning the agency the burd en of proving that it provided the appellant
with minimum due process. As discussed below, after properly placing the
burden of pro of, we find that the appellant failed to establish that his due process
rights were violated.
The record demonstrates that t he purported ex parte communication introduced
cumulative, as opposed to new, information.
¶12 Regarding the first Stone factor, whether the information was new or
cumulative, the Board has explained that a deciding official does not violate an
employee’s due process right s when he considers issues raised by an employee in
his response to the proposed adverse action and then rejects those arguments in
reaching a decision. Mathis , 122 M.S.P.R. 507 , ¶ 9; Grimes v. Department of
Justice , 122 M.S.P.R. 36 , ¶ 13 (2014) (citing Wilson v. Department of Homeland
Security , 120 M.S.P.R. 686 , ¶ 11 (2014), aff'd , 595 F . App’x 995 (Fed. Cir.
2015) ); see 5 C.F.R. § 752.404 (g)(1) (stating that, in rendering a decision on a
proposed adverse action, the agency will consider the reasons specified in the
notice and any answer of the emp loyee or her representative, or both, made to a
designated official). Moreover, a deciding official does not violate an employee’s
due process rights by initiating an ex parte communication that only confirms or
clarifies information already contained in the record. Mathis, 122 M.S.P.R. 507,
¶ 10 (citing Blank v. Department of the Army , 247 F.3d 1225 , 1229 (Fed. Cir.
2001). On the other hand, information from an ex parte discussion may be
considered new and material if it constitutes a significant departure fr om evidence
already in the record and the deciding official considers it in reaching a decision.
Id., ¶ 11 (citing Young v. Department of Housing and Urban Development ,
706 F.3d 1372 , 1375 -78 (Fed. Cir. 2013)).
7
¶13 Here, as noted previously, the proposal notice outlined the appellant’s prior
disciplinary record . IAF, Tab 19 at 9. Significantly, in concluding that
discussion, the proposing official wrote that he saw “little to no potential for
rehabilitation .” Id. In addition, the appellant received a copy of the proposal and
decision noti ces from his prior suspension. Id. at 16. Furthermore, i n his written
and oral replies to the instant proposed removal, the appellant addre ssed his prior
suspension, argued that a less severe sanction would suffice in this case, and
stated that he would be willing to seek additional treatment to prevent further
alcohol abuse. IAF, Tab 26 at 9 -10, 19, 21.
¶14 The deciding official testified that he spoke with the proposing official
about the appellant’s potential for rehabilitation, noting the appellant’s prior
suspension, and that the proposing official confirmed the deciding official’s
suspicion that the appellant lacked rehabilitative potential . HCD (testimony of
the deciding official). The administrative judge found that the record was unclear
as to what, “precisely,” the proposing official said , and that the agency failed to
proffer evidence indicating that the proposing official “only reite rated”
information contained in the proposal notice. ID at 5 -6. She concluded that the
record supported a finding that the information the proposing official provided to
the deciding official was new because “[i]f [the proposing official’s] additional
information was merely cumulative, there is no reason that it would have been the
sole factor that resolved [the deciding official’s] remaining skepticism.” ID at 6.
¶15 The administrative judge’s analysis was flawed. First, to the extent that the
record is unclear as to what the proposing official told the deciding official, the
lack of clarity weighs against a finding of a due process violation , as it is the
appellant’s bu rden to prove that a violation occurred, not the agency’s burden to
prove the absence of a violation. 5 C.F.R. § 1201.56 (b)(2)(i)(C); see Hulett ,
120 M.S.P.R. 54 , ¶¶ 10-11 (assigning the appellant the burden of proof regarding
his affirmative defense of a due process violation) . Second, contrary to the
administrative judge’s finding that the proposing official’s communication was
8
“the sole factor that resolved [the deciding official’s] remaining skepticism,” ID
at 6, the deciding official testified that, altho ugh the proposing official’s
confirmation of his own suspicion that the appellant lacked rehabilitative
potential was an important factor in leading him to conclude that the appellant
lacked rehabilitative potential, “it was not the sole factor,” HCD (test imony of the
deciding official). The administrative judge gave no indication that she found the
deciding official’s testimony not credible .3 Accordingly, her finding on this issue
appears to stem from a n erroneous view of the deciding official’s testimony .
¶16 The only evidence in the record about the communication between the
deciding official and the proposing official comes from the deciding official’s
hearing testimony . As noted above, he indicated that he talked with the
proposing official about the appe llant’s prior misconduct and the proposing
official reiterated that the appellant lacked rehabilitative potential. HCD
(testimony of the deciding official). As also noted previously, the proposal notice
set forth the appellant’s prior discipline and specifically stated that the proposing
official saw “little to no potential for rehabilitation.” IAF, Tab 19 at 9 .
¶17 Thus, in appropriately applying the correct b urden of proof for this
affirmative defense, we find that the appellant did not show that the deciding
official did anything more than confirm or clarify information already in the
record and disclosed to the appellant. IAF, Tab 19 at 9, 16; see Blank , 247 F.3d
at 1229 . Nor did the appellant show that the proposing official revealed new
information to the deciding official.
3 The deciding official also testified that the proposing official ’s view of the appellant ’s
rehabilitative potential was a consideration among others and that he took it into
consideration. HCD (testimony of the deciding official). None of these statemen ts
supports the administrative judge ’s conclusion.
9
The appellant failed to prove that he was unaware of the ex parte communication
and had no chance to respond to it.
¶18 Regarding the s econd Stone factor, whether the employee knew of the
information and had a chance to respond to it, the Federal Circuit has found that
information raised in an ex parte interview with the deciding official before he
rendered h is decision “more than satisfi e[d] the second Stone factor considering
that [the appellant] neither learned of the ex parte communication, nor had an
opportunity to respond to it before the deciding official.” Young , 706 F.3d
at 1377 . Here, the record is unclear regarding whether the appellant learned of
the ex parte communication before providing his response to the deciding official.
¶19 At the hearing, the appellant’s representative asked the deciding official
whether he had the conversation with the proposing official about the appell ant’s
rehabilitative potential after the appellant had received the proposal and he had
given his reply. HCD (testimony of the deciding official). The deciding official
indicated that he could not recall if the conversation occurred before or after he
received the proposal noti ce from the proposing official. HCD (testimony of the
deciding official). The appellant’s representative also asked the deciding official
whether he had any recollection of disclosin g the conversation with the proposing
official to either the appellant or his representative. HCD (testimony of the
deciding official). The deciding official replied that he did not recall, but noted
that he had a meeting with the appellant and his repre sentative during which they
“discussed a number of things.” HCD (testimony of the deciding official). This
is all of the evidence on this issue as the appellant did not testify about whether
he was informed of the deciding official’s conversation with th e proposing
official.4 Accordingly, based on the record evidence, the appellant failed to
4 On review, the appellant asserts that at the hearing the deciding official affirmed that
he never informed the appellant about his conversation with the proposing official prior
to removing him. PFR Fi le, Tab 1 at 8. We have reviewed the hearing testimony and
find that the deciding official did not make such an explicit statement.
10
establish that he was not informed about the deciding official’s conversation with
the proposing official about his rehabilitative potential.5
The appellant failed t o show that the ex parte communication was “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.”
¶20 Regarding the third Stone factor, whether the commun ication was of the
type likely to result in undue pressure on the deciding official to rule in a
particular manner , the court has recognized that “the lack of such undue pressure
may be less relevant to determining when the ex parte communications deprived
the employee of due process where . . . the [d]eciding [o]fficial admits that the ex
parte communications influenced his penalty determination,” making the
“materiality of the ex parte communications . . . self -evident from the [d]eciding
[o]fficial’s adm ission.” Ward , 634 F.3d at 1280 n.2. Here, the deciding official
testified that the proposing official’s confirmation of his own suspicion that the
appellant lacked rehabilitative potential was an “important factor” in his
determination , but not the “sol e factor.” HCD (testimony of the deciding
official). Because the communication was of some significance , but not the “sole
factor” in the deciding official ’s decision -making process, we find that this factor
sligh tly weighs in the appellant’s favor.
¶21 As explained previously, in considering whether an appellant has
established a due process violation, the Board must determine whether the ex
parte 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. Stone , 179 F.3d at 1377; Mathis , 122 M.S.P.R. 507 , ¶ 7 .
Weighing all the Stone factors, and particularly noting the first factor regarding
whether the ex parte information was new or cumulative , we find that the
5 That the appellant ’s representative seemed to have learned about the conversation for
the first time at the hearing while questioning the deciding official is not evidence. Cf.
Felton v. Department of the Air Force , 106 M.S.P.R. 198 , ¶ 7 (2007) (same).
11
appellant has failed to meet his burden. See Blank , 247 F.3d at 1229 (finding that
when a deciding official initiates an ex parte communication that only confirms or
clarifies information already disclosed to the appellant, the re is no due process
violation); cf. Stone , 179 F.3d at 1376 -77 (indicating that an ex parte
communication to the deciding official does not violate an employee’s due
process rights if the employee is given notice of and an opportunity to respond to
the information communicated).
The appellant failed to prove that the agency committed a harmful procedural
error , and we therefore remand th is appeal so that the administrative judge may
adjudicate the merits of the agency’s case in the first instance .
¶22 If an appellant fails to prove that a deciding official’s ex parte
communications violated his due process rights, the Board must consider whet her
the agency committed harmful procedural error. Putnam v. Department of
Homeland Security , 121 M.S.P.R. 532 , ¶ 10 (2014). A harmful error is an error
by the agency in the application of its procedures that is likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Ronso v. Department of the Navy , 122 M.S.P.R. 391 ,
¶ 14 (2015) ; 5 C.F.R. § 1201.4 (r). The agency’s “procedures” include those
required by statute, rule, or regulation, Jones v. Department of the Treasury ,
93 M.S.P.R. 494 , ¶ 10 (20 03), and also encompass the binding provisions of
applicable collective bargaining agreements , Pleasant v. Department of Housing
and Urban Development , 98 M.S.P.R. 602 , ¶ 8 (2005). It is the appellant’s
burden to prove the existence of a harmful error by preponderant evidence.
5 C.F.R. §§ 1201.4 (r), 1201.56(b)(2) (i)(C), (c)(1).
¶23 Despite being provided the opportunity to do so, the appellant put forward
no argument or evidence that the agency committed harmful procedural error.
PFR File, Tabs 6 -7. We nevertheless considered whether the agency violated
procedures requiring that, in arriving at its decision, it only consider the reasons
specified in the proposal notice and any reply provided by the employee . See
12
5 U.S.C. § 7513 (b); 5 C.F.R. § 752.404 (g). For the reasons discussed above, w e
find that the appellant failed to prove that the deciding official based his decision,
even in part, on reasons not specified i n the proposal notice or discussed in the
appellant’s response . Nor has the appellant established that any purported error
was likely to have caused the agency to reach a conclusion different from the one
it would have reached in the absence or cure of th e error.6 Accordingly, we find
that the appellant failed to es tablish that the agency committed harmful
procedural error.
¶24 The administrative judge did not make findings of fact regarding whether
the agency proved that the appellant committed the charged m isconduct,
established a nexus between the misconduct and the efficiency of the service, or
demonstrated the reasonableness of the imposed penalty. As the hearing officer,
the administrative judge is in the best position to make any necessary factual
findings and detailed credibility assessments. See Mastrullo v. Department of
Labor , 123 M.S.P.R. 110 , ¶ 27 (2015). We therefore remand this appeal to the
administrative judge to resolve these issues in the first instance.
6 Although the deciding official testified that the proposing official ’s communication to
him was an important factor in his determination that the appellant lacked rehabilitative
potential, he noted that it was not the sole factor. HCD (testimony of the deciding
official). Considering the appellant ’s position as a police officer and the fact that he
was arrested for driving while intoxicated —in addition to his previous misconduct also
involving alcohol abuse —we find it unlikely that the deciding officia l would have
mitigated the penalty in the absence of the proposing official ’s communication. IAF,
Tab 17 at 4 -9.
13
ORDER
¶25 For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order, including
the holding of a supplemental hearing regarding the merits of the agency action
and the reasonableness of the penalty.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | NIEVES_ANGEL_D_NY_0752_17_0240_I_2_REMAND_ORDER_2063795.pdf | 2023-08-29 | null | NY-0752 | NP |
2,755 | https://www.mspb.gov/decisions/nonprecedential/EDWARDS_ROSE_MARIE_DC_3443_17_0636_I_1_REMAND_ORDER_2063855.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSE MARIE EDWARDS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-3443 -17-0636 -I-1
DATE: August 29, 2023
THIS ORDER IS NONPRECEDENTIAL1
Kevin L. Owen , Esquire, and Andrew J. Perlmutter , Esquire, Silver Spring,
Maryland, for the appellant.
Patricia Reddy -Parkinson , Esquire, Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal appeal for lack of jurisdiction without a
hearing . For the reasons discussed below, we GRANT the a ppellant’s petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
for review, VACATE the in itial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was a GS-12 Auditor for the agency. Initial Appeal File
(IAF), Tab 8 at 26. On or about May 8, 2016, the appellant submitted to the
agency ’s Civilian Benefits Center an application for basic retirement under the
Civil Service Retirement System (CSRS) , to be effective February 3, 2017 . IAF,
Tab 2 at 2, 9 , Tab 8 at 4, 27 -30. Shortly before s he filed her appl ication , the
appellant had obtained an annuity estimate, using the agency’s Employee Benefits
Information System (EBIS). IAF, Tab 7 at 9 -10, Tab 9 at 4. According to the
EBIS estimate , the appellant could expect to receive an unreduced monthly
annuity of approximately $3,640 upon her February 2017 retirement. IAF, Tab 9
at 4.
¶3 Immediately upon receiving the appellant’s application, the Civilian
Benefits Center assigned the appellant a retirement specialist to help her with the
process. IAF, Tab 2 at 9. According to the appellant, she discussed her plans
with the retirement specialist and informed her that she “was excited about the
monthly annuity amount of $3,640” as reflected in the EBIS estimate. IAF, Tab 7
at 10. The appellant states that the retir ement specialist promised to forward her
a CSRS benefit estimate and service report to review. IAF, Tab 7 at 10.
¶4 Six months passed, and in November 2016, the appellant still had not
received the CSRS benefits estimate and service report. IAF, Tab 7 at 10 -11,
Tab 8 at 4, 15 . The appellant alleges that , on November 18, 2016, she contacted
the retirement specialist again to inquire about the status of this information.
IAF, Tab 7 at 10. According to the appellant, the retirement specialist told her
that s he would mail the estimate and report the following week. Id. The
appellant asserts that, after she failed to receive these documents and her
3
retirement date drew nearer , she continued trying to contact the retirement
specialist, but her calls and emails went unanswered and unreturned . Id. at 10 -11.
¶5 The a ppellant separated from service on February 3, 2017, as scheduled.
IAF, Tab 8 at 26. Approximately 1 month later, on March 1, 2017, the agency
finally mailed the appellant her CSRS benefit estimate and service report. Id.
at 15. These documents indicated that certain period s of part-time service and
service for which the appellant had received a refund of retirement contributions
would not be used in calculating her annuity; theref ore, the appellant’s gross
monthly annuity would be $1,991 —not $3,640 , as reflected in the EBIS estimate .
Id. at 17 -24. The record indicates that, in the end, the Office of Personnel
Management (OPM) determined the appellant’s gross monthly annuity to be
$1,810.00 .2 IAF, Tab 2 at 48.
¶6 On June 30, 2017, the appellant filed a Board appeal, seeking reinstatement
to her Auditor position on the basis that her retirement was involuntary. IAF,
Tab 1. She requested a hearing. Id. The administrative judge noti fied the
appellant of the jurisdictional standard for a constructive removal appeal and the
need to make a nonfrivolous allegation of jurisdiction in order to receive her
requested hearing. IAF, Tab 2 at 2 -5. After the close of the record, the
administra tive judge issued an initial decision, dismissing the appeal for lack of
jurisdiction without a hearing. IAF, Tab 10, Initial Decision (ID). She found that
the agency did not provide the appellant any misinformation, and the appellant
failed to make a no nfrivolous allegation that she reasonably relied on the
inaccurate EBIS annuity estimate when she decided to retire. ID at 7 -9.
2 The agency and OPM notified the appellant of her option to augment the annuity by
making a deposit or redeposit for parts of her non -credited service. IAF, Tab 2
at 39-40, 42, 46 -48. OPM informed the appellant that she could increase her monthly
annuity to $3,350 by m aking a redeposit of $50, 864, or to $3,306 by making a deposit
of $40,421. Id. at 48. However, the appellant determined that she could not come up
with that kind of money on short n otice, so she declined to make a deposit. IAF,
Tab 10 at 15.
4
¶7 The appellant has filed a petition for review, disputing the administrative
judge’s jurisdictional analysis. Petition for Review (PFR) File, Tab 1. The
agency has responded to the petition for review, and the appellant has filed a
reply to the agency’s response. PFR File, Tabs 3 -4.
ANALYSIS
¶8 To establish jurisdiction over a constructive removal appeal, an appell ant
must prove by preponderant evidence that (1) she lacked a meaningful choice in
her resignation or retirement ; and (2) it was the agency ’s wrongful actions that
deprived her of that choice . Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 8
(2013) . Once an appellant makes a nonf rivolous allegation of Board jurisdiction,
i.e., an allegation of fact that, if proven, would establi sh the Board ’s jurisdiction,
she is entitled to a hearing on the jurisdictional issue . Garcia v. Department of
Homeland Security , 437 F.3d 1322 , 1344 (Fed. Cir. 20 06) (en banc); Thomas v.
Department of the Navy , 123 M.S.P.R. 628 , ¶ 11 (2016) .
¶9 The Board has recognized nu merous bases for constructive adverse action s,
including retirement decisions that are based on misinformation. Bean ,
120 M.S.P. R. 397 , ¶¶ 8-9. However, even when an employee retires based on
misinformation, her retirement will only amount to a constructive removal if her
reliance on that misinformation was the fault of the Government. Id., ¶ 9; see
Holser v. Department of the Army , 77 M.S.P.R. 92 , 95 (1997).
¶10 In this case, the administrative judge found that the agency was not at fault
for the appellant’s mi sunderstanding of the amount of annuity that she would
receive upon retirement. ID at 5 -9. The administrative judge found that EBIS
specifically informed the appellant that the annuity estimate that it generated
might be “significantly overstated ” if the appellant had any part -time service or
unpaid deposits or redeposits (of which the appellant had both). ID at 6 -7; IAF,
Tab 8 at 12 . She also observed that EBIS warned the appellant that she “should
not base a decision to retire on the data contained he re.” ID at 7; IAF, Tab 8
5
at 12. The administrative judge further found that, apart from this EBIS report,
which the appellant knew or should have known not to rely on in making a
retirement decision, the agency did not provide the appellant any misleadin g
information to induce her retirement. ID at 7 -9. She concluded that the agency’s
failure to properly counsel the appellant about her retirement was not the same
thing as misinforming her about her retirement and that the appellant’s decision
to retire based on incomplete information did not amount to a constructive
removal. ID at 8 -9.
¶11 On petition for review, the appellant argues that, even in the absence of
affirmative misinformation, lack of information may be sufficient to support a
claim of construc tive removal. PFR File, Tab 1 at 6 -9. We agree with the
appellant that this can be true under certain circumstances. The important
question is not whether the appellant’s theory of the case is based on
misinformation or lack of information ; the important question is how the facts of
the case bear upon the ultimate jurisdictional issues of voluntariness and fault.
See Bean , 120 M.S.P.R. 397 , ¶ 8.
¶12 In this case, we find that the appellant has made a nonfrivolous allegation of
jurisdiction under the theory that she based her retirement on inaccurate
information, which the agency had a duty to correct but did not. “An e mployee
action is considered to be involuntar y if it results from the agency’ s failure to
correct erroneous information that it has reason to know that the employee is
relying on. ” Timberlake v. U.S. Postal Service , 76 M.S.P.R. 172 , 175 (1997) ;
Drummond v. Department of Veterans Affairs , 58 M.S.P.R. 579 , 583 -84 (1993).
As set forth above, the appellant alleged that she informed the retirement
specialist in or around May 2016 that she was “excited” about the $3,640 monthly
annuity estimate that she obtained from EBIS. IAF, Tab 7 at 10. However, over
the next 9 months , the Civilian Benefits Center ignored the appellant’s multiple
requests for an independent annuity estimate and waited until after her separation
6
from service to inform her that the EBIS estimate she was relying on was
overstated by more than 30%. IAF, Tab 8 at 4 -5, 15 -16.
¶13 Even considering the stock warning generated by EBIS that the annuity
estimate might be inaccurate and should not form the basis for a retirement
decision, it appears undisputed that the agency failed to give the appellant any
alternative. IAF, Tab 8 at 4 -5, 15 -16. This is so even though the agency was
required to give the appellant an accurate and timely annuity estimate both under
its own regulations and , if the appellant is to be believed, because the retirement
specialist knew that she was relying on an annuity benefits estimate that might
be incorrect . IAF, Tab 7 at 10; Department of Defense Instruction 1400.25,
vol. 830 § 3(a) (August 22, 2014) ,
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/140025/140025_v
ol830.pdf . Furthermore, even though the appellant knew or should have known
that the EBIS estimate might be unreliable, it is not clear that a reasonable
person in her position might have expected that estimate to be off by more than
30%. Because the agency , despite multiple requests , failed in its obligation to
give the appellant an accurate annuity estimate at any time during the 9 months
leading up to her retirement, the appellant based her retirement decision on the
best (and only) information that she had at the time , which infor mation
ultimately proved to be grossly inaccurate . Whether the appellant acted
reasonably in doing so, and hence whether her retirement amounted to a
constructive removal, are questions that can only be resolved after a hearing .
7
ORDER
¶14 For the reasons di scussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | EDWARDS_ROSE_MARIE_DC_3443_17_0636_I_1_REMAND_ORDER_2063855.pdf | 2023-08-29 | null | DC-3443 | NP |
2,756 | https://www.mspb.gov/decisions/nonprecedential/WINTERS_LESTER_A_CH_0845_17_0382_I_1_REMAND_ORDER_2063883.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LESTER A. WINTERS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-0845 -17-0382 -I-1
DATE: August 29, 2023
THIS ORDER IS NONPRECEDENTIAL1
Lester A. Winters , Miamisburg, Ohio, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for failure to prosecute . For the reasons discussed below,
we GRANT the a ppellant’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).
2
REMAND the case to the regional office for further adjudication i n accordance
with this Remand Order.
BACKGROUND
¶2 On May 30, 2017, the appellant filed a Board appeal of the final decision of
the Office of Personnel Management (OPM) in a Federal Employees’ Retirement
System annuity overpayment case. Initial Appeal Fil e (IAF), Tab 1. He did not
request a hearing. Id. at 2. On June 7, 2017, the administrative judge issued an
order, directing the parties to appear for a telephonic status conference on
June 21, 2017. IAF, Tab 4 at 1.
¶3 However, on June 15, 2017, prior to the date of the scheduled status
conference, OPM filed a motion in which it requested a 30 -day extens ion to
submit its case file, describing this as a request for a 30 -day suspension of the
case. IAF, Tab 5. According to the appellant, an employee of ei ther OPM or the
Merit Systems Protection Board (it is not entirely clear) notified him by telephone
that same day that the appeal was being suspended for 30 days. Petition for
Revie w (PFR) File, Tab 1 at 4. The appellant states that he asked whether the
scheduled status conference was being postponed , and the employee told him that
it was. Id.
¶4 Nevertheless, the administrative judge convened the status conference on
June 21, 2017, as scheduled. OPM appeared for it, but the appellant did not.
IAF, Tab 7 at 1. The admin istrative judge issued an order rescheduling the status
conference for June 23, 2017, reminding the appellant of the need to appear for
the status conference, and notifying him of the possibility of sanctions, up to and
including dismissal of the appeal, if he failed to appear. Id. On June 23, 2017,
the appellant failed to appear at the rescheduled status conference, so on June 26,
2017, the administrative judge issued another order, rescheduling the status
conference for June 29, 2017, an d warning the appellant that his failure to appear
at that conference would result in dismissal for failure to prosecute. IAF, Tab 8.
3
The appellant again failed to appear, and on July 10, 2017, the administrative
judge dismissed the appeal for failure to prosecute. IAF, Tab 9, Tab 10, Initial
Decision.
¶5 The appellant has filed a petition for review, explaining the circumstances
of his failure to appear at any of the three scheduled status conferences. PFR
File, Tab 1. OPM has not filed a response.
ANALY SIS
¶6 An administrative judge may impose sanctions upon a party as necessary to
serve the ends of justice. 5 C.F.R. § 1201.43 . One sanction available for an
appellant’s failure to prosecute his appeal is dismissal with prejudice. 5 C.F.R.
§ 1201.43 (b). Dismissal for failure to prosecute is an extreme sanctio n and
should be reserved for situations where an appellant has failed to respond to
multiple orders or has otherwise exhibited bad faith or intent to abandon his
appeal. Chandler v. Department of the Navy , 87 M.S.P.R. 369 , ¶ 6 (2000) .
Further, an appellant should normally receive explicit warning before an
administrative judge resorts to this sanction. See Wiggins v. Department of t he
Air Force , 113 M.S.P.R. 443 , ¶ 13 (2010) .
¶7 In this case, we find that the appellant’s failure to appear for the multiple
status conf erences was the result of a miscommunication and constituted, at most,
excusable neglect .2 According to the appellant’s sworn and uncontested
statement on review, he stopped monitoring his appeal for 30 days beginning
June 15, 2017, and did not appear at the June 21, 2017 status conference because
he had been informed that the appeal was being suspended and the status
conference postponed. PFR File, Tab 1 at 4. Therefore, the appellant did not
2 OPM was not entirely clear in its motion whether it was requesting a filing extension,
a case processing suspension, or both . IAF, Tab 5 at 1. On June 21, 2017, the
administrative judge granted OPM an extension but did not suspend case processing.
IAF, Tab 7 at 1. This, however, was after the appellant had already stopped monitoring
his appeal based on the June 15, 2017 telephone conversation.
4
receive any of the administrative judge’s multiple orders and warnings, all of
which were issued during that 30 -day period. PFR File, Tab 1 at 4; IAF,
Tabs 7-9. When the 30 -day period ended, on July 15, 2017, the appellant checked
his e -Appeal Online repository, saw that his appeal had been dismissed, and
immediat ely filed a petition for review. PFR File, Tab 1.
¶8 Under these circumstances, we find that it would not serve the ends of
justice to dismiss, for failure to prosecute, this pro se appellant’s retirement
benefits appeal. To be clear, we find nothing improper about the administrative
judge’s handling of thi s case or his decision to dismiss the appeal based on the
facts he knew at the time. Had the administrative judge been aware of the
circumstances surrounding the appellant’s failure to respond to his orders, we do
not think that he would have imposed this sanction in the first place.
ORDER
¶9 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WINTERS_LESTER_A_CH_0845_17_0382_I_1_REMAND_ORDER_2063883.pdf | 2023-08-29 | null | CH-0845 | NP |
2,757 | https://www.mspb.gov/decisions/nonprecedential/TURNER_THOMAS_SF_0731_17_0300_I_1_FINAL_ORDER_2063972.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS TURNER,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
SF-0731 -17-0300 -I-1
DATE: August 29, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas Turner , Hawthorne, California, pro se.
Avis McAllister , Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of the agency’s decision to withdraw
its tentative offer of employment . On petition for review, the appellant reasserts
his argument that the Board has jurisdiction over the appeal and resubmits the
agency’s tentative j ob offer notifications . Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 regu lation 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 1 201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we 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 decis ion. 5 C.F.R. § 1201.113 (b).
¶2 The appellant’s genera l disagreement on review with the administrative
judge’s jurisdictional finding, without more, does not provide a reason to disturb
the initial decision. Petition for Review File, Tab 1 at 4. Moreover, the agency’s
tentative job offer notifications are a lready a part of the record, and thus, they do
not constitute new evidence on which grounds a petition for review may be
granted. Compare i d. at 6-9, with Initial Appeal File, Tab 1 at 6 -7, Tab 6 at 6 -7.
NOTICE OF APPEAL RIGHTS2
You may obtain review of t his final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
appropriate for your situation and t he rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and car efully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decid e which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an ap pellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any a ttorney nor warrants that
any attorney will accept representation in a given 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 appropri ate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protecti on Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may re quest review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew 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 describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 cou rt 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 inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 fo r the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TURNER_THOMAS_SF_0731_17_0300_I_1_FINAL_ORDER_2063972.pdf | 2023-08-29 | null | SF-0731 | NP |
2,758 | https://www.mspb.gov/decisions/nonprecedential/TYSON_MELVIN_AT_0842_18_0218_I_1_FINAL_ORDER_2063269.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MELVIN TYSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0842 -18-0218 -I-1
DATE: August 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melvin Tyson , Riceboro, Georgia, pro se.
Carla Robinson , Washington, D.C., 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
sustained the Office of Personnel Management’ s final decision denying his
application for retirement benefits . On petition for review, the appellant did not
provide any argument or evidence relevant to his claim for retirement benefits .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders ha ve no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly con tributing 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 adminis trative
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 o r legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we 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 init ial decision,
which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
stateme nt of how courts will rule regarding which cases fall within their
jurisdiction. 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 includ ed in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
filing time limits and requirement s. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you h ave questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whic h is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.go v/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representatio n in a given 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 you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives t his decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. distric t courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view 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 describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 comp etent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases wi th the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TYSON_MELVIN_AT_0842_18_0218_I_1_FINAL_ORDER_2063269.pdf | 2023-08-28 | null | AT-0842 | NP |
2,759 | https://www.mspb.gov/decisions/nonprecedential/COATES_TERRI_DEVON_DC_0752_16_0369_C_1_ORDER_2063319.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TERRI DEVON COATES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -16-0369 -C-1
DATE: August 28, 2023
THIS ORDER IS NONPRECEDENTIAL1
Christopher H. Bonk , Esquire, Silver Spring , Maryland , for the appellant.
Jasmin A. Dabney , Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER
¶1 The agency has filed a pe tition for review of the compliance initial decision
that granted the appellant’s petition for enforcement and ordered the agency to
pay the appellant $10,187.88 in accordance with a settlement agreement between
the parties . For the reasons discussed below, we DENY the agency’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
review. We AFFIRM the compliance initial decision , except as expressly
MODIFIED to address the invalidity of the addendum to the settlement agreement
and the material nature of the agency’ s breach . We ORDER the agency to file
evidence of compliance within 45 days.
BACKGROUND
¶2 On February 21, 2016, the appellant filed an appeal with the Board alleging
that the agency constructively suspended her and failed to re store her to duty after
recovering from a compensable injury. Coates v. U.S. Postal Service , MSPB
Docket No. DC -0752 -16-0369 -I-1, Initial Appeal File (IAF), Tab 1. In February
2017, the parties entered into a settlement agreement. IAF, Tab 25 at 4-9. The
administrative judge iss ued an initial decision on February 23, 2017, dismissing
the appeal as settled and entering the agreement into the Board’s record for
enforcement purposes. IAF, Tab 27, Initial Decision (ID) .
¶3 Relevant portions of the settlement agreement state, in part :
a. Following receipt by the Agency of a fully executed copy of this
Agreement, the Agency shall pay to Appellant the total gross
amount of Sixty Five Thousand Dollars ($65,000) in compensation
for any and all claims of damages. The Parties have agreed t hat
payment of said total amount shall be accomplished by and through
the following two (2) processes:
1. Payment of Back Pay : The Agency agrees that Appellant shall
be paid back pay for all times Appellant was placed in Leave
Without Pay “LWOP” status and not paid her regular work salary
during the time period of December 1, 2015, through July 31,
2016. Said amount shall be paid to Appellant by and through pay
adjustments and will, accordingly, be subject to all usual and
customary income tax and other wi thholdings and reported to the
Internal Revenue Service on Form W -2. Any payment
calculations shall include the reinstatement of any applicable
leave Appellant would have otherwise accrued or been entitled to
during the time period provided above;
3
2. Balance Payment : Following its above computation and
payment of back pay to Appellant, the Agency shall make a
single, lump sum payment of the gross balance (if any) between
Sixty Five Thousand Dollars ($65,000) minus ( -) the total gross
amount of back pay computed as owed to Appellant. Said lump
sum shall be paid by check to Appellant [.]
IAF, Tab 25 at 4 -5.
¶4 On September 2 6, 2017, in accordance with the settlement agreement, the
agency paid the appellant $40,302.13 in back pay. Coates v. U.S. Postal Service ,
MSPB Docket No. DC -0752 -16-0369 -C-1, Compliance File (CF), Tab 1 at 19-24.
That left $24,697.87 to be paid by the agency to the appellant in a lump sum. The
agency subjected this lump sum payment to $10,187.88 in withholdings , which
included : $6,174.47 in Federal taxes; $2,124.02 in state taxes ; $1,531.27 in
Social Security; and $358.12 in Medicare. Id. at 28 -29. As a result, for the lump
sum payment portion of the settlement agreement , the agency paid the appellant
$14,509.99 on September 27, 2017 . Id. at 25, 28.
¶5 On October 4, 2017, the appellant, through her representative, advised the
agency that it did not fulfill its obligations under the agreement, as the lump sum
payment had tax es and other withholdings deducted before payment was made .
Id. at 29 -30. The appellant sought $10,187.88 from the agency , which was the
total of the withholdings taken from the lump sum payment. Id. at 29. In
response, the agency conceded that it processed the lump sum payment as “semi
back pay” and informed the appellant that it would prepare an addendum to the
settlement agreement to process the remaining payment . Id. at 29. The agency
sent the appellant an unsigned addendum to the settlement agreement on
October 24, 2017 . CF, Tab 1 at 31 -32; Petition for Review ( PFR) File, Tab 2
at 21. The appellant and her representative signed the a ddendum and returned it
to the agency for signature on November 10, 2017. CF, Tab 1 at 31 -32; PFR File,
Tab 2 at 21. A copy of the addendum signed by both parties was n ever entered
into the Board’s record.
4
¶6 On December 1, 2017, the agency advised the appellant that it would not
process any additional payment and provided her with instructions on how to seek
Federal and state tax exemptions for the amount of taxes withh eld from the lump
sum payment. CF, Tab 1 at 33 -34. Because of this, o n December 29, 2017, the
appellant advised the agency that it was in breach of the settlement agreement .
Id. at 36 -37. The agency responded on the same day and claimed that it complie d
with the agreement . Id. at 35 -36.
¶7 The appellant filed a petition for enforcement with the Board on
February 28, 2018 , alleging that the a gency breached the agreement because it
subjected the lump sum payment to $10,187.88 in taxes and other withholdings .2
CF, Tab 1. After the parties filed written pleadings on the matter, the
administrative judge issued a compliance initial decision, grant ing the appellant’s
petition for enforcement and order ing the agency to pay the app ellant (care of her
representative) $10,187.88 . CF, Tabs 3-4, 5, Compliance Initial Decision (CID).
The agency’s petition for review and the appellant’s r esponse in opposition
followed. PFR File, Tabs 1 -2, 4.
DISCUSSION OF ARGUME NTS ON REVIEW
The addend um to the settlement agreement is invalid , as it was not executed in
accordance with the terms of the agreement regarding modifications .
¶8 A settlement agreement is a cont ract, meaning the Board will adjudicate a
petition to enforce a settlement agreement in accordance with cont ract law.
Walker -King v. Department of Veterans Affairs , 119 M.S.P.R . 414, ¶ 9 (2 013).
The clear terms of a settlement agreement are controlling. Aylward v. U.S. Postal
Service , 85 M.S.P.R. 40 , ¶ 5 (1999). In this case, t he settlement agreement states
2 Per the terms of the settlement agreement, the appellant could not initiate an
enforcement ac tion until 30 days after she contacted the agency’s Deputy Managing
Counsel , which occurred on December 29, 2017. IAF, Tab 25 at 7; CF, Tab 1 at 35 -37.
The appellant al so needed to provid e the agency with a reasonable time to cure any
perceived defect. IAF, Tab 25 at 7.
5
that any agreement s made after its execution “are not binding unless in writing
and signed by both the Appellant and the Agency.” IAF, Tab 25 at 8. The
agreement further states that it may be amended “only by express written
agreement signed by the Parties.” Id.
¶9 The rec ord shows that the parties contemplated executing an addendum to
the settlement agreement to outline the parameters of the agency paying the
appellant the portion of the lump sum payment that was withheld. CF, Tab 1
at 29; PFR File, Tab 2 at 21. The appe llant and her representative signed an
addendum prepared by the agency. CF, Tab 1 at 31 -32. The agency ’s position on
whether the addendum is valid is conflicting; as it stated that the parties entered
into the addendum and later argue d that it never sign ed the addendum , meaning
there was no modification of the original agreement. CF, Tab 3 at 7; PFR File,
Tab 1 at 7. Due to this uncertainty and the lack of a copy of the fully executed
addendum to the settlement agreement in the record, the Board ordered the parties
to submit a copy. PFR File, Tab 5. Both parties responded and affirmed under
the penalty of perjury that neither possesses a fully executed copy of the
addendum to the settlemen t agreement. PFR File, Tab 6 at 4, Tab 7 at 4-5. Under
these c ircumstances , there is insufficient evidence in the record to conclude that
the parties modified the settlement agreement in accordance with its terms. As
such, the addendum referenced in this case is not enforceable
¶10 In the compliance initial decision, the administrative jud ge stated that the
parties entered into an addendum to the settlement agreement. CID at 3 -4.
However, the administrative judge found the agency in breach because it failed to
fulfill the express terms of the original agreement and n ot due to any
noncompliance with the addendum . CID at 3 -5. Therefore, any error by the
administrative judge in referring to the addendum was not prejudicial to a party’s
substantive rights and is therefore not a basis to overturn the compliance initial
decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
6
(1984) (outlining that an adjudicatory error that is no t prejudicial to a party’s
substantive rights provides no reason for reversal of an initial decision).
The appellant proved that the agency materially breached the settlement
agreement and that the Board should order enforcement of the agreement .
¶11 As the party seeking enforcement, t he appellant bears the ultimate burden of
proving that the agency failed to comply with the settlement agreement by
preponderant evidence. Pokrivnak v. U.S. Postal Service , 93 M.S.P.R. 134 , ¶ 9
(2002). The agency must still produce relevant, material, and credible evidence
of its compliance with an agreement upon the filing of a petition for enforcement .
Vaughn v. U.S. Postal Service , 97 M.S.P.R. 97 , ¶ 7 (2004 ); Pokrivnak ,
93 M.S.P.R . 134, ¶ 9.
¶12 As found by the administrative judge in the compliance initial decision, the
appellant met her burden of p roving that the agency did not comply with the
settlement agreement. CID at 3 -5. The express terms of the se ttlement agreement
are clear —the agency agreed to pay the appellant a specific amount of back pay
pursuant to a calculation set forth in the provision entitled “Payment of Back
Pay.” IAF, Tab 25 at 4-5. The agency then agreed in a provision entitled
“Balance Payment” that the gross balance of $65,000 minus the gross back pay
amount would be paid to the appellant in a lump sum. Id. at 5. Unlike the back
pay provision, the “Balance Payment” provision for the lump sum payment
included no language regarding withholdings of any kind . Id. at 4-5.
¶13 The agency paid the appellant $40,302.13 in gross back pay, meaning the
gross balance between $65,0 00 and the gross back pay amount was $24.697.87.
CF, Tab 1 at 19, 25 , 28. Instead of paying the appellant $24,697.87 in a lump
sum payment as outlined in the settlement agreement, the agency unilaterally
determined to treat this payment as “semi back pay ” and deducted tax es and other
7
withholdings from it in the amount of $10,187. 88.3 Id. at 28-29. T he payment
remitted by the agency to the appellant to satisfy the “Balance Payment”
provision of the settlement agreement totaled $14,509.99 and not $24.697.87. Id.
Thus, the agency breached the settlement agreement.
¶14 Because the agency breached the agreement, a determination must be made
as to whether it was material. Herring v. Department of the Navy , 90 M.S.P.R.
165, ¶ 11 (2001) . Whether there has been a material breach depends on the extent
to which the injured party is deprived of a benefit reasonably expected from the
agreement. Leeds v. U.S. Postal Service , 108 M.S.P.R. 113 , ¶ 4 (2008) . A breach
is material when it relates to a matter of vital importance or goes to the essence of
the agreement. Galloway v. Department of Agriculture , 110 M.S.P.R. 311 , ¶ 7
(2008) ; Herring , 90 M.S.P.R. 165 , ¶ 11.
¶15 Here, t he lump sum payment was unquestionably one of the primary
benefits of the agreement for the appellant. The appellant anticipated receiving a
lump sum payment from the agency, without any withholdings , in the amount of
the gross balance of $65,000 minus the gross back pay amount . It was reaso nable
for the appellant to expect to receive this payment and use it as she saw fit . The
agency’s noncompliant action of subjecting the lump sum payment to
withholdings deprived the appellant of this ability. This also seemingly caused
3 The agency does not defi ne what it means by “semi back pay.” Under the Back Pay
Act, when an agency agrees to compensate an employee for back pay, it is to pay the
amount of pay, allowances, or differentials that she would have earned or received
during the applicable period if the personnel action had not occurred . 5 U.S.C.
§ 5596 (b)(1)(A)(i). In a back pay payment, an agency is required to deduct appropriate
amounts for ret irement, Medicare, F ederal and state taxes, and any payment the
employee received for accrued annual leave. Hargett v. Department of the Navy ,
82 M.S.P.R. 180 , ¶ 6 (1999). The lump sum payment provision in this case does not
define what personnel action it is rendering paym ent for, nor did the agency make all
the appropriate contributions and deductions as if the payment was actually back pay as
it alleges . IAF, Tab 25 at 4-5; CF, Tab 1 at 28. Instead, the agency only made
deductions for Federal and state taxes, Social Sec urity, and Medica re. CF, Tab 1 at 28.
8
tax concerns and other complications for the appellant. CF, Tab 4 at 4 ; PFR File,
Tab 4 at 9. Clearly , the agency material ly breached the agreement.
¶16 Because there is a material breach, the nonbreaching party , which is the
appellant in this case, may elect between recession of the ag reement and
reinstatement of her appeal, or alternatively, enforcement of the agreement.
Wonderly v. Department of the Navy , 68 M.S.P.R. 529 , 532 (1995). In this
matter, t he appellant seeks enforcement of the agreement and payment in the
amount of $10,187.88, the sum wrong ly withheld from the lump sum payment .
CF, Tab 1 at 8.
The agency raises no basis to grant its petition for review.
¶17 In its petition for review , the agency argues that the settlement agreement is
devoid of any provision wherein it agreed that the lump sum payment to the
appellant would not be subject to withholding s. PFR File, Tab 1 at 10. In
construing the terms of a settlement agreement, the words of the agreement are of
paramount importance in determining the intent of the parties at the time they
contracted. Boutin v. U.S. Postal Service , 70 M.S.P.R. 376 , 378 (1996).
¶18 Upon review, we find this argument proffered by the agency unpersua sive.
In the settlement agreement, the agency agreed to pay the appellant a “single,
lump sum payment of the gross balance (if any) between Sixty Five Thousand
Dollars ($65,000) minus ( -) the tota l gross amount of back pay . . . .” IAF,
Tab 25 at 5. The term “gross” m eans “undiminished by deduction; entire. ”
Black’s Law Dictionary (10th ed. 2014 ). Further, h ad the parties intended for the
entire payment in the settlement agreement to be treated as back pay and thus
subject to deductions and withholdings , there would have been no reason for two
distinct payment provisions ; rather, the parties would have agreed to a payment of
$65,000 in back pay . The “Payment of Back Pay” provision of the agreement
specifically outlined that the agency wa s to provide the appellant with back pay
for a defined period that the appellant was carried in a LWOP status , and included
9
language that the back pay payment was “subject to all usual and customary
income tax and other withholding s . . . .” IAF, Tab 25 at 4-5. The “Balance
Payment” provision of the agreement for the lump sum payment included no
language regarding withholdings. Id. at 5. Lump sum payments not subject to
withholdings are commonplace in settlement agreements before the Board.
¶19 The agency also asserts that paying the appellant the amount of
withholdings would cause it to pay more than the amount agreed upon in the
settlement agreement. PFR, Tab 1 at 12 . However, t he agency cannot
unilaterally decide how to make the payment to the appe llant, in violation of the
settlement agreement, and then successfully argue that its obligations are met.
The agency remains free to work with the taxation authorities to which it sent the
improper withholdings from the lump sum payment to recoup the wit hholdings
amount . For the reasons described herein, granting the appellant’s petition for
enforcement does not entitle the appellant to more than what is provided for by
the terms of the settlement agreement. Lastly , the agency’s unsubstantiated claim
that the appellant may owe funds to her attorney is irrelevant to the se
conclusions . Id. at 11, 13.
¶20 Because we have found the agency in noncompliance, the agency is being
directed to file evidence of compliance with the Clerk of the Board and the
appellant will be afforded the opportunity to respond to that evidence. The
appellant’s petition for enforcement will be referred to the MSPB’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of Gene ral 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 appell ant’s petition for review of the
10
compliance initial decision4 and setting forth the appellant ’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
¶21 We ORDER the agency to submit to the Clerk of the Board within 45 days
of the date of this decision satisfactory evidence of compliance with this decision.
This evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183 (a)(6)(i), including submission of evidence and a narrative statement
of compliance. The agency’s submission must include proof that it properly paid
the appellant by check the amount of $10,187.88.5 We ORDER the appellant to
cooper ate in good faith in the agency’ s efforts to make this pa yment and to
provide all necessary information the agency requests to help it carry out the
Board’ s Order. The agency must serve all parties with copies of its submission.
¶22 The Board will assign a new docket number to this matter, DC-0752 -16-
0369 -X-1. All subsequent filings should refer to the new docket number set forth
above 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
Submis sions 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 .
4 The subsequent decision may incorporate the analysis and findings set forth in this
order.
5 Because the addendum to the settlement agreement is invalid as outlined herein, the
payment is to be made to the appellan t as set forth in the settlement agreement. IAF,
Tab 25 at 5. The Board makes no representation as to the tax consequences of this
payment, or to the tax consequences if the agency recoups from taxation authorities the
withholdings amount from the portio n of the lump sum payment already made. The
appellant may wish to seek the guidance of a tax professional on these matters.
11
¶23 The appe llant may re spond to the agency’ s evidence of compliance within
20 days of the date of service of the agency’ s submission. 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 he is satisfied with the agency ’s actions
and dismiss the petition for enforcement.
¶24 The agency is reminded that , if it fails to provide adequate evidence o f
compliance, t he responsible agency official and the agency ’s representative may
be required to appear before 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 (c). The Board ’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive p ayment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204 (e)(2)(A).
¶25 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. 7703 (a)(1 ). Upon final resolution of the remaining
issues in this petition for enforceme nt by the Board, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COATES_TERRI_DEVON_DC_0752_16_0369_C_1_ORDER_2063319.pdf | 2023-08-28 | null | DC-0752 | NP |
2,760 | https://www.mspb.gov/decisions/nonprecedential/BROWN_TRAVIS_SF_0752_22_0091_I_1_REMAND_ORDER_2063324.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TRAVIS BROWN,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.
DOCKET NUMBER
SF-0752 -22-0091 -I-1
DATE: August 28, 2023
THIS ORDER IS NONPRECEDENTIAL1
Travis Brown , San Diego, California, pro se.
Emma Broches , Esquire, Jason Despain , Esquire, and Marianne
Perciaccante , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant petition s for review of the initial decision, which dismissed as
untimely filed with no showing of good cause for the delay his appeal challenging
the agency’s continuation of his indefinite suspension. 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).
2
below, we GRANT the appellant’s petition for review, REVERSE the initial
decision, and REMAND the appeal for further adjudication.
BACKGROUND
¶2 The appellant is employed as a GS -0967 -11 Passport Specialist at the
agency’s San Diego Passport Agency. Initial Appe al File (IAF), Tab 1 at 1. His
position requires a security clearance. Id. at 9. On March 1, 2017, the agency
suspended the appellant’s security clearance pending the outcome of an
investigation and placed him on administrative leave . Id. at 9-10. By letter dated
May 1, 2017, the agency proposed to indefinitely suspend the appellant without
pay for failure to maintain a condition of employment , i.e., his security clearance ,
because the suspension of his security clearance rendered him unable to perform
the duties of his Passport Specialist position . Id. By letter dated June 30, 201 7,
the agency sustained the proposed indefinite suspension and placed the appellant
on indefinite suspension without pay, effective th e same day. Id. at 14 -16. The
appellant did not appeal the imposition of the indefinite suspension. Id. at 16.
¶3 On Marc h 31, 2021, the appellant’s union representative filed a final step
grievance on the appellant’s behalf through the parties’ negotiated grievance
procedure challenging the agency’s continuation of his ind efinite suspension.
IAF, Tab 3 at 48. On October 2 5, 2021, the arbitrator dismissed the grievance
because it was filed more than 30 days after the effective date of the indefinite
suspension . IAF, Tab 1 at 25 -35. The arbitrator noted that another viable path
the appellant may have would be filing a Boar d appeal . Id. at 35.
¶4 On November 9, 2021, the appellant filed the instant Board appeal of the
continuation of his indefinite suspension .2 IAF, Tab 1 . Without holding a
2 The appellant indicated that the agency sustained its decision to revoke his security
clearan ce as of November 3, 2021, and that he “requested to appeal this decision and
appear before the Security Appeals Panel with a date yet to be determined.” IAF, Tab 3
at 12.
3
hearing, t he administrative judge dismiss ed the appeal as untimely filed with no
showing of good cause for the delay . IAF, Tab 9.
¶5 The appellant has petition ed for review of the initial decision . Petition for
Review ( PFR ) File, Tab 1 at 4. The agency has respon ded to the petition and to
an order issued by the Office of the Clerk of the Board .3 PFR File, Tabs 3-5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The appellant asserts that, under Jones v. U.S. Postal Service , 65 M.S.P.R.
306, 313 -14 (1994) , the Board should consider his appeal despite the
administrative judge’s decision to dismiss it as untimely filed. PFR File, Tab 1
at 4. We a gree. In the absence of notice to the appellant of a right of appeal, an
appellan t’s “diligent action in filing promptly upon learning of their right of
appeal sufficed to preserve their right.” Jones , 65 M.S.P.R. at 313. The agency
did not notify the appellant of such a right, nor did it take any action that would
have ended the ind efinite suspension, which has lasted for over 6 years. The
appellant , acting pro se, filed this Board appeal 2 weeks after an arbitrator
suggested that he may have a right to appeal the matter to the Board. IAF, Tab 1,
Tab 3 at 33 . Under the se circumsta nces , we find that the appellant’s right of
appeal has been preserved , and we reverse the initial decision . See, e.g. , Sikes v.
Department of the Navy , 2022 MSPB 12 , ¶ 7 n.2 (finding good cause for the
untimely filing of an appeal of a continuation of an indefinite suspension when
the appellant received no notice of a right to appeal such an action to the Board).
¶7 An indefinite suspension, to be valid, must have an ascertainable end.
Rawls v. U.S. Postal Service , 98 M.S.P.R. 98, ¶ 6 (2004). This “ascertainable
end” requirement derives from the statutory definition of a “suspension” as “the
placing of an employee, for disciplinary reasons, in a temp orary status without
3 In its response to the order, the agency’s representative asserts that “[a]s of J une 26,
2023, the Agency has not rendered a final decision on Appellant’s eligibility for a
security clearance.” PFR File, Tab 5 at 4.
4
duties and pay.” 5 U.S.C. § 7501 (2) (emphasis added); see 5 U.S.C. § 7511 (a)(2);
Martin v. Department of the Treasur y, 12 M.S.P.R. 12 , 17 (1982) , aff’d in part,
rev’d in part on other grounds sub nom. Brown v. Department of Justice ,
715 F.2d 662 (D.C. Cir. 1983), and aff’d sub nom. Otherson v. Department of
Justice , 956 F.2d 1151 , 1155 (Fed. Cir. 1992) ; Martin modified on other grounds
by Barresi v. U.S. Postal Service , 65 M.S.P.R. 656, 663 n.5 (1994) . Because a
suspension must be temporary , “an action imposed with no ascertainable end in
sight is not sustainable as a suspension, because of [a] failure to meet the
criterion of temporariness.” Martin , 12 M.S.P.R. at 17. An indefinite suspension
may be found to have been reasonable when imposed, although facts later
developed may cause the Board to find that an agency acted unreasonably in
failing or refusing to vacate the action. Id. at 20. Board order s that sustain
indefinite suspensions either explicitly or implicitly mandate that the agency
move expeditiously and that the suspension terminate upon the occurrence of the
condition subsequent. Id. Permitting an agency to take an unlimited amount of
time to determine what action to take while keeping the appellant on an indefinite
suspension contravenes the requirement that an indefinite suspension have an
ascertainable end. Drain v. Department of Justice , 108 M.S.P.R. 562 , ¶ 8 (2008);
Arrieta v. Department of Homeland Security , 108 M.S.P.R. 372 , ¶ 8 (2008). The
agency has the burden of proving the validity of its continuing indefinite
suspension. Farris v. Department of the Air Force , 29 M.S.P.R. 518 , 520 (1985).
¶8 Here, the agency indefinitely suspended the appellant, effective June 30,
2017, for failure to maintain a condi tion of employment. IAF, Tab 6 at 156 -62.
The agency indicated that the suspension would remain in effect until it “has
made a final determination concerning your eligibility for a security clearance
and/or there is sufficient evidence either to return y ou to duty or support
additional administrative action.” Id. at 165. Thus, the agency appears to have
set forth three separate and distinct bases that would end the appellant’s indefinite
suspension. Unlike an indefinite suspension based on the resoluti on of possible
5
criminal misconduct , all of these bases for ending the indefinite suspension are
within the control of the Department of State as a whole, which is the agency
captioned before the Board in this case . As noted above, as of the date of this
Remand Order, the appellant has been indefinitely suspended for over 6 years ,
and there is presently no end in sight . While the agency may have “broad
discretion” to determine how much time is required to evaluate whether the
revocation of a suspended clea rance is appropriate, Ryan v. Department of
Homeland Security , 793 F.3d 1368 , 1374 (Fed. Cir. 2015) , such discretion may
not be unfettered , id. (noting that the petitioner did not show that the agency’s
delay was “clearly excessive or unreasonable,” and observing that security
clearance investigations “often take up to a year” ).
¶9 Accordingly, we remand this appeal for further adjudication. On remand,
the agency is ordered to submit evidence4 and argument to the administrative
judge proving by preponderant evidence the validity of the indefinite suspension
by showing that there is an ascertainable end in sight such that the action can
meet the statutory criterion of temporariness. At the very least, the agency m ust
explain what steps it is taking to end the indefinite suspension and indicate when
it expects the indefinite suspension to end. If the agenc y does not meet this
burden, the administrative judge shall reverse the indefinite suspension, effective
upon the date on which the administrative judge finds that the indefinite
suspension ceased to be temporary.
¶10 The agency is also ordered on re mand to submit evidence and argument to
the administrative judge proving by preponderant evidence that the conditions
supporting the continuation of the indefinite suspension are still in effect, i.e.,
that the agency has not made a final determination concerning the appellant’s
eligibility for a security clearance, there is not sufficient evidence to return the
appellant to duty, and there is not sufficient evidence to support additional
4 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).
6
administrative action. Regard ing th e second of these possible bas es for endi ng
the indefinite suspension , we note that the appellant and the agency entered into a
last chance agreement under which the agency agreed to hold the appellant’s
proposed removal in abeyance if he satisfied certain conditions. IAF, Tab 1
at 20-23. The a ppellant appears to have satisfied those conditions. Id. at 24. We
therefore order the agency to explain to the administrative judge on remand why
the appellant’s successful completion of the last chance agreement does not
constitute sufficient evidence to “return [him] to duty,” if not in his former
position , then in a position that does not require a security clearance if a statute,
regulation, or agency policy manifests a right to transfer to such a position .
¶11 After receipt of the above evidence and argument from the agency, as well
as any submission filed by the appellant, the administrative judge shall take any
further action necessary to adjudicate the case and issue a new initial decision
that determines whe ther the agency’s indefinite suspension action meets the
statutory criterion of temporariness and, if so, whether the conditions subsequent
that would end the indefinite suspension have been met .
ORDER
¶12 For the reasons discussed above, we remand this case t o the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROWN_TRAVIS_SF_0752_22_0091_I_1_REMAND_ORDER_2063324.pdf | 2023-08-28 | null | SF-0752 | NP |
2,761 | https://www.mspb.gov/decisions/nonprecedential/TEN_PAS_TIMOTHY_PH_0752_17_0430_I_1_FINAL_ORDER_2063412.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY TEN PAS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -17-0430 -I-1
DATE: August 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy Ten Pas , Topsfield, Massachusetts, pro se.
Joshua R. Carver , Esquire, Augusta, Maine, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant and the agency have both filed petition s for review of the
initial decision, which reversed the appellant’s removal . For the reasons
discussed below, we DENY the appellant’s petition , GRANT the agency’s
petition, AFFIRM the initial decision as to the appellant’s claim of disability
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
discrimination, and REVERSE t he initial decision as to the removal action . The
appellant ’s removal is SUSTAINED .
BACKGROUND
¶2 The appellant served as a GS -13 Support Services Chief before his August
2017 removal for excessive absence . The facts leading up to the removal are
largely undisputed.
¶3 On May 13, 2016, the appellant stopped coming to work based on medical
documentation indicating that he was suffering from severe depression and
anxiety. The appellant’s doctor stated that he was incapacitated and that the
period of his incapacitation was expected to be lengthy, and he recommended that
the appellant remain off work for 2 months and then be reevaluated. Initial
Appeal File (IAF), Tab 10 at 86. The appellant requested and was granted
2 months of sick leave. Id. at 87. Approximately e very 2 months thereafter, the
appellant requested an additional 2 months of leave which t he agency granted
(sick leave and annual leave, including F amily Medical Leave Act (FMLA ) leave )
until all his leave was exhausted, after which he requested and was granted leave
without pay (LWOP) . Id. at 88 -98 On March 10, 2017, in response to the
appe llant’s most recent request for additional LWOP , the agency advised him that
he had not submitted medical documentation sufficient to support his request and
that he should do so. The agency explained that the appellant had the following
options : request advanced sick or annual leave , LWOP, or leave under the
agency’s Voluntary Leave Transfer Program , request a reasonable
accommodation, retire, apply for disability retirement, resign , or seek services
under the Employee Assistance Program . IAF, Tab 9 at 58-60. Based on the
appellant’s requests , with the barest supporting evidence , the agency continued to
grant him LWOP. Id. at 52. On May 31, 2017, again in response to the
appellant’s request for more LWOP, the agency approved his request in part, for
the period from May 3 -31, 2017 , but advised him that, because he had exhausted
3
all his leave, and because his absence had existed past a reasonable timeframe, he
was to return to duty on June 12, 2017, and that his failure to do so “may lead to
disciplinary action up to and including removal.” Id. at 41. The agency again
described the appellant’s options as it had in the earlier letter. Id. at 41 -42. In
response, the appellant stated that he had not been approved to return to work,
and he again requested additional LWOP. Id. at 31.
¶4 On June 29, 2017, when the appellant had not returned to duty, the agency
proposed his removal for excessive absence. Id. at 19. In the narrative, the
agency stated that from May 3, 2016 , to date , he had used 1,927.6 hours o f
approved non -FMLA leave, that is, 356.3 hours of annual leave, 819.3 hours of
sick leave, and 752 hours of LWOP. The agency acknowledged that the absences
were for a compelling reason beyond the appellant’s control such that its approval
or disapproval was immaterial , but stated that the absences had continued for an
unreasonable amount of time and that the appellant had been warned that adverse
action might be initiated if he did not return to duty. The agency add ed that th e
appellant’s position needed to be filled by an employee available for duty on a
regular, full -time basis and that his ex tended absence had created undue hardship
on his team and directly impacted the efficiency with which the team provided
services t o ve terans. Id. The appellant responded with a brief medical note
stating that he could still not return to duty and request ed an additional 2 months
of LWOP. Id. at 18. The agency granted in part the request for LWOP , allowing
the appellant to remain in t hat status during the 30 -day notice period of the
proposed removal . Id. at 16. However, on August 1, 2017, the agency issued a
letter of decision finding the charge sustained and stating that the appellant would
be removed, effective August 9, 2017. Id. at 9.
¶5 The appellant filed an appeal, IAF, Tab 1, and requested a hearing. Id. at 2.
In addition to challenging the agency’s action, he alleged that it was based on
disability discrimination under a failure -to-accommodate theory. Id.; IAF,
Tab 20.
4
¶6 There after, the administrative judge issued an initial decision in which he
first found that most of the elements of the charge were largely undisputed, that
is, that the appellant was absent for compelling reasons beyond his control so that
agency approval or disapproval was immaterial because he could not be on the
job and that his absences had continued beyond a reasonable time . IAF Tab 31,
Initial Decision (ID) at 6. Nevertheless, the administrative judge reversed the
agency’s action on the basis that it did not provide the appellant with “adequate
notice that a disciplinary action was potentially f orthcoming.” ID at 1, 6 -10, 12.
The administrative judge further found that the appellant failed to establish his
claim of disability discrimination. ID at 10-11.
¶7 The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 3, and the appellant has filed petition for review, PFR File, Tab 1, to which
the agency has responded , PFR File, Tab 5.
ANALYSIS
The agency proved the c harge .
¶8 To prove a charge of excessive absences, an agency must establish that:
(1) the employee was absent for compelling reasons beyond his control so that
agency approval or disapproval was immaterial because the employee could not
be on the job; (2) the absen ce continued beyond a reasonable time, and the agency
warned the employee that an adverse action could be taken unless the employee
became available for duty on a regular full -time or part -time basis; and (3) the
position needed to be filled by an employee available for duty on a regular
full-time or part -time basis. Gartner v. Department of the Army , 104 M.S.P.R.
463, ¶ 9 (2007); Cook v. Department o f the Army , 18 M.S.P.R. 610, 611 -12
(1984).
¶9 The parties do not dispute on review the administrative judge’s finding s that
the appellant was absent for compelling reasons beyond his control as a
5
consequence of his depression and anxiety2 and that he was absent for longer than
a reasonable time, specifically , for more than 1900 non -FMLA hours.3 PFR File,
Tabs 1, 3; ID at 7. We discern no reason to disturb these findings which show
that the administrative judge considered the evidence as a whole , drew
appropriate inferences, and made reasoned conclusions . See Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98 , 105-06 (1997); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357 , 359 (1987).
The agency provided sufficient warning that an adverse action could be
taken unless the appellant became available for duty .
¶10 In finding that the agency’s notice to the appellant was not adequate, the
administrative judge relied on its May 31, 2017 letter. He acknowledged that it
directed the appellant to return to duty on June 12, 2017, and cautioned him that
failure to do so may lead to discipline, up to removal , but t he adminis trative
judge found that the agency’s offering the appellant “other options” immediately
after the order to return to work fatally undermined “any hope” that the letter
served notice that he must return to work. ID at 8. The administrative judge
further found that the agency’s prior letter to the appellant, the letter of March 10,
2017, diluted the impact of the May 31 , 2017 letter. ID at 9.
¶11 On review, the agency argues that it did, in the May 31 , 2017 letter, in fact,
adequately notify the appellant tha t he could be disciplined for using approved
leave. PFR File, Tab 3 at 6 -12. We agree. The letter specifically warned the
appellant that “[f]ailure to report to duty as directed may lead to disciplinary
action up to and including removal. ” IAF, Tab 9 a t 41. The Board’s case law
2 The administrative judge found that the appellant testified, and that his physicians
certified, that he could not have returned to work at any time from his initial absence on
May 3, 2016, until th e close of the record below. ID at 12; Hearing Compact Disc
(testimony of the appellant); IAF, Tab 10 at 8, 17, 85, Tab 25 at 4. Although the
appellant speculates on review that he might have been able to return to work, PFR File,
Tab 1 at 7, he has prov ided no evidence in support of his assertion.
3 An employee may not be disciplined for use of leave covered by the FMLA.
McCauley v. Department of the Interior , 116 M.S.P.R. 484 , ¶ 11 (2011).
6
does not require that, to be adequate, the notice must warn the employee that an
adverse action will be taken unless the employee becomes available for duty but
only that such action could be taken under those circumstances. Gartner ,
104 M.S.P.R. 463 , ¶ 9; Cook , 18 M.S.P.R. at 611 -12. The agency’s May 31, 2017
return -to-duty letter clearly did so, and the fact that it provided the appellant with
other options neither detract s from nor fatally undermine s the adequacy of the
notice. ID at 8. In finding that t he May 31 , 2017 letter did not provide the
appellant adequate notice that he could be disciplined for continued u se of
approved leave, the administrative judge relied upon the fact that the agency
actually approved a portion of his request for additional LWOP and that the
appellant responded by requesting even more LWOP. Id. However, t he May 31,
2017 letter specifically advised the appellant that the granting of LWOP is at the
discretion of management, IAF, Tab 9 at 41 -42, and it is well established that the
authorization of LWOP is a matter within the agency’s discretion , Oates v.
Department of Labor , 105 M.S.P.R. 10 , ¶ 11 (2007). While the agency had
indeed been generous in its granting of LWOP to the appellant, it was not thereb y
required to continue to grant his requests without end. Additionally , the agency’s
May 31, 2017 letter did not warn the appellant that his continued absences could
result in his being placed on absence without leave (AWOL), and he never was
placed on AW OL. In fact, as noted, the agency continued to grant the appellant’s
LWOP request through the notice period of his removal. Therefore, he could not
have been misled by the language of the May 31 , 2017 letter into thinking that the
possibility of disciplinary action applied to any other status besides LWOP.
¶12 The agency challenges on review the administrative judge ’s statement ,
referenc ing the agency’s earlier letter to the appellant , that “this history of form
correspondence further diluted the imp act of the May 31, 2017 letter. ” PFR File,
Tab 3 at 9 -10; ID at 9 . Contrary to the administrative judge’s claim, the two
letters are not “almost identical.” ID at 8. The March 10, 2 017 letter inform ed
the appellant that he ha d failed to provide support ing medical documentation that
7
would allow the agency to grant his most recent LWOP request and direct ed him
to submit such documentation , and it also addressed his current leave status, that
is, that he had exhausted all of his leave , including his annual allotment of time
under FMLA, and explained his options. IAF, Tab 9 at 58 -59. The letter further
remind ed the appellant that he must r equest leave appropriately, that failing to do
so could result in his being charged AWOL , and that disciplinary action up to and
including removal could be taken on that basis . Id. at 59. Although t he May 31,
2017 letter similarly addresse d the appellant’s current leave status and explain ed
his options, id. at 41 -42, it also inform ed him that his absence from work ha d
existed past a reasonable timeframe and order ed him to return to duty, reminding
him that his failure to do so could lead to disciplinary action up to and including
removal. Id. at 41. An examination of the two letters demonstrates that they
served diff erent purposes and that the March 10, 2017 letter , which urged the
appellant to properly request leave , in no way diluted the impact of the May 31,
2017 letter, which for the first time warned him that fail ing to return to duty
could result in his removal.
¶13 We find , therefore, that the agency proved that it adequately warned the
appellant that an adverse act ion could be taken unless he became available for
duty.
The position needed to be filled by an employee available for duty on a
regular full -time or pa rt-time basis .
¶14 On review, the appellant challenges the administrative judge’s finding that
the agency prove d that his position needed to be filled by an employee available
for duty , claiming that the agency had not filled his position by the time of his
Board hearing. PFR File, Tab 1 at 7. The administrative judge found that the
agency presented ample evidence that , as head of a division and its only
supervisor, the appellant’s absence cause d a significant hardship for the agency.
ID at 7. Specifically, the administrative judge relied on testimony of the
proposing official , who was appellant’s supervisor and the Assistant Director of
8
the Boston Regional Office, to the effect that she spent several hours each day
performing the appellant’s duties and that a division chief f rom another regional
office had to be detailed to cover for the appellant. Id.; Hearing Compact Disc
(HCD) (testimony of the proposing official ); IAF, Tab 10 at 44 . The
administrative judge also relied on testimony of the deciding official, Director of
the Boston Regional Office, that the situation created by the appellant’s extended
absence had become untenable. ID at 7; HCD (testimony of the deciding
official). Beyond his unsupported claim, the appellant has not shown error in the
administrative judge’ s findings on this issue , and we discern no basis upon which
to disturb them . Crosby , 74 M.S.P.R. at 105 -06.
Conclusion
¶15 We conclude, therefore, that the agency proved all the elements of the
charge of excessive absences. Gartner , 104 M.S.P.R. 463, ¶ 9; Cook ,
18 M.S.P. R. at 611 -12. We further find that the agency established that its action
promotes the efficiency of the service and that, given that the appellant ’s absence
has no foreseeable end, removal is a reasonable penalty. Bair v. Department of
Defense , 117 M.S.P.R. 37 4, ¶ 5 (2012).
The appellant failed to e stablish that the administrative judge was biased.
¶16 On review, the appellant also argues that, while the administrative judge
ruled in his favor, he nonetheless exhibited bias towards him. PFR File, Tab 1
at 4-8. Specifically, the appellant refers to an employee, formerly under his
supervision, whose r emoval he proposed. During th e proceedi ngs before the
agency in that matter , the appellant claims that the employee “besmirched” the
appellant’s character and that, w hen the employee appealed his removal to the
Board, he continued to attack the appellant’s character. Id. at 5. The appellant
explains that he learned at his own hearing that the administrative judge in his
case was also the administrative judge in his subordinate ’s case and suggests that,
because of the attack on the appellant’s character in th at other proceeding , the
9
administrat ive judge in this case, rather than rule against the appellant , limited his
prehearing narrative and did not address significant failures of the agency , denied
his request for additional witnesses, and ordered only minimal relief. Id. at 6.
¶17 A claim of bia s must be raised as soon as practicable after a party has
reasonable cause to believe that grounds exist for an administrative judge’s
disqualification on such basis, and a party cannot wait until after the adjudication
is complete to obj ect for the first time. Gensburg v. Department of Veterans
Affairs , 85 M.S.P.R. 198 , ¶ 7 (2000); 5 C.F.R. § 1201.42 (b). By not raising the
claim below, t he appellant failed to follow the regulatory procedures for seeking
disqualification of an administrative judge based on bias due to his alleged
involvement in the appeal of the appellant ’s subordinate . 5 C.F.R.
§ 1201.42 (b)-(c). Therefore, we need not address this claim on review.
¶18 In any event , bearing in mind that the administrative judge ruled in the
appellant ’s favor, the administrative judge ’s actions do not establish bias. For
example, the appellant argues that the administrative judge limited his prehearin g
narrative. PFR File, T ab 1 at 6. In his first Order and Summary of Telephonic
Prehearing Conference, the administrative judge emphasized that the only matter s
before him were the appellant ’s removal for excessive absences and hi s
affirmative defense of disability discrimination and that a proposed performance
improvement plan in 2016, agency understaffing, and a particularly difficult
employee were not relevant to the removal action. IAF, Tab 21. In the
administrative judge ’s second Order and Summary of Telephonic Pre hearing
Conference, he set forth, inter alia, the same two issue s and stated that any
objections to the summary must be received b y a date certain. IAF, Tab 28. The
appellant did file a timely response, but it did not address the issues. IAF,
Tab 29. Therefore, as to the matters at is sue in this appeal, the administrative
judge ’s summary is deemed final, IAF, Tab 28, and not subject to challenge on
review. Crowe v. Small Business Administration , 53 M.S.P.R. 631 , 635 (1992).
10
¶19 The appellant also argues that the administrative judge denied him
“additional witnesses.” PFR File, Tab 1 at 6 . The appellant originally requested
six witnesses, IAF, Tab 18, two of wh om also were requested by the agency , IAF,
Tab 19. The administrative judge provisionally excluded one of the appellant’s
requested witnesses on the agency’s objection as irrelevan t. IAF, Tab 28. The
appellant did challenge th e exclusion , IAF, Tab 29, but was unsuccessful . He has
not on review further explained his challenge to the administrative judge ’s
disallowance of the witness , and we therefore need not address this claim fu rther .
¶20 In making a claim o f 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 administ rative 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) ). There is nothing in the r ecord to support a finding of bias by the
administrative judge .4
The appellant has not established the agency failed to provide him a reasonable
accommodation .
¶21 Finally, the appellant argues that h is removal was improper because the
agency did not first “se e if an accommodation could be made.” PFR File, Tab 1
at 7. We construe th is claim as challenging the administrative judge ’s finding
that he did not establish his defense of disability discrimination based on a theory
of failure to accommodate . After he presum ed that the appellant is a qualified
4 We note t he appellant’s claim that the administrative judge’s bias is shown by his
order of only minimal relief . PFR File, Tab 1 at 4, 7 -8. T he appellant ’s claim is
rendered moot by this fin al decision.
11
individual with a disability,5 the administrative judge thoroughly considered the
failure to accommodate issue , finding that the appellant ’s various claims were
“implausible, incredible, or inconsistent. ” ID at 10. Regarding the appellant ’s
assertion that the agency denied him reasonable accommodation, the
administrative judge found no evidence that the appellant ever started the
interactive process , Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶ 15
(2014), and that his own testimony on this point was inconsistent and otherwise
incredible , ID at 11. In the absence of “sufficiently sound” reasons for doing so,
we discern no basis upon which to disturb the administrative judge ’s credibility
determinations in this regard or to reweigh the evidence or substitute our
assessment of the record evidence fo r his. Haebe v. Depa rtment of Justice ,
288 F.3d 1288 , 1302 (Fed. Cir. 2002). As such, the administrative judge did not
err in finding that, other than indefinite L WOP which the agency was not required
to provide, the appellant did not request reasonable accommodation and therefore
did not establish his claim of disability discrimination.
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 a ppropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on wh ich option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
5 The record does not appear to support such a presumption.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immed iately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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 disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If yo u have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
14
with the EEOC no later than 30 calendar days after your representative 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 revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 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 Fe deral 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 Cir cuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any o ther circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
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,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representati on 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TEN_PAS_TIMOTHY_PH_0752_17_0430_I_1_FINAL_ORDER_2063412.pdf | 2023-08-28 | null | PH-0752 | NP |
2,762 | https://www.mspb.gov/decisions/nonprecedential/LONGMIRE_PAMELA_DC_0752_20_0460_I_2_FINAL_ORDER_2062894.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAMELA LONGMIRE,
Appellant,
v.
NUCLEAR REGULATORY
COMMISSION,
Agency.
DOCKET NUMBER
DC-0752 -20-0460 -I-2
DATE: August 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karen J. Malachi and Peggy Jones Golden , Atlanta, Georgia, for the
appellant.
Cathy Scott , Washington, D.C., for the agency.
Garett Dane Henderson and Vinh Hoang , Rockville, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency ’s removal decision and granted the appellant ’s affirmative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
defenses of disability discrimination based on a failure to accommodate 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 a pplication 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 affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify and supplement the administrative judge ’s findings regarding the
appellant ’s affirmative defenses , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed a s a Project Manager with the agency ’s Office
of Nuclear Material Safety and Safeguards. See Longmire v. Nuclear Regulatory
Commission , MSPB Docket No. DC -0752 -20-0460 -I-1, Initial Appeal File (IAF),
Tab 1 at 1 , Tab 7 at 24. By a letter dated January 8, 2 020, the agency proposed
the appellant ’s removal based on a charge of absence without leave ( AWOL ),
supported by 33 specifications covering the period from November 12, 2019 ,
through January 2, 2020. IAF, Tab 1 at 6 -10. The appellant provided a written
response to the proposal with supporting documentation. IAF, Tab 7 at 45 -62.
After considering the appellant ’s response, the deciding official issued a decision
that sustained the AWOL charge and all 33 specifications , removing the appellant
from her pos ition, effective February 21, 2020. IAF, Tab 1 at 17 -22.
3
¶3 The appellant filed a Board appeal and requ ested a hearing. IAF, Tab 1
at 2. She raised affirmative defenses of discrimination on the bas es of disability,
age, and race, and alleged that the age ncy committed a prohibited personnel
practice and engaged in harmful procedural error by removing her. Id. at 3.
After holding the first 2 days of the requested hearing, the appeal was dismissed
without prejudice to refiling. IAF, Tab 55; see IAF, Tabs 50, 52. The appeal was
subsequently refiled, see Longmire v. Nuclear Regulatory Commission , MSPB
Docket No. DC -0752 -20-0460 -I-2, Appeal File (I-2 AF), Tab 1, and after a third
hearing day the administrative judge issued an initial decision reversing the
removal action . I-2 AF, Tab 4, Initial Decision (ID). He conclud ed that the
agency discriminated against the appellant based on a failure to accommodate her
disability when it removed her, and so the agency action could not be sustained.
ID at 3-19; see I-2 AF, Tab 3 . The administrative judge also determined that the
agency committed harmful error in the application of its procedures by failing to
comply with its Management Directive and the collective bargaining agreement
(CBA) when it denied the appell ant reasonable accommodation. ID at 21 -23.
Finally, the administrative judge determined that the appellant failed to prove her
affirmative defenses of disparate treatment disability discrimination and
discrimination based on sex and race. ID at 19 -21. Because the agency
committed harmful procedural error and engaged in disability discrimination
based on its failure to accommodate the appellant when it removed her, the
administrative judge reversed the removal action. ID at 1, 23.
¶4 The agency timely fi led a petition for review . Petition for Review (PFR)
File, Tab 1. The appellant has filed a response in opposition to the petition for
review , and the agency has filed a reply . PFR File, Tab s 3, 5.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge did not err in concluding that the agency discriminated
against the appellant based on its failure to accommodate her disability.
¶5 The administrative judge reversed the removal , finding that it was based on
the agency’s failure to accommodate the appellant’s disability. ID at 3. On
review, the agency argues that the administrative judge incorrectly concluded that
the appellant proved this affirmative defense. PFR File, Tab 1 at 12-18, 23 -31.
Specifically, the agency argues that the administrative judge erred by :
(1) neglecting to address how the agency’s failure to accommodate the appellant’s
disability caused the charged misconduct; (2) determining that it failed to engage
in the interactive process ; (3) finding that the appellant was a qualified individual
with a disability ; and , (4) concluding that the appellant ’s request for full -time
telework2 did not constitute an undue hardship on the agency. Id. at 12-18, 23 -31.
Applicable legal standard
¶6 The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act , which has incorporated the standards of the
2 The parties refer to the appellant’s request to work from home as a request for
full-time telework, and Article 7 of the CBA, which governs telework, includes a
provision that explicitly covers “Full -Time Telework.” IAF, Tab 24 at 42 -43. We note
that the terms “telework” and “remote work” are distinct work arrangements, and are
often improperly used interchangeably. U.S. Office of Personnel Managemen t, 2021
Guide to Telework and Remote Work in the Federal Government at 11 (hereafter “ OPM
Guide to Telework and Remote Work in the Federal Government”), available at
https://www.opm.gov/telework/documents -for-telework/2021 -guide -to-telework -and-
remote -work.pdf . In practice, telework “is a work arrangement that allows employees
to have regularly scheduled days on which they telework and regularly scheduled days
when they work in their agency worksite.” Id. By contrast, remote work “is an
alternative work arrange ment that involves an employee performing their official duties
at an approved alternative worksite away from an agency worksite, without regularly
returning to the agency worksite during each pay period.” Id. at 53. Here, although the
appellant’s reques t to work from her home full -time appears to fall within the definition
of remote work in the OPM Guide to Telework and Remote Work in the Federal
Government , because the parties considered the appellant’s request as a request for
“full -time telework” unde r the CBA we will refer to it as telework in this order.
5
Americans with Disabilities Act (ADA) as amended. Haas v. Department of
Homeland Security , 2022 MSPB 36, ¶ 28. Under the relevant provisions, it is
illegal for an employer to “discriminate against a qualified individual on the basis
of disability. ” Id.; 42 U.S.C. § 12112 (a). A qualified individual with a disability
is one who can “perform the essential functions of the . . . position that such
individual holds or desires ” with or without accommodation. Haas , 2022 MSPB
36, ¶ 28; 42 U.S.C. § 12111 (8); see 29 C.F.R. § 1630.2 (m). An agency is
required to provide reasonable accom modation to an otherwise qualified
individual with a disability , unless the agency can show that doing so would
cause an undue hardship on its business operations . 42 U.S.C. § 12112 (b)(5) ;
Haas , 2022 MSPB 36, ¶ 28 ; Clemens v. Department of the Army , 120 M.S.P.R.
616, ¶ 10 (2014) . Reasonable accommodation includes modifications to the
manner in which a position is customarily performed in order to enable a
qualified individual with a disability to perfo rm the essential job functions, or
reassigning the employee to a vacant position whose duties the employee can
perform. Clemens , 120 M.S.P.R. 616 , ¶ 10.
¶7 In the initial decision, the administrative judge determined the following:
(1) the appellant was an individual with a disability based on her asthma, chronic
rhinosinusitis, and allergy exacerbation conditions, which substantial ly limit her
ability to breathe; (2) she was a qualified individual with a disability because she
could safely and efficiently perform the essential functions of her position; (3) the
decision to remove her was based on her disability insofar as the agency failed to
engage in the reasonable accommodation interactive process or otherwise attempt
to accommodate her before removing her; and (4) accommodating the appellant
by permitting her to telework would not have caused the agency undue hardship.
ID at 4-19. On review, t he agency has not disputed the administrative judge’s
finding that the appellant is an individual with a disability, so we need not
address that finding . We turn now to consider each of the remaining findings.
6
We agree with the administrative judge’s finding that the appellant
was a qualified individual with a disability.
¶8 As previously noted, a qualified individual with a disability is a person who
can perform the essential functions of her position with or without
accommodation . 42 U.S.C. § 12111 (8). The Board has indicated that the core
duties of a position are synonymous with the essential functions of a position
under the ADA, as amended, i.e., the fundamental job duties of the position, not
including marginal functions. Haas , 2022 MSPB 36, ¶ 21; Clemens ,
120 M.S.P.R. 616 , ¶ 6; 29 C.F.R. § 1630.2 (n)(1). A job duty may be considered
essential for a number of reasons, including, among other things, because the
reason the position exists is to perform that function, because of the limited
number of employees available among whom the performance of that job function
can be distributed, or because the function is highly specialized so that the
incumbent is hired for his or her expertise or ability to perform the particular
function. Haas , 2022 MSPB 36, ¶ 21; Clemens , 120 M.S.P.R. 616 , ¶ 6 . In
determining whether a particular function is “essential,” the Board will c onsider a
number of factors , such as the employer’s judgment as to which functions are
essential, written position descriptions, the amount of time spent performing the
function, and the consequences of not requiring the incumbent to perform the
function . Clemens , 120 M.S.P.R. 616 , ¶ 6 .
¶9 On review, the agency argues that the administrative judge failed to give
adequate deference to agency management ’s assessment of the appellant’s
essential job duties, citing preceden t from the Equal Employment Opportunity
Commission (EEOC) and Federal appellate courts concerning the substantial
deference given to employers to determine an employee’s essential job duties.
PFR File, Tab 1 at 23 -25. The agency also argues that the administrative judge
inappropriately credited the appellant’s testimony concerning her job duties and
failed to acknowledge testimony by comparator employees that the frequency
with which certain job duties are performed varies among the different agency
7
branches. Id. at 26 -27. Finally, the agency argues that because there has not
been an assessment of the appellant’s medical status and limitations since
Sept ember 2018, it is impossible to determine whether she can perform the
essential functions of her position. PFR File, Tab 1 at 22 -30.
¶10 To the extent the agency is challenging the administrative judge’s decision
to credit the appellant’s testimony concerni ng the nature of her job duties over
that of her former first -line supervisor, t he Board has regularly held that it will
not disturb an administrative judge’s findings when he considered the evidence as
a whole, drew appropriate inferences, and made reason ed conclusions on issues of
credibility. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997);
Broughton v. Department of Hea lth and Human Services , 33 M.S.P.R. 357 , 359
(1987). Here, t he administrative judge made credibility determination s based on
his observation of each witness’s demeanor at the hearing , and we decline to
disturb those findings on review. See ID at 16 -17, n.1 (citing Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987) (identifying the factors
that an administrative judge must consider in making credibility determinations ));
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002)
(concluding that t he Board generally must give deference to an administrativ e
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing and may
overturn such determinations only when it has “sufficient ly sound” reasons for
doing so ).
¶11 Regarding the agency’s specific argument that the administrative judge
failed to consider the testimony of the purported comparators concerning the role
public meetings played in the appellant’s branch, the administrative judge did
identify and discuss testimony from each of the comparators regarding the role
public meetings played in their respective branches. ID at 18 -19 (citing Aug. 19,
2020 Hearing Transcript ( HT 2) at 190-92, 216, 229-31, (testimony of purported
comparators); I-2 AF, Oct. 23, 2020 Hea ring Transcript ( HT 3 ) at 225 -26
8
(testimony of purported comparator)). The administrative judge ’s decision not to
specifically discuss the testimony from the comparators —none of whom were
assigned to the appellant’s branch —concerning the frequency of public meetings
in the appellant’s branch , does not mean that he did not consider that testimony
and is not a basis for overturning his well -reasoned findings on review. See
Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 ,
¶ 25 (2016) (concluding th at the administrative judge’s failure to mention all of
the evidence of record does not mean that he did not consider it in reaching his
decision ), clarified by Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 23 -24; Marques v. Department of Health and Human Services , 22 M.S.P.R.
129, 132 (1984), aff’d , 776 F.2d 1062 (Fed. Cir. 1985) (Table) .
¶12 Regarding the agency ’s assertion that , based on existing EEOC and Federal
appellate court precedent , the administrative judge failed to give adequate
deference to its determination about which of the appellant’s duties were
essential , we disagree. A lthough the decision cited by the agency held that the
inquiry into the essential functions of an employee’s job should not “second guess
the employer or [] require the employer to lower company standards,” the court
also held that the deference granted to agencies is “not absolute ,” and that the
agency’s assessment is one of several factors to be considered in determining
which of the employee’s job functions are essenti al. PFR File, Tab 1 at 24 -25;
Vargas v. DeJoy , 980 F.3d 1184 , 1188 ( 7th Cir. 2020) ; see Elledge v. Lowe ’s
Home Centers, LLC , 979 F.3d 1004 , 1009 ( 4th Cir. 2020) (noting that an
employer’s assessment of an employee’s job duties is entitled to “considerable
deference” from the courts, but also acknowledging that the ADA states that other
factors are also relevant to the question, and that the court’s assessment must
“consult the full range of evidence bearing on the employer’s judgement. . .”);
29 C.F.R. § 1630.2 (n)(3) (identifying additional factors to be considered in
determining whether a job duty is “essential,” including whether the position
9
exists to perform the function, whether a limited number of e mployees can
perform the function, and whether the function is highly specialized ).
¶13 Based on the appellant’s testimony describing her regular job duties and the
frequency with which she performed them, as well as a review of the appellant’s
position desc ription, the administrative judge determined that the appellant could
perform the essential functions of her position while teleworking. ID at 14-15;
Hearing Compact Disc ( HCD ) 3 at 138 -40 (testimony of appellant); IAF, Tab 26
at 4. He highlighted testimony from the appellant stating that she had not
performed the two contested job functions since 2012 and 2016 respectively, as
well as testimony fr om the appellant’s former first -line supervisor that did not
indicate that the appellant had any issues completing her job duties while
teleworking. ID at 15-17; see IAF, Aug. 18, 2020 Hearing Transcript ( HT 1 )
(testimony of appellant’s former first -line supervisor); HT 3 at 123-28 (testimony
of appellant) . Contrasting that testimony , the administrative j udge cited
testimony from the appellant’s first -line supervisor acknowledging that he was
not aware whether the appellant had ever performed either of the challenged job
functions , and testimony from the agency reasonable accommodation coordinator
(RAC ) acknowledging that the essential function s analysis considers the actual
duties the employee perform s, not just the generic duties described in an
employee’s position description . ID at 17 ; HT 1 at 116 -17, 125 -26 (testimony of
appellant’s first -line supervi sor; HT 3 at 61 -63). In the absence of “sufficiently
sound” reasons for doing so, we discern no basis upon which to disturb the
administrative judge’s credibility determinations in this regard or to reweigh the
evidence or substitute our assessment of the record evidence for his. Haebe ,
288 F.3d at 1302.
¶14 Finally, we find no merit in the agency’s argument that because the
assessment of the appellant’s limitations provided by Federal Occupational
Health ( FOH ) was sparse or outdated, it was not possible to assess whether she
10
could perform the essential functions of her position .3 PFR File, Tab 1 at 28 -30.
Because we ultimately agree with the administrative judge’s finding that the
agency’s failure to adequately engage in the interactive process is what cau sed
the failure to accommodate the appellant ’s disability, see infr a ¶¶ 15-24, to
whatever extent the agency now asserts that it was hindered in its ability to
adequately assess the appellant’s medical limitations, it was the agency’s own
actions that caus ed the hindrance . Accordingly, we conclude that the
administrative judge properly considered the relevant factors based on the entire
record . We agree that the appellant was a qualified individual with a disability
because she could perform the essential functions of her position with or without
accommodation.
The administrative judge ’s finding that the agency failed to
adequately engage in the interactive proces s is supported by the
record .
¶15 The agency also challenges the administrative judge ’s finding that it failed
to engage in the interactive process by failing to properly process the appellant’s
requests for telework. PFR File, Tab 1 at 13 -17. Specifically, the agency argues
that it made repeated efforts to engage in the interactive process and ins tead it
was the appellant who failed to engage in the interactive process in good faith.
3 To the extent the agency suggests, for the first time on review, that the appellant’s
traumatic brain injury (TBI) diagnosis affected her ability to complete her job functions
and that an assessmen t of her limitations is necessary in light of her TBI condition, the
agency did not raise this argument below and we need not consider it on review. PFR
File, Tab 1 at 28-30. See Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016)
(noting that the Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is base d on new and material evidence
not previously available despite the party’s due diligence); Banks v. Department of the
Air Force , 4 M.S.P.R. 268 , 271 (1980) (same); 5 C.F.R. § 1201.115 (d). Additionally ,
the record reflects that the agency RAC closed the appellant’s request for reasonable
accommodation in connection with her TBI clai m after the appellant failed to provide
supporting medical documentation, and the administrative judge did not rely on the
appellant’s TBI condition as a part of his finding that the agency failed to accommodate
the appellant’s disability . HT 2 at 45 -46 ( testimony of agency RAC); IAF, Tab 22
at 23-32; see ID at 6, 9 -13.
11
Id. As the administrative judge observed , once an employee informs the agency
that she requires an accommodation , the agency must engage in an interactive
process to determine an appropriate accommodation. Kirkland v. Department of
Homeland Security , 119 M.S.P.R. 74 , ¶ 18 (2013) ; see Paris v. Department of the
Treasury , 104 M.S.P.R. 331 , ¶ 17 (2006) (finding an employee need only let her
employer know in general terms that she needs accommodation for a medical
condition). A request for reasonable accommodation is the first step in the
informal, interactive process between the individual and the employer. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (EEOC Enforcement Guidance) ,
Question 5 , Notice No. 915.002 (Oct. 17, 2002), available
at https ://www.eeoc.gov/laws/guidance/enfor cement -guidance -reasonable -
accommodation -and-undue -hardship -under -ada. “The appropriate reasonable
accommodation is best determined through a flexible, interactive process that
involves both the employer and the individual with a disability. ” 29 C.F.R. part
1630 , appendix, § 1630.9 . Additiona lly, c ourts have generally required both
parties to engage in this process in good faith. See Rehling v. City of Chicago ,
207 F.3d 1009 , 101 5-16 (7th Cir. 2000) ; Collins v. U.S. Postal Service ,
100 M.S.P.R. 332 , ¶ 11 (2005) . Nevertheless, t he failure to engage in the
interactive process alone does not violate the Rehabilitation Act; rather the
appellant must show that this omission resulted in failure to provide reasonable
accommodation. Clemens , 120 M.S.P.R. 616 , ¶ 17 .
¶16 In the initial decision, the administrative judge relied on testimony from the
agency ’s RAC, who testified at length concerning the agency ’s reasonable
accommodation process . ID at 10 -11 (citing HT 2) (testimony of agency RAC) ).
The agency RAC testified that, pursuant to the agency ’s reasonable
accommodation policy , the agency should begin processing an employee ’s request
for accommodation no later than 5 days after the request is initiated , and the
requesting employee ’s supervisor must discuss the request with a Human
12
Resources (HR) representative. The RAC testified that she did not process any
reasonable accommodation requests for the appellant during the period from
September 24, 2019 , through January 30, 2020 . ID at 10 -11. Observing that the
appellant requested full -time telework on several occasions in 2019, including on
September 24, 2019, October 8, 2019, November 6, 2019, and December 30,
2019, the administrative judge concluded that the none of the requests were
forwarded to the RAC as required under the reasonable accommodation policy .
¶17 On review, the agency argues that it engaged in the interactive process in
good faith. It points to the fact that the appellant was pr ovided with an enclosed
office and an air purifier in October 2017 , and cites an October 18, 2019 email
from the appellant ’s first -line supervisor , asking the appellant whether her current
accommodations were adequate and requesting that she provide approp riate
medical documentation to support her absences. PFR File, Tab 1 at 13 -15; see
IAF, Tab 23 at 43 -44. The agency notes that the appellant failed to provide the
requested medical documentation when asked and otherwise failed to provide
evidence demonst rating that her prior accommodation of an enclosed office with
an air purifier was not an effective accommodation. PFR File, Tab 1 at 15 -17.
The agency also argues that the administrative judge incorrectly stated that the
appellant ’s first -line superviso r proposed her removal 1 week after he received
her accommodation request, noting that the email cited by the administrative
judge had not been addressed to the supervisor. Id. at 16; see ID at 11 -12.
¶18 As an initial matter, there is no merit to the agency’s claim that the
administrative judge failed to address that the appellant had been provided an
accommodation for her respiratory condition that was “deemed to be effective by
FOH and the [a]ppellant’s treating physicians ,” or alternatively, tha t there was no
medical evidence demonstrating that the existing accommodation was ineffective .
PFR File, Tab 1 at 14 , 16-17. The administrative judge specifically addressed
these claims below, concluding that the identified accommodation, the in -office
air purifier, was “clearly ineffective” based on the “overwhelming evidence ” the
13
appellant provided demonstrating that she was unable to work in her office, even
with the offered accommodation. ID at 17. The administrative judge made this
determination ba sed on his review of the evidence as a whole and his observation
of the demeanor of the witnesses testifying at the hearing , and we decline to
disturb those findings on review. See ID at 16 -17, n.1 (citing Hillen , 35 M.S.P.R.
at 458); Haebe , 288 F.3d at 1301.
¶19 Additionally, although the document the agency cites from the FOH
physician note d that the in -office purifier “would be a medically reasonable way”
of accommodating the appellant, he also observed that the appellant needed to be
in an “extremely clean office environment” to work effectively and that telework
as an accommodation “ would likely be effective as well .” IAF, Tab 22 at 17. In
a later correspondence to the agency RAC regarding the continuing severity and
pervasiveness of the appellant’s condition, the FOH physician noted that the
appellant’s condition was “quite severe” and that if she continued to comp lain of
symptoms even when working in a private office with an air purifier, “she should
be allowed to continue to telework.” Id. at 65. The appellant also provided
additional medical documentation to agency officials dated August 2018 through
January 20 20, clearly indicating that her existing accommodations were not
working and that she should not return to the office. IAF, Tab 7 at 50 -56; HCD 3
at 36 -38 (testimony of the appellant).
¶20 We also find no reason to disturb the administrative judge’s finding that the
agency failed to properly engage in the interactive process. ID at 9-13. The
administrative judge based his determination on the RAC’s failure to process any
of the appellant ’s requests between September 24, 2019 , and January 30, 2020 , as
reque sts for reasonable accommodation, a s well as the first-line supervisor
proposing the appellant ’s removal without giving the agency ’s telework
14
coordinator adequate time to review the telework request denial.4 ID at 12.
Similarly, w e are not persuaded by the agency’s argument that the appellant’s
first-line supervisor’s request for medical documentation and the appellant’s
failure to provide the requested information constituted clear examples of the
agency’s good faith effort to engage in the interactive process and appellant’s
failure to engage in the interactive process in good faith. PFR File, Tab 1
at 14-15. A s the agency RAC testified, after the interactive process was
triggered , it was the RAC’s responsibility to coordinate with the appellant
regar ding the request, including requesting any necessary supporting medical
documentation, so the appellant’s failure to provide medical documentation to her
supervisor does not undermine the administrative judge’s finding that the agency
failed to properly en gage in the interactive process.5 PFR File, Tab 1 at 15 -16; ID
at 12; HT 2 at 88 -89 (testimony of agency RAC).
¶21 Finally, the agency disputes the administrative judge ’s finding that the
appellant’s supervisor issued the removal proposal “ one week after he r eceived
the [a]ppellant’s [December 30, 2019] request for accommodation .” We agree
with the agency that there is no evidence in the record indicating that the
appellant’s first -line supervisor ever received the December 30, 2019 email, as
the email was no t addressed to the supervisor and there is no testimony in the
4 As noted supra footnote 2, the CBA includes a provision governing requests for
“full -time telework” that appears to be applicable to the appellant’s requests to work
from home. IAF, Tab 24 at 42 -43 (Article 7.10 ). Under Article 7.3.5 of the CBA, if an
employee requests a telework arrangement in order to enable her to perform the full
range of her offi cial duties, such a request is a request for reasonable accommodation
that must be submitted to the agency RAC. IAF, Tab 24 at 38. Here, management
officials did not follow this provision, and this failure appears to have caused the
RAC’s failure to enga ge in the interactive process.
5 Although not addressed in the initial decision, the agency’s reasonable
accommodation procedures specify that the agency must provide an interim
accommodation to allow the employee to perform some or all of the essential fu nctions
of her position while the accommodation request is under consideration, which the
agency also failed to do. IAF, Tab 24 at 145.
15
record concerning him having received it . PFR File, Tab 1 at 16 ; HT 1 at 163 -64
(testimony of appellant’s first -line supervisor). Nevertheless , there is no dispute
that the supervisor became aware of the appellant ’s request approximately
2 week s later , and that the supervisor still failed to provide the information
necessary for the telework coordinator to act on the appellant’s reconsideration
request prior to the removal decision . ID at 11 -12; IAF, Tab 25 at 36 -44; HT 1
at 163-65. Further , the agency has not disputed the administrative judge’s finding
that agency officials, including the appellant’s first -line supervisor , failed to
properly act on the appellant’s other requests for accommodation during the
period from September 24, 2019 , through January 30, 2020. ID at 10 -12.
¶22 Accordingly, we find no error in the administrative judge’s determination
that the agency failed to adequately engage in the interactive process by failing to
process any of the appellant’s repeated requests for telework as requests for
reasonable accommodation, and that this failure resulted in the failure to provide
the appellant with reasonable accommodation. ID at 9-13; see Clemens ,
120 M.S.P.R. 616 , ¶ 17 .
The administrative judge did not err by concluding that
accommodating the appellant would not cause the agency undue
hardship.
¶23 The agency also argues that the administrative judge erred by concluding
that accommodating the appellant would not cause the agency undue hardship.
PFR File, Tab 1 at 30 -31; see ID at 17 -19. Specifically, the agency argues that ,
because the appellant f ailed to engage in the interactive process, the agency was
unable to complete an individualized assessment of appellant’s needs and
restrictions that would serve as the basis for determining an appropriate
accommodation. PFR File, Tab 1 at 30 -31.
¶24 As the administrative judge noted, after the appellant requested and was
denied permanent telework through the agency’s ordinary telework policy , the
appellant requested reconsideration of that decision through the telework
16
coordinator on December 30, 2019 , noti ng that her disability prevented her from
working in the office and that her pulmonologist recommended that she telework
indefinitely . IAF, Tab 25 at 29 ; see ID at 10 -11. As a part of the reconsideration
process, the telework coordinator sent a set of questions to both the appellant and
her first -line supervisor concerning the nature of the appellant’s job duties. IAF,
Tab 25 at 33 -43; HCD 2 at 154 -55 (testimony of agency telework coordinator) .
After reviewing the first set of responses from each party, the telework
coordinator sent a follow -up set of questions to the appellant’s supervisor. IAF,
Tab 25 at 40 ; HCD 2 at 156 -59 (testimony of agency telework coordinator) . The
appellant’s supervisor did not respond to the follow -up set of questions before the
appellant’s removal was effectuated on February 21, 2020, and so the telework
coordinator was unable to act on the appellant’s reconsideration request prior to
her removal. IAF, Tab 25 at 44 -45, 55; HT 2 at 157-58, 177 -78 (testimony of
agency telework coordinator) .
¶25 In those follow -up questions, the telework coordinator sought clarification
about factors that would have aided the agency in determining whether the
appellant’s requested accommodation would cause the agency an undue hardship,
including the frequency with which the appellant completed the job duties her
supervisor determined were not portable , and potential alternative
accommodations . IAF, Tab 25 at 40 ; HT 2 at 168 -75, 177 -79 (testimony of
agency telework coordinator) (noting that questions sent to the appellant’s
supervisor were intended to assist the agency in determining whether and to what
extent the appellant’s full -time telework request would cause an undue burden on
the agency, and to what extent the appellant’s non -portable duties co uld be
redistributed within the branch without causing disruption to the agency’s
operations) .
¶26 The agency bears the burden of production to show that a reasonable
accommodation would impose an undue hardship on the agency. Henry v.
Department of Veteran s Affairs , 100 M.S.P.R. 124, ¶ 15 (2005) . Because the
17
appellant’s supervisor never provided responses to these follow -up questions and
failed to properly process the appellant’s other requests for reasonable
accommodation, to whatever extent the agency was hindered in its ability to
assess the potential hardship that accommodating the appellant would have had on
the agency’s operations , it was a problem of the agency’s own creation.
Accordingly, we agree with the administrative judge’s finding that the ag ency
failed to show that accommodating the appellant’s disability would impose an
undue hardship on the agency’s operations. Smith v. U.S. Postal Service ,
113 M.S.P.R. 1 , ¶ 8 (2009) (concluding that the agency failed to meet its burden
of proving that accommodating the appellant would impose an undue hardship) ;
29 C.F .R. § 1630.9 (a); see ID at 13, 17 -19.
The appellant established that the agency’s action was based on the agency’s
failure to accommodate her disability .
¶27 The agency asserts that the administrative judge treated the appellant’s
disability discrimination claim as the central question in the case, rather than as
an affirmative defense, and “unless the agency’s actions regarding her
accommodation were the cause of her misconduct ,” the agency’s actions should
not excuse it. PFR File, Tab 1 at 12. The agency posits that the appellant was
absent from duty on the days at issue in the AWOL charge , she ignored inquiries
to request leave or otherwise communicate with management, and t he initial
decision failed to address how the agency’s purported failure to provide the
appellant telework as an accommodation excuses her misconduct. Id. at 13.
¶28 An appellant alleging disability discrimination based on a failure to
accommodate must show t hat the action appea led was “based on ” her disability.
Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74 , ¶ 18 (20 13). As
noted above, the AWOL charge upon which the agency based its removal action
was supported by 33 specifications covering the period from November 12, 2019,
through January 2, 2020 , and the appellant has submitted evidence showing that
existing acco mmodations had been ineffective and she was unable to physically
18
work in the office during that period due to her disability. Further, t he appellant
requested full-time telework on several occasions in 2019, including on
September 24, 2019, October 8, 201 9, November 6, 2019, and December 30,
2019, and we have found that the agency failed to respond to these requests as
required by the interactive process. Considering these findings, as well as the
determination that the appellant was able to perform the essential functions of her
position with the accommodation of telework , we find no merit in the agency’s
argument that its failure to accommodate the appell ant did not cause the charged
misconduct. To the contrary, we find that the agency’s failure to provide the
appellant with a reasonable accommodation did cause her absences during the
period at issue, and we therefore conclude that the appellant has met h er burden
to show that the removal a ction was based on her disability.
Conclusion
¶29 For the foregoing reasons, we agree with the administrative judge’s
conclusion that the agency discriminated against the appellant based on its failure
to accommodate her dis ability, and thus the removal decision cannot be sustained.
We affirm the administrative judge ’s findings regarding the appellant’s disparate
treatment disability discrimination, race discrimination, and sex discrimination
claims.
¶30 After the initial decision was issued, the Board issued an Opinion and Order
clarifying the standard and methods of proof for disparate treatment
discrimination claims arising under both Title VII and the Rehabilitation Act.
Pridgen , 2022 MSPB 31, ¶¶ 19-25, 35, 40 . Having reviewed the relevant portions
of the initial decision, we find that the administrative j udge’s analysis was
consistent with Pridgen . ID at 19 -21. Because the appellant does not contest the
administrative judge’s findings on her disparate treatment claims, we affirm these
findings on review.
19
To the extent that the appellant previously raised affirmative defenses of reprisal
for requesting reasonable accommodation and discrimination based on age, she
effectively abandoned those claims.
¶31 In her response to the administrative judge ’s affirmative defense order, the
appellant identified her affirma tive defenses as including, among other things, an
allegation that she was “retaliated against as a result of her disability and request
for accommodation .” IAF, Tab 17 at 8 (emphasis added). This could reasonably
be interpreted as a claim of reprisal fo r requesting reasonable accommodation .
Nevertheless, the administrative judge did not include this as an issue for
adjudication in the prehearing conference summary nor did he render findings on
this claim in the initial decision. IAF, Tab 31 at 2 -3; ID at 3-23.
¶32 Aside from this single apparent reference to reprisal for requesting
reasonable accommodation in her affirmative defense order response, the
appellant, who was represented by an attorney, did not raise this claim in any of
the other pleadings in the record below and did not object to the administrative
judge ’s failure to include this as an issue to be determined at hearing , nor does
she identify it on review. PFR File, Tab 3. Applying the relevant factors, we
find that to the extent the appella nt previously attempted to raise this affirmative
defense, she effectively abandoned it. See Thurman v. U.S. Postal Service ,
2022 MSPB 21, ¶¶ 17-18 (identifying a nonexhaustive list of factor s the Board
should consider in assessing whether a previously -raised affirmative defense
claim was abandoned or waived, including the following, among others: (1) the
degree to which the appella nt continued to pursue her affirmative defense in the
proceedings below after initially raising it; (2) whether the appellant objected to a
summary of the issues to be decided that failed to include the potential
affirmative defense when she was specifical ly afforded an opportunity to object
and the consequences of her failure were made clear; (3) whether the appellant
raised her affirmative defense or the administrative judge ’s processing of the
20
affirmative defense claim in her petition for review; and (4) whether the appellant
was represented during the course of her appeal).
¶33 Finally, as previously noted, the appellant also identified discrimination
based on age as one of her affirmative defense s in her initial appeal . IAF, Tab 1
at 3. Although the admin istrative judge acknowledged that the appellant raised
this claim in her initial appeal, he did not address it in the initial decision. See ID
at 2. After identifying this claim on her initial appeal form, the appellant, who
obtained legal representation soon after filing her appeal, see IAF, Tab 14 at 4,
failed to identify the age discrimination claim in her response to the
administrative judge ’s affirmative defense order, see IAF, Tab 17. She also did
not file an objection to the administrative judge ’s order summarizing the issues to
be decided in the appeal, to the exclusion of all others, which did not include this
claim . See IAF, Tab 31 . Nor did she identify it in any of her prehearing
submissions, see IAF, Tabs 29, 33 -38, or address it during the hearing,6 see IAF,
Tabs 50, 52; I -2 AF, Tab 3. Additionally, she did not raise the administrative
judge ’s failure to adjudicate this affirmative defense claim in her response to the
agency ’s petition for review. See PFR File, Tab 3. Accordingly, we conc lude
that to the extent the appellant attempted to raise an affirmative defense of
discrimination based on age, she effectively abandoned that claim. See Thurman ,
2022 MSPB 21, ¶¶ 17 -18.7
6 During testimony from one of the appellant’s purported comparators, the agency
objected to a question concerning the comparator employee’s date of birth and the
administrative judge questioned the relevance of the testimony, asking “[t]his is not an
age discrimination case, is it?”, in response to which the appellant’s attorney agreed to
withdraw the question, supporting our conclusion that this claim was abandoned. See
HT 2 at 182 -83 (testimony of appellant’s comparator).
7 An appellant’s harmful procedural error claim is moot when, as here, she is already
entitled to all of the relief she would obtain if she were to prevail on that claim.
Desjardin v. U.S. Postal Service , 2023 MSPB 6 , ¶ 34. Accordingly, we need not
address the agency’s as sertions in its petition for review that the administrative judge
erred in finding that the agency committed harmful procedural errors.
21
ORDER
¶34 We ORDER the agency to CANCEL the removal and to retroactively
restore the appellant and to restore the appellant effective February 21, 2020. See
Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The
agency must complete this action no later than 20 days after the date of this
decision.
¶35 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 g ood 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.
¶36 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).
¶37 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 off ice 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).
¶38 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
22
necessary to process payments and adjustments resulting from a Board decision
are attached. The agen cy 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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 State s 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 APPELL ANT
REGARDING Y OUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental ang uish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a . The regulations may be found at 5 C.F.R. §§ 1201.201 ,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office t hat
issued the initial decision on your appeal.
23
NOTICE OF APPEAL RIG HTS8
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 t ime limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 may have updated
the notice of review rights incl uded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
24
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action in volves a claim of discrimination based on
25
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC ’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
26
other protected activities l isted in 5 U.S.C. § 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 personne l practi ce described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D), ” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of app eals 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 pet ition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additio nal information about the U.S. Court of Appeals for the Federal
Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants, ” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regardi ng 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 co mpetent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
27
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact info rmation for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 d amages) 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 c ompleted “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, r efunds 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 t he annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 unabl e 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 conversio n, 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/Pe rsonnel Operations at 504 -255-4630. | LONGMIRE_PAMELA_DC_0752_20_0460_I_2_FINAL_ORDER_2062894.pdf | 2023-08-25 | null | DC-0752 | NP |
2,763 | https://www.mspb.gov/decisions/nonprecedential/HWIG_HASSAN_DC_0752_18_0368_I_1_FINAL_ORDER_2062927.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HASSAN HWIG,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -18-0368 -I-1
DATE: August 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
M. Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the appellant.
Kathleen A. Giacolone , Portsmouth , Virginia, for the agency.
Lauren Leathers , Falls Church, Virginia , for the agency.
BEFORE
Cathy A. Harris, Vice Chairma n
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal for failing to provide the agency information
regarding his arrest. For the reasons discussed below, we GRANT t he 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
petition for review, REVERSE the initial decision , and AFFIRM the agency’s
action removing the appellant .
BACKGROUND
¶2 The agency employed the appellant as a GS -9 Polysomnographic
Technician. Initial Appeal File (IAF), Tab 6 at 26. On August 16, 2016, he was
arrested for misdemeanor sexual battery in connection with an alleged incident at
his non -Federal part -time job. Id. at 66, 104. In October 2016 , the agency’s
assistant security manager informed him that the Department of Defense
Consolidated Adjudication Facility required information about his arrest to make
a security clearance determination and requested that he provide “all details about
the sexual battery charge, to include what led to this charge (the story behind the
inciden t), fines, imprisonment, rehabilitation, disposition, etc.” Id. at 62 -64, 118.
The appellant provided a copy of the arrest warrant and a letter from his attorney
stating that his case was scheduled for trial on November 4, 2016, in the
Chesapeake General District Court. Id. at 65-66, 118; IAF, Tab 14, Hearing
Compact Disc (HCD) (testimony of the assistant security manager). On
November 4, 2 016, the district court found him guilty and sentenced him to
365 days incarceration with 325 days suspended. IAF, Tab 6 at 105, 120. The
appellant, through his attorney, appealed the district court judgment to the circuit
court. Id. at 72, 104; HCD (testimony of the appellant).
¶3 Between November 2016 and June 2017, while the circuit court appeal was
pending, the ass istant security manager emailed the appellant at least five times
requesting information and documentation regarding his court date. IAF, Tab 6
at 67-71. The appellant went to the assistant security manager’s office
approximately eight to ten times durin g this period to discuss his court case, but
he did not disclose that he had been convicted by the district court or that he had
filed an appeal to the circuit court; instead, he repeatedly stated that his trial had
been rescheduled and was “continued” or “continuing.” HCD (testimon y of the
3
appellant and the assistant security manager). He testified that he asked the
assistant security manager to contact his criminal defense attorney for
information because he did not understand the situation but that the assistant
security manager did not do so . HCD (testimony of the appellant). In June 2017,
the assistant security manager searched the district court’s online case
information system and discovered that the appellant had been found guilty and
sentenced on November 4, 2016, and that he had appealed the judgment to the
circuit court. HCD (testimony of the assistant security manager) ; IAF, Tab 6
at 120. The assistant security manager also looked at the circui t court ’s online
docket and discovered that the appellant’s trial was scheduled for July 11, 2017.2
HCD (testimony of the assistant security manager ); IAF, Tab 6 at 72. In a
June 2017 meeting with the appellant, his supervisor, and the assistant security
manager, the appellant stated that his court date had been postponed multiple
times , but he did not disclose that he had been found guilty or that he had filed an
appeal. HCD (testimon y of the appellant, his supervisor, and the assistant
security manager ). Although the appellant invited them to contact his criminal
defense attorney for information, they testified that it was his burden to provide
information about his criminal case and that it was not their responsibility to
contact his lawyer for inform ation . HCD (testimony of the appellant , his
supervisor , and the assistant security manager). The agency placed the appellant
on administrative leave pending an investigation into his conduct on June 30,
2017. IAF, Tab 6 at 134-35.
¶4 After a July 11, 2017 trial, the Circuit Court for the City of Chesapeake
dismissed the charge against the appellant. IAF, Tab 6 at 106. In February 2018,
the circuit court granted his petition to have all records of the criminal charge
expunged from his record. IAF, Tab 10 at 12 -13.
2 The docket report reflects that the appellant’s circuit court trial was rescheduled four
times. IAF, Tab 6 at 72.
4
¶5 On December 13, 2017, the agency proposed to remove the appellant on the
basis of one charge o f failing to provide information regarding his arrest
supported by the following narrative specification:
On August 16, 2016, you were arrested for sexual battery of a
woman you administered a sleep study to at an outside sleep
laboratory. Upon your return to work, I asked you about the status
of your arrest and you told me that the arrest was a misunderstanding
and you were taking care of it. In Oc tober 2016, the assistant
security manager requested details about the arrest and disposition in
order for the Defense Consolidation Adjudication Facility
(DODCAF) to make a determination about your security clearance.
In October 2016, you provided him a letter from your lawyer
indicating a November 4, 2016 court date. Upon further requests
from me and the assistant security manager for information about the
outcome of your November 4, 2016 court date, you failed to disclose
that on November 4, 2016 you w ere convicted in Chesapeake
General District Court of sexual battery and sentenced to 365 days of
confinement, with 325 of those days suspended. Instead you
repeatedly told me and the assistant security manager that your
November 4, 2016 court date had be en continued. After conducting
a search of the Virginia Courts Case Information system in mid -June
2017, the assistant security manager learned that you had been
convicted of sexual battery on November 4, 2016 and that you were
scheduled for another trial on July 11, 2017. When you were asked
by the assistant security manager in late -June 2017 about what he
found, you denied going to trial and having been found guilty.
Additionally, in your statement during the command’s July 2017
fact-finding investigat ion, you wrote that you were not told that you
were guilty or not guilty, despite court records from November 2016,
to the contrary. To date, the only documentation you provided to the
assistant security manager was the arrest warrant and an October 5,
2016 letter from your lawyer stating the hearing was scheduled for
November 16, 2016. You also provided a June 8, 2017 court order
and a blank expungement petition to the investigating officer during
the July 2017 fact -finding investigation .
IAF, Tab 6 at 9 6-97. The appellant provided an oral response to the proposed
removal , insisting that he had been honest and that he had continually asked the
assistant security manager to contact his lawyer for information . Id. at 90-94. In
5
a March 1, 2018 decision le tter, the deciding official found the charge supported
by the evidence and remove d the appellant effective March 9, 2018. Id. at 28 -31.
¶6 The appellant timely appealed his removal to the Board, requested a
hearing, and raised an affirmative defense of retal iation for equal employment
opportunity (EEO) activity. IAF, Tab 1. In an order and summary of the status
conference, the administrative judge informed the parties that he construed the
agency’s charge as one involving lack of candor, set forth the appli cable law and
burdens of proof, and stated that, if either party disagreed with the order and
summary, they must file a written objection within 5 days. IAF, Tab 8. Neither
party submitted an objection.
¶7 After holding a hearing by video teleconference, the administrative judge
issued an initial decision finding that the agency failed to prove the charge,
nexus, or the reasonableness of the penalty and reversed the agency’s action.
IAF, Tab 16, Initial Dec ision (ID) at 8-15, 22. He also found that the appellant
failed to prove his EEO reprisal affirmative defense. ID at 20 -22. The agency
has filed a petition for review of the initial decision, the appellant has responded,
and the agency has replied. Pet ition for Review (PFR) File, Tabs 1, 3 -4.3
3 It is undisputed that the agency provided interim relief. Specifically , the appellant
submitted with his response a Standard Form 50 reflecting that the agency canceled his
removal as of its effective date. PFR File, Tab 1, Tab 3 at 9, 11. The appellant argues
that, because the agency canceled the removal in its entirety and began processing his
back pay, the appeal must be dismissed as moot. PFR File, Tab 3 at 9. In its reply, the
agency argues that it attempted in good faith to comply with the interim relief order and
that, although it inadvertently exceeded the interim relief order, the appeal is not moot.
PFR File, Tab 4 at 5 -6. We find that the agency has exceeded the requirements of the
interim relief order by canceling the removal rather than reinstating the appellant from
the date of the initial decision. Although an argument could be m ade that the agency’s
petition for review should be dismissed because canceling the action from its effective
date rendered the petition moot, the Board has held that such an action does not require
dismissal. See Nanette v. Department of the Treasury , 92 M.S.P.R. 127 , ¶ 13 n.1 (2002)
(declining to dismiss an agency’s petition for review as moot when the agency has in
good faith and inadvertently exceeded the requirements of an interim relief order),
aff’d , 155 F.3d 568 (Fed. Cir. 1998) (Table). Accordingly, the Board exercises its
discretion not to dismiss the agency’s petition for review despite the fact that the
6
ANALYSIS
The agency proved the charge by preponderant evidence.
¶8 As noted above, the administrative judge construed the agency’s charge of
failure to provide information regarding the arrest and accompanying narrat ive
specification as a charge of lack of candor. IAF, Tab 8 at 2. The parties have not
challenged the administrative judge’s decision to construe the charge in this
manner, and we agree that the charge and specification read together reasonably
allege th at the appellant lacked candor. See George v. Department of the Army ,
104 M.S.P.R. 596 , ¶ 7 (2007) (providing that, i n resolving th e issue of how a
charge should be construed, the Board examines the structure and language of the
proposal notice and the decision notice , as well as the accompanying
specifications and circumstances) , aff’d , 263 F. App’x 889 (Fed. Cir. 2008 ); see
also Ludlum v. Department of Justice , 278 F.3d 1280 , 1284 (Fed. Cir. 2002)
(stating that lack of candor is a flexible charge involving a failure to provide
complete and accurate information but not requiring proof of intent). Therefore,
we do not disturb the administrative judge’s decision to construe the charge as
one of lack of candor.
An agency alleging lack of candor must prove the following elements by a
preponderance of th e evidence: (1) that the employee gave incorrect or
incomplete information; and (2) that he did so knowingly.4 Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 23 (2016) , clarified on other
grounds by Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 23-24. When , as here, the agency ’s charge contains a narrative
appellant submitted evidence showing that the agency exceeded the interim relief order.
See, e.g ., Lavette v. U.S. Postal Service , 96 M.S.P.R. 239 , ¶¶ 12 -15 (2004) (declining to
dismiss the agency’ s cross petition for review despite evidence that it exceeded the
requireme nts of the interim relief order by canceling the action appealed) .
4 A preponderance of the evidence is defined as the degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to find
that a contes ted fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
7
explanation for the basis of its action, the agency may sustain its charge by
proving one or more of the incidents described therein; proof of every incident is
not requir ed. See Otero v. U.S. Postal Service , 73 M.S.P.R. 198 , 204 (1997).
¶9 The administrative judge found that the agency’s narrative specification
alleged the following three separate instances of lack of candor : (1) when the
appellant failed to disclose that he was convicted on November 4, 2016, in district
court of sexual battery and sentenced; (2) when, in June 2017, he “denied goin g
to trial and having been found guilty”; and (3) when, in July 2017 , he wrote that
he was not told that he was “ guilty or not guilty. ” ID at 8 -9. The administrative
judge found that the agency did not prove that the appellant lacked candor by
denying he was convicted or found guilty because, under Virginia state law
governing misdemeanor prosecutions, an appeal to the circuit court annuls the
judgment of the district court as if there had been no previous trial and entitles a
defendant to de novo review in the circuit court. ID at 11 -12. He also found that,
even if the appellant expressly denied going to trial, there was no evidence that he
knew such statement was incorrect given his unrefuted hearing testimony about
his November 4, 2016 court appearanc e—namely, that he sat in a large courtroom
while other proceedings were conducted, he was not allowed to testify or offer
exculpatory video evidence, and his attorney told him not to worry and that there
would be another proceeding before a new judge. ID at 12 -13. He further found
that the fact that the appellant offered to have the agency officials contact his
attorney undermined the agency’s theory that he was attempting to obfuscate the
existence of his district court proceeding and observed that the c ircuit court
docket entries confirmed the appellant’s assertion that his court date had been
rescheduled . ID at 13. Finally , he found that the appellant’s confusion about the
proceedings and the proper terms to apply to them were reasonable in light of
Virginia’s unique binary criminal trial process and the fact that he was not trained
in the law . ID at 13 -14. Thus, he did not sustain the charge. ID at 14.
8
¶10 On review, the agency argues that the Virginia law that annulled the
appellant’s conviction upon appeal cannot supersede Executive Order 12968 and
its implementing regulations, which require the appellant to provide any and all
relevant information for the purposes of a security clearance determination , and
that the administrative judge erred when he relied on state law to excuse the
appellant from disclosing information required by the executive order . PFR File,
Tab 1 at 9-18. The agency further argues that it proved the charge because it is
undisputed that the appellant was convicted and sentenced at the November 4,
2016 trial but that he failed to disclose the conviction to anyone at the agency at
any time between November 2016 and June 2017. Id. at 18 -25. The agency
claims that, even if the appellant was confused about the November 4, 2016
district court proceeding, he provided incomplete and inaccurate information to
the assistant security manager when he told h im that his case was continued
rather than truthfully disclosing that there had been a court proceeding but that he
was confused and did not understand the process. Id. at 20. The agency argues
that the record establishes an element of deception on the part of the appellant
because he knew he was obligated to provide information regarding his arrest and
criminal pr oceedings for the purposes of a security clearance determination but,
assuming as true that he was confused about the nature and outcome of his district
court proceeding, he chose to remain ignorant, did not seek clarification from his
attorney, and falsel y denied going to court. Id. at 20 -24.
¶11 We disagree with the agency’s contention that the administrative judge
erred in considering Virginia state law in determining whether the appellant
provided incorrect or inaccurate information regarding his Virgini a state criminal
proceedings and conviction. However, the fact that the appellant’s conviction
was legally annulled upon the filing of an appeal does not establish that he
provided complete and accurate information to the agency regarding his court
case. While lack of candor need not involve an affirmative misrepresentation , it
“may involve a failure to disclose something that, in the circumstances, should
9
have been disclosed to make the statement accurate and complete.” O’Lague v.
Department of Veterans Affairs , 123 M.S.P.R. 340 , ¶ 13 (2016) (quoting Ludlum
v. Department of Justice , 278 F.3d 1280 , 1284 (Fed. Cir. 2002)) .
¶12 Here, a s noted above, the a gency alleged that the appellant lacked candor
when, although he was on notice that he was required to provide the agency
information regarding his court ca se for purposes of a security clearance
determination, he failed to disclose that he had been convicted, found guilty, or
sentenced and instead repeatedly told the assistant security manager that his court
date had been “continued.” IAF, Tab 6 at 96-97. Although we defer to the
administrative judge’s determination based on hearing testimony that the
appellant was confused about the nature and outcome of his district court
appearance, we find that he failed to disclose information known to him that
would have made his responses accurate and complete. Specifically, as his
hearing testimony confirms, he was aware that he attended a court proceed ing
regarding his misdemeanor charge of sexual battery on November 4, 2016, and
that the judge rendered a decision at that time. HCD (testimony of the appellant).
In addition, he testified that his attorney told him that the judge made the wrong
decision and that he would have a second trial. Id. In failing to disclose this
information and instead maintaining that his case was “continuing” or
“continued,” the appellant knowingly provided incomplete and inaccurate
information that gave the wrong impression about the status and progression of
his court case. The fact that the appellant invited his supervisor and the assistant
security manager to contact his criminal defense attorney for information does not
negate the fact that he provided them incomplete and inaccurate information.
Thus, we find that the agency proved that the appellant lacked candor and sustain
the charge. See O’Lague , 123 M.S.P.R. 340 , ¶ 13.
The agency established nexus.
¶13 In addition to the requirement that the agency prov e the charge it has
brought against the appellant, the agency must also prove that there is a nexus,
10
i.e., a clear and direct relationship between the articulated grounds for the adverse
action and the appellant’s ability to satisfactorily accomplish his duties or some
other legitimate government interest. Canada v. Department of Homeland
Security , 113 M.S.P.R. 509 , ¶ 10 (2010). In the initial decision, the
administrative judge found that , even if he sustained the charge, it was unclear
whether the appellant’s removal for failure to disclose an intermediate step in his
criminal proceedings promoted the efficiency of the service. ID at 14 n.6. We
disagree. An employer has a right to expect its workers to be honest, trustworthy,
and candid , and lack of candor strikes at the heart of the employer -employee
relationship and directly impacts the efficiency of the service . Ludlum v.
Department of Justice , 87 M.S.P.R. 56 , ¶ 28 (2000), aff’d , 278 F.3d 1280 (Fed.
Cir. 2002) . Here, as discussed above, the appellant knowingly failed to provide
complete and accurate responses to the agency’s requests for information
regarding his criminal court proceeding for the purposes of a security clea rance
determination over the course of approximately 7 months . Accordingly , we find
that the agency established a nexus between its action and the efficiency of the
service. See id. , ¶¶ 14-25, 28 (finding that the appellant’s failure to respond fully
and truthfully during an administrative investigation directly impacted the
efficiency of the service).
The appellant failed to establish his EEO reprisal affirmative defense.
¶14 To establish a claim of EEO rep risal, an appellant must show that the
prohibited consideration was at least a motivating factor in the personnel action at
issue. Pridgen , 2022 MSPB 31 , ¶¶ 21 -22. Here, the appellant argued that his
removal was motivated by his prior EEO activity and, in support of this claim,
pointed to the temporal proximity between the prior activity and the removal, the
involvement of the d eciding official in both proceedings, and the absence of a
legitimate basis for his removal. HCD (closing argument by the appellant). In
the initial decision, the administrative judge considered these arguments but
11
found that the appellant failed to show that his removal was motivated by
retaliatory animus. ID at 20 -22. Specifically, he found that the 20 -month lapse
in time between the 2016 settlement agreement resolving the appellant’s EEO
complaint and the December 2017 proposed removal weighed agains t finding that
the EEO activity was causally connected to the adverse action. ID at 22 (citing
Clark County School Dist rict v. Breeden , 532 U.S. 2 68, 273 -74 (2001), which
explained that temporal proximity between protected EEO activity and an adverse
action “must be ‘very close,’” and an “[a]ction taken . . . 20 months later
suggests, by itself, no causality at all”) . He further found that the deciding
official testified in a convincing manner that his personal involvement in the
appellant’s prior EEO complaint had no bearing on his removal decision. ID
at 22. We agree that a 20 -month lapse of time does not suggest ca usality and
discern no basis to disturb the administrative judge’s implicit demeanor -based
determination that the deciding official credibly denied that he was motivated by
retaliatory animus. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301
(Fed. Cir. 2002) (stating that the Board must give deference to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observati on of the demeanor of witnesses testifying at a hearing ). 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 issu e of whether the appellant proved that retaliation was a
“but-for” cause of the agency’s decision . See Pridgen , 2022 MSPB 31 ,
¶¶ 20-22, 29 -33.
The penalty of removal is reasonable.
¶15 When , as here, all of the agency ’s charges are sustained, the Board will
review the agency -imposed penalty only to determine if the agency considered all
the relevant factors and exercised manageme nt discretion within the tolerable
limits of reasonableness. Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 11
12
(2010); Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981)
(articulating a nonexhaustive list of 12 factors that are relevant in assessin g the
appropriate penalty for an act of misconduct). In making this determination, the
Board mus t give due weight to the agency’ s primary discretion in maintaining
employee discipline and efficiency, recognizing that the Board ’s function is not
to displac e management’s responsibility, but to ensure that managerial judgment
has been properly exercised. Ellis , 114 M.S.P.R. 407 , ¶ 11. The Board will
modify or mitigate an agency -imposed penalty only whe n it finds the agency
failed to weigh the relevant factors or the penalty clearly exceeds the bounds of
reasonableness. Id.
¶16 In the initial decision, the administrative judge stated that, even if he had
sustained the charge, he would find that the deciding official did not properly
exercise his judgment because he improperly relied on the underlying nature of
the misdemeanor charge against the appellant and his annulled conviction in his
consideration of the Douglas factors. ID at 14-15. He also found that removal
exceeded the tolerable limits of reasonableness given the de minimis nature of the
offense and the specific facts surrounding the appellant’s criminal proceedings
under Virginia l aw. ID at 16. The agency challenges these finding on review.
PFR File, Tab 1 at 25 -27.
¶17 The record reflects that the deciding official carefully considered the
relevant Douglas factors in determining the appropriate penalty. IAF, Tab 6
at 32-35. Spec ifically, he found as aggravating factors the following: the nature
and seriousness of the appellant’s failure to be truthful to avoid the possibility of
losing his security clearance, which was a condition of his employment;
management’s loss of trust an d confidence in the appellant following his
“prolonged concealment of information”; his May 24, 2016 letter of reprimand
for disrespectful conduct; the notoriety of the offense; and the fact that the
appellant was on notice of his obligation to provide inf ormation regarding any
action taken as a result of his arrest for the purposes of a security clearance
13
determination. Id. He appeared to consider as mitigating factors the appellant’s
11.5 years of service and recent increase in productivity. Id. at 33. He also
considered the appellant’s claim that his attorneys advised him not to discuss his
case with anyone but found that there were times the appellant talked about his
case and that he “conveniently picked and chose what [he] wanted to share” and
was attempting to use his attorneys as a “shield” from his misconduct. Id. at 35.
In addition, he considered the absence of comparator evidence, the table of
penalties, and the adequacy and effectiveness of alternative sanctions but
concluded that removal wa s the appropriate penalty. Id. at 32 -35.
¶18 We disagree with the administrative judge’s conclusion that the deciding
official impermissibly relied on the underlying nature of the misdemeanor charge
or the district court conviction in determining the approp riate penalty . IAF,
Tab 6 at 32 -35. While the deciding official indicated on his Douglas factors
worksheet that the appellant “failed to tell the command the result of [his]
November 4, 2016 court appearance in which [he was] convicted of sexual
battery,” he also acknowledged that the appellant appealed the conviction, was
later found not guilty, and had his record expunged. Id. at 32. Thus, it is clear
that the deciding official did not consider the annulled conviction to b e the final
disposition of the appellant’s criminal case . In addition, as discussed above, the
agency proved that the appellant lacked candor when he failed to disclose
important steps in the course of his criminal proceeding —specifically, that he
attende d a court proceeding, received a decision, and filed an appeal —and instead
led the agency to believe that his court case had simply been continued. As such,
the deciding official properly considered the appellant’s failure to be truthful
about his court p roceeding in his assessment of the appropriate penalty.
Furthermore, although the deciding official mentioned the nature of the
misdemeanor charge in his discussion of several of the Douglas factors , he
emphasized that he had lost trust in the appellant b ecause of his failure to be
truthful, not because of the factual basis of the charge. Id. at 32 -35.
14
¶19 In light of the foregoing, we find that the deciding official properly
considered the relevant Douglas factors and properly exercised his managerial
judgme nt in imposing the appellant’s removal. Moreover, we find that the
penalty of removal does not exceed the tolerable limits of reasonableness for the
sustained charge of lack of candor. See, e.g. , Smith v. Department of the Interior ,
112 M.S.P.R. 173, ¶ 26 (2009) ( finding the penalty of removal appropriate for
lack of candor and unauthorized absences); Kamahele v. Department of Homeland
Security , 108 M.S.P.R. 666 , ¶¶ 2, 15 (2008) ( finding the penalty of removal
reasonable when the appellant demonstrated lack of candor and inappropriate
conduct) .
NOTICE OF APPEAL RIG HTS5
This is the final decision of the Merit Systems Protection Board in this
appeal . Title 5 of the Code of Federal Reg ulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113 (c)). You may obtain review of t his final decision. 5 U.S.C.
§ 7703 (a)(1). By statute, the nature of your claims determines the time limit for
seeking such review and the appropriate forum with which to file. 5 U. S.C.
§ 7703 (b). Although we offer the following summary of available appeal rights,
the Merit Systems Protection Board does not provide legal advice on which
option is most appropriate for your situation and the rights described below do
not represent a s tatement of how courts will rule regarding which cases fall
within their jurisdiction. If you wish to seek review of this final decision, you
should immediately review the law applicable to your claims and carefully follow
all filing time limits and requi rements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights i ncluded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
16
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your represe ntative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact informatio n for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alter natively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any suc h request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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
compete nt jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cas es with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
If you submit a petition for judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the 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 th e courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HWIG_HASSAN_DC_0752_18_0368_I_1_FINAL_ORDER_2062927.pdf | 2023-08-25 | null | DC-0752 | NP |
2,764 | https://www.mspb.gov/decisions/nonprecedential/CROFT_SARAFINA_A_AT_0752_17_0703_I_2_FINAL_ORDER_2062485.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SARAFINA A. CROFT,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -17-0703 -I-2
DATE: August 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amanda Smith , Esquire, Buffalo , New York, for the appellant.
Luis E. Ortiz -Cruz , Esquire, Orlando, Florida, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The agency ha s filed a petition for review of the initial decision, which
reversed the agency’s removal action . For the reasons discussed below, we
GRANT t he agency’s petition for review , REVERSE the administrative judge’s
finding that the agency failed to prove its c harge , AFFIRM 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 determination that the appellant failed to establish her affirmative
defenses , and SUSTAIN the removal action.
BACKGROUND
¶2 The appellant was employed as a GS -09 Training Specialist with the
Department of Veterans Affairs Medical Center (VAMC) in Orlando , Florida .
Croft v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -17-0703 -
I-1, Initial Appeal File (IAF) , Tab 1 at 1, Tab 5 at 24 , 60. On June 5, 2017 , the
agency proposed her removal based on a single charge of disruptive b ehavior.
IAF, Tab 5 at 60 -61. In support of its charge, the agency provided the following
specification:
On May 10, 2017, you were on duty working the 7:30 am – 4 pm
tour of duty in the Educatio n Service. At approximately 3: 15 pm,
you called the [Department of Veterans Affairs (VA)] Crisis Line
stating you felt you wanted to kill your supervisor. Upon the arrival
of VA Police officers to your office, you again stated multiple times
that you wanted to kill your supervisor. You said y ou wanted to kill
your supervisor due to the constant harassment you claim to be
under, or words to that effect.
Id. at 60. Thereafter, the deciding official sustained the proposed removal . Id.
at 30-32. The appellant ’s removal was effective August 11, 2017. Id. at 24 , 30.
¶3 Subsequently, the appellant filed a Board appeal challenging the removal
action and raising affirmative defenses of sex, race, and disability discrimination,
as well as reprisal for protected equal em ployment opportunity (EEO) activity .
IAF, Tab 1 at 2, 7 -21, Tab 23 . Without holding a hearing , the administrative
judge issued an initial decision reversing the agency’s removal action.2 Croft v.
Department of Veterans Affairs , MSPB Docket No. AT -0752 -17-0703 -I-2, Appeal
2 While the appellant initially requested a hearing, IAF, Tab 1 at 1, she subsequently
withdrew her hearing request, Croft v. Department of Veterans Affairs , MSPB Docket
No. AT -0752 -17-0703-I-2, Appeal File (I -2 AF), Tab 5. The administrative judge
initially dismissed the appeal without prejudice pursuant to the appellant’s motion, IAF ,
Tab 28, Tab 31, Initial Decision, and the appel lant timely refiled her appeal, I-2 AF,
Tab 1 .
3
File (I -2 AF) , Tab 12, Initial Decision (ID) . Concerning the charge, the
administrative judge found that the appellant did not engage in disruptive conduct
as alleged because she made her statements to a Veterans Crisis Line (VCL)
repre sentative in the context of seeking professional treatment for anxiety and
stress she experienced at work.3 ID at 7. The administrative judge found that,
accordingly, the agency failed to prove its charge by a preponderance of the
evidence and its removal action must be reversed. Id. The administrative judge
then considered the appellant’s affirmative defenses and determined that she
failed to establish her claims of discrimination and reprisal for protected EEO
activity . ID at 7 -12.
¶4 The agency t imely filed a petition for review. Petition for Review (PFR)
File, Tab 1. On review, the agency contends that , contrary to the administrative
judge ’s finding, it prove d its charge .4 PFR File, Tab 1 at 15, 21 -27. The agency
also alleges that the adminis trative judge erred by precluding rebuttal evidence,
crediting the appellant’s allegations , and overlooking parts of the record. Id.
at 27-32. The appellant has filed a response to the agency’s petition, PFR File,
Tab 7, and the agency has filed a reply to the appellant’s response, PFR File,
Tab 8.5
3 The VCL’s purpose is “to provide [v]eterans, [s]ervice [m]embers, and their family
members, who are in crisis or at risk for suicide, with immediate access to suicide
prevention and crisis intervention services.” IAF, Tab 26 at 15 . Among other services,
VCL representatives provide “tele phone . . . crisis intervention . . . and referrals for
mental health treatment.” Id.
4 As part of its petition for review, the agency has provided evidence that it complied
with the administrative judge’s order for interim relief . PFR File, Tab 1 at 3 4, 36, 38,
40. The appellant does not raise the issue of interim relief on review; therefore, we do
not further address it . PFR File, Tab 7.
5 The appellant has not filed a cross petition for review challenging the administrative
judge’s findings regardi ng her affirmative defenses. Thus, we do not further address
those findings here.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The agency proved its charge of disruptive b ehavior.
¶5 The administrative judge found that, t o prove a charge of disruptive
behavior, an agency must establish the following: (1) the appellant engaged in
the conduct described under the charge ; and (2) that the conduct caused a
disruption. ID at 2. Neither party disagreed be low or on review that the agency
was required to establish these elements to prove its charge , and we ag ree that a
disruptive behavior charge is comprised of these two elements .6 Under its charge,
the agency set forth a single specification with a narrative describing the
appellant’s misconduct. IAF, Tab 5 at 60. An agency need not prove every part
of the specification under lying its charge to prove the charge . See Otero v. U.S.
Postal Service , 73 M.S.P.R. 198 , 204 (1997) (noting that, to prove its charge, an
agency need not establish every portion of the narrative description underlying
the charge) . As previously noted, t he agency argues on review that it proved its
charge. PFR File, Tab 1 at 15, 21 -27. We agree.7
¶6 As noted by the administrative judge, the appellant does not dispute having
told the VCL representative that she wanted to kill her supervisor . ID at 3. The
record reflects that the VCL representative subsequently contacted the VA police
and that the pol ice were dispatched to the appellant’s location at the VAMC .
IAF, Tab 5 at 71. The record reflects that the appellant was still on the phone
with the VCL representative when the VA police arrived. Id. While on the phone
6 In setting forth the elements for a charge of disruptive behavior, the administrative
judge cited to Colon v. Department of the Navy , 58 M.S.P.R. 190 , 197 -98 (1993) . ID
at 2. In Colon , the Board found that, to prove its charge of disorderl y conduct, the
agency needed to establish that the employee engaged in the actions described under the
charge and that the conduct was disorderly. Colon , 58 M.S.P.R. at 197 -98. By analogy,
we find that, to prove a charge of disruptive behavior, an agency must establish that an
employee engaged in the conduct described under the charge and that the conduct was
disruptive .
7 In light of this finding , we need not reach the agency’s argument s that the
administrative judge abused his discretion in precluding rebuttal evidence and
overlooked record ev idence .
5
with the VCL representative and in the presence of the police, the appellant stated
multiple times that she wanted to kill her supervisor. Id.
¶7 In addressing whether the statements set forth under the charge caused a
disruption, the administrative judge acknowledged that the appellant’s statements
to the VCL representative were upsetting to the appellant’s supervisor and to a
coworker, but he found that these employees only became aware of the statements
when to ld by the VA police. ID at 5. Thus, according to the administrative
judge’s reasoning, the disruption was caused by the VA police and not the
appellant. The administrative judge found that the record is devoid of
information concerning when a VCL representative must “break confidentiality.”
Id. Citing the Board’s decisions in Larry v. Department of Justice , 76 M.S.P.R.
348 (1997) , and Powell v. Department of Justice , 73 M.S.P.R. 29 (1997), the
administrative judge noted that the Board has been troubled by cases in which
agencies have used statements made in the course of an appell ant’s contact with a
counselor as a basis for discipline. ID at 6.
¶8 We find that the administrative judge’s focus on whether the VCL
representative improperly “broke confidentiality” is misplaced. The U.S.
Supreme Court has recognized, in some circumstan ces, a licens ed
psychotherapist -patient privilege in Federal litigation . Jaffee v. Redmond ,
518 U.S. 1 , 15-16 (1996). Under the circumstances here, however, we need not
determine whether the appellant’s statements to the VCL representative were
covered by a privilege that precludes their use in the agency’s removal action.8
8 It appears that , in his adjudication of the agency’s charge , the administrative judge
assumed that the appellant’s statements to the VCL representative were covered by a
privilege. ID at 5 -7. However, there is no record evidence indicating that VCL
representatives are licensed psychotherapists. Moreover, as the party asserting the
privilege, it was the appellant’s burden to establish the requirements for invoking the
privilege. See Gubino v. Department of Transportation , 85 M.S.P.R. 518 , ¶ 18 (2000)
(stating that a party asserting an evidentiary privilege has the burden of establishing it).
The administr ative judge , therefore, should not have assumed the existence of a
privilege in this case.
6
Nor must we determine whether it was proper for the VCL r epresentative to share
these statements with the police. Assuming arguendo that the appellant’s initial
statements to the VCL representative were privileged, the record reflects that the
appellant repeated these statements several times in the presence of the police, as
set forth under the specification . IAF, Tab 5 at 60, 71. The appellant’s repetition
of these statements in the presence of the police vitiates any privilege . See
Gray v. Government Printing Office , 111 M.S.P.R. 184 , ¶ 13 (2009) (finding that
the appellant’s repetition of statements initially made to a nurse in front of the
nurse and non -medical employees defeated any potential privilege) .
¶9 Moreover, contrary to the administrative judge’s findings, the Board’s
decisions in Larry and Powell are distinguishable from the instant case. In Larry ,
the agency charged the appellant with threatening a supervisor based on
statements that the appellant made to a psychotherapist of the agency’s Empl oyee
Assistance Program (EAP). Larry , 76 M.S.P.R. at 355. The Board found that the
agency failed to prove its charge because the evidence showed that the appellant
made the state ments in the course of psychotherapy. Id. at 358-59. Similarly, in
Powell , the agency charged the appellant with threatening to kill five agency
employees based on statements he made in a telephone conversation with an EAP
counselor. Powell , 73 M.S.P.R. at 31 -32. The Board found that the appellant in
Powell was requesting counseling and was not made aware that his statements
might not be kept confidential , and, thus, it would be contrary to the policy and
In addition, the administrative judge addressed the appellant’s argument that the VCL’s
representative’s disclosure violated agency policy in the context of the charge . ID at 5.
This argument, however, constitutes a harmful procedural error claim that the
appellant —and not the agency —has the burden of proof on. See 5 C.F.R. § 1201.56 (c).
Moreover, even if t his argument were relevant to the charge, the administrative judge
did not address the agency’s arguments regarding why the VCL representative was
required to disclose the appellant’s statements to the VA police. PFR Tab 1 at 18-22;
IAF, Tab 25 at 17. We are not, therefore persuaded by the administrative judge’s
reasoning on these issues. However, as explained below , we need no t reach these
questions in light of our finding that any privilege was vitiated when the appellant
repeated her statements to the VCL representative in front of the police.
7
purpose of the EAP to take action against him. Powell , 73 M.S.P.R. at 35 -36.
The same concern s regarding confidentiality and privilege at issue in Larry and
Powell are not present here where the appellant repeated her statemen ts in front
of the VA police . Thus, we find that the Board’s decisions in Larry and Powell
are not controlling here .
¶10 Rather, the circumstances in this case are similar to those in Gray ,
111 M.S.P.R. 184 . While at the agency’s medical unit, the appellant in Gray
stated in front of two nurses that he was going to kill his supervisor. Id., ¶¶ 4-5.
After the agency’s Safety Manager and an Occupational Safety and Health
Specialist , who one of the nurses calle d, arrived on the scene , the appellant again
stated that he was going to kill his supervisor in the presence of these two
non-medical employees as well as in front of one of the nurses he had initially
made this statement to . Id., ¶ 6. The Board found that, even assuming the
appellant’s initial statements to the nurse s were privileged , the appellant’s
repetition of the statements to the non -medical employees defeated that privilege.
Id., ¶ 13. The Board in Gray thus consider ed the appellant’s statemen ts in
determining whether the agency proved its charge. Id., ¶ 15-16. Similarly, we
find here that it is proper for us to consider the appellant’s statements made in the
presence of the VA police as a basis for the agency’s action.
¶11 Having determined that it is appropriate for us to consider these statements ,
we turn to the issue of whether the statements cause d a disruption. Following the
appellant’s statements to the VA police, the police informed the appellant’s
supervisor that the appellant had stated that she wanted to kill him .9 IAF, Tab 5
9 The administrative judge found that the agency presented no legal reason or
requirement for the police’s disclosure of these statements to the appellant’s supervisor.
ID at 5. However, to the extent the appel lant is arguing that the agency failed to follow
its procedures regarding confidentiality, any such allegation is a harmful error claim.
Because the appellant has the burden of proof on any such claim, the administrative
judge improperly placed the burden of proof on this issue on the agency. See 5 C.F.R.
§ 1201.56 (c). Further , pursuant to agency policy, the VA police should offer assistance
8
at 71 , 73, 76 . The record reflects that, as a result, the appellant’s supervisor
suffered anxiety and fear for his safety and that of his family. I-2 AF, T ab 10
at 11. In an email he sent following the May 10, 2017 incident , the appellant’s
supervisor stated that he found “it incomprehensible that an employee can say she
wants to kill her supervisor, but then can return to work the next day as if not hing
has happen ed.” IAF, Tab 5 at 95. He expressed a deep con cern for the safety of
agency employees, stating that he was concerned that the appellant would return
to the office and engage in similar behavior. Id. He further stated that agency
employees did not feel protected by the agency. Id. Moreover , in an a ffidavit, he
stated that, as a result of the appellant’s statements, he sought law enforcement
advice on how to protect himself and his family and increased his use of
anti-anxiety medication. I-2 AF, Tab 10 at 11. He said that, absent the
anti-anxiety m ediation, his sleep would be affected. Id.
¶12 The police also informed the Administrative Officer for Education Service
(Administrative Officer) that the appellant had stated she wanted to kill her
supervisor . Id. at 12. The Administrative Officer stated in an affidavit tha t, after
learning about the appellant’s statement, she “ was nervous and felt f ear for
[herself] and staff.” Id. She stated that she subsequently became very aware o f
her surrounding s in an attempt to ensure that the appellant wasn’t following her
and that the “fear was paralyzing sometimes and made [her] think about getting
another job or . . . working from home.” Id.
¶13 Based on the foregoing, we find that the appellant’s statements in the
presence of the VA police caused a disrupti on. Accordingly, we reverse the
administrative judge’s finding that the agency failed to prove its charge of
disruptive behavior, and we sustain the charge .
and respond to calls involving allegations of employee generated disruptive behavior,
and such incidents must be reported to supervisors. IAF, Tab 5 at 126, 130 -31.
9
The agency established nexus and that the penalty of removal is reasonable under
the circumstances .
¶14 Because the administrative judge did not sustain the agency’s charge, he did
not determine whether the agency established nexus and the reaso nableness of the
penalty. Thus, we will now make those determinations. To prove nexus, the
agency must show a clear and direct relationship between the articulated grounds
for the adverse action and either the appellant’s ability to accomplish her duties
satisfactorily or some other legitimate Government interest. Canada v.
Department of Homeland Security , 113 M.S.P.R. 509 , ¶ 10 (2010). It is well
settled that there is sufficient nexus between an employee’s conduct and the
efficiency of the service where the conduct occurred at work. See, e.g., Parker v.
U.S. Postal Service , 819 F.2d 1113 , 1116 (Fed. Cir. 1987) (finding that the
agency established nexus where the conduct occurred in part at work) . We find
that the agency established nexus here because the misconduct occurred at work
and, by its very nature, was disruptive to the efficiency of the service . See
Miles v. Department of the Navy , 102 M .S.P.R. 316 , ¶ 11 (2006) (determining that
the misconduct at issue —assaulting and threatening a coworker, disrespectful
conduct, and unauthorized possessions, use or manufacture of personal tools —is
clearly related to the efficiency of the service) ; see al so Battle v. Department of
Transportation , 63 M.S.P.R. 403 , 410 (1994) ( finding that threatening a
supervisor affects the agency’s ability to maintain a safe workplace and thus
impinges upon the efficiency of the service ).
¶15 Regarding the penalty, w here, as here, all of the agency’s charges are
sustained, the Board will review the agency -imposed penalty only to determine i f
the agency considered all of the relevant factors and exercised management
discretion within the tolerable limits of reasonableness. Davis v. U.S. Postal
Service , 120 M.S.P.R. 457, ¶ 6 (2013); Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 306 (1981). 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
10
appropriate penalty for an act of misconduct. These factors include the nature
and seriousness of the offense, the appellant’s past di sciplinary record, her past
work record, her potential for rehabilitation, and mitigating circumstances
surrounding the offense. Id. The agency need not address all 12 factors, merely
those that are relevant. Douglas , 5 M.S.P.R. at 306. The Board will modify or
mitigate an agency -imposed penalty only where it finds that the agency failed to
weigh the relevant factors or the penalty clearly exceeds the bounds of
reasonableness. Davis , 120 M.S.P.R. 100, ¶ 6.
¶16 We find that the deciding official appropria tely considered the relevant
factors in deciding to remove the appellant . IAF, Tab 5 at 26-28, 30 .
Specifically, the deciding official considered the seriousness of the offense and
determined that the nature of the misconduct was “very serious and negati vely
impacts management’s ability to maintain a safe and therapeutic environment for
patients and staff members.” Id. at 26 ; see Davis , 120 M.S.P.R. 457 , ¶ 7 ( noting
that the seriousness of the offense is always one of the most important factors in
assessing the reasona bleness of an agency’s penalty determination) . He found
that, while the misconduct may not have been intentionally di sruptive, it
nonetheless had a negative effect on the efficiency of the service. IAF, Tab 5
at 26. The deciding official considered the appellant’s potential for
rehabilitation , and he noted that he had “no confidence in [her] ability to return to
work and perform her duties without like incidents occurring or carrying through
with the thoughts she related about wanting to harm her supervi sor.” Id. In
addition, the deciding official considered relevant mitigating factors. For
example, he considered that the appellant had 14 years of prior Federal service
and that she had received a Fully Successful rating for her last performance
apprais al. Id. at 26, 30, 62. The deciding official also properly considered the
medical documentation the appellant provided and found that her medical
condition had an effect on her misconduct and was a mitigating factor. Id. at 28.
He found, however, that there was no evidence that the medical condition had
11
been remedied . Id. Accordingly , he properly determined that the appellant’s
medical impairment was not a significant mitigating factor . Id.; see Lentine v.
Department of the Tr easury , 94 M.S.P.R. 676 , ¶ 14 n.3 (2003) (noting that a
medical or mental impairment is not a significant mitigating factor in th e absence
of evidence that the impairment can be remedied or controlled). Furthermore , the
deciding official considered lesser penalties and alternative sanctions but
determined that, in light of the nature of the offense, any such alternatives would
not be appropriate. IAF, Tab 5 at 28.
¶17 In her submissions below, the appellant raised a claim of disparate
penalties. IAF, Tab 1 at 18; I-2 AF, Tab 11 at 20 -21. Specifically, she alleged
that a nother employee at the Orlando VAMC “expressed thoughts of shooti ng her
supervisors” but was placed on administrative leave and reassigned instead of
being removed. I -2 AF, Tab 11 at 20 -21. The appellant alleges that the alleged
comparator was only removed after a second incident of making threats. Id.
at 21. The appellant contends that, accordingly, she was subjected to a disparate
penalty because she was not provided a “‘warning’ or offer of reassignment.” Id.
¶18 The consistency of the penalty with those imposed upon other employees
for the same or simi lar offenses is one factor to be considered in determining the
reasonableness of the agency -imposed penalty. Douglas , 5 M.S.P.R. at 305. The
Board has recently clarified that, in assessing such a claim, the relevant inquiry is
whether the agency knowingl y and unjustifiably treated employees differently.
Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14. The universe of potential
comparators will vary from case to case, but it should be limited to those
employees whose misconduct and/or other circumstances closely resemble those
of the appellant . Id., ¶ 13. Here, the appellant does not allege that the alleged
comparator worked in t he same unit or under the same supervisor as she did. Id.
(noting that the fact that two employees are from different work units and/or
supervisor chains remains an important factor in determining whether it is
appropriate to compare penalties they are gi ven). Moreover, there is no
12
indication that the alleged comparator’s misconduct closely resembled that of the
appellant’s; f or example, there is no evidence that the alleged comparator’s
conduct involved the police, that the alleged comparator’s “thoughts” of harming
her supervisors closely resembled the appellant’s stateme nts to the police , and
that the same mitigating and aggravating factors that are relevant in assessing the
penalty in this case also applied to the alleged comparator ’s case . In addition,
there is no indication that the agency knowingly treated the alleged comparator
differently from the appellant. Based on the foregoing, we find that the appellant
has failed to establish that the agency knowingly and unjustifiably treated
empl oyees differently. Singh , 2022 MSPB 15, ¶ 14.
¶19 In light of the above , we find that the penalty of removal is within the
tolerable l imits of reasonableness and that it promotes the efficiency of the
service. The agency’s removal action is there fore sustained.
NOTICE OF APPEAL RIG HTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in t his matter. 5 C.F.R. § 1201.113 . You may obtain
review of t his final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summar y of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights inclu ded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
within the applicable time li mit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
14
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision bef ore you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling c ondition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can b e found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision be fore you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 o f Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have rai sed
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (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 Circu it or any court of
appeals of competent jurisdiction. The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington , D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
16
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono f or information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a give n 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_Locato r/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CROFT_SARAFINA_A_AT_0752_17_0703_I_2_FINAL_ORDER_2062485.pdf | 2023-08-24 | null | AT-0752 | NP |
2,765 | https://www.mspb.gov/decisions/nonprecedential/REED_JAMES_D_CH_1221_17_0153_W_1_FINAL_ORDER_2062550.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES D. REED,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -17-0153 -W-1
DATE: August 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kurt Cummiskey , Esquire, St . Louis, Missouri, for the appellant.
Erin E. Milligan , Esquire, St. Louis, Missouri, for the agency.
Mark B. Zorfas , Esquire, North Chicago, Illinois , for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
dismissed this individual right of action (IRA) appeal for lack of jurisdiction .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 on e 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 cas e; 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 mater ial
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we 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. Exc ept as expressly MODIFIED by
this Final Order to clarify that we have considered whether the appellant
nonfrivolously alleged that he made a protected disclosure to agency officials and
not to the Office of Special Counsel (OSC) , we AFFIRM the initial decision.2
BACKGROUND
¶2 The agency appointed the appellant to a Staff Nurse position pursuant to
38 U.S.C. § 7401 (1). Reed v. Department of Veterans Affairs , MSPB Docket
No. CH-0752 -16-0151 -I-1, Initial Appeal File ( 0151 IAF), Tab 5 at 20-23.3 His
nursing license was suspended on September 30, 2015. 0151 IAF , Tab 7 at 1 0.
The agency’s Employee/Management Relations Handbook requires that
employees maintain all qualifications required for employ ment and provides that
2 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.
3 Pursuant to 38 U.S.C. § 7401 (1), the agency converted the appellant’s appointment to
the excepted appointment of Nurse/Staff Nurse on October 3, 1993. 0151 IAF, Tab 5 at
20. On September 14, 2008, the agency changed his position title to Nurse Staff
RN-Outpatient. Id. at 23.
3
employees who fail to do so will be separated. Id. at 16. Thus, on October 5,
2015, upon notification that the appellant failed to maintain his license, the
agency terminated him pursuant to its authority under 38 U.S.C. § 7403 (b)(4) .
0151 IAF , Tab 5 at 24-25. The appellant appealed the termination to the Board .
0151 IAF , Tab 1. The administrative judge dismissed his appeal for lack of
jurisdiction bec ause the appointment statute did not provide for chapter 75 appeal
rights. 38 U.S.C. § § 7401 (1), 7403 (b)(4) ; Reed v. Department of Veterans
Affairs , MSPB Docket No. CH -0752 -16-0151 -I-1, Initial D ecision (Apr. 15,
2016); 0151 IAF , Tab 9.
¶3 On August 1, 2016, the appellant filed an OSC complaint . Reed v.
Department of Veterans Affairs , MSPB Docket No. CH -1221 -17-0153 -W-1,
Initial Appeal File ( 0153 I AF), Tab 1. According to the November 3, 2016 letter
from OSC notifying the appellant that it was closing the inquiry into his
allegations , the appellant asserted that he was terminated for his disclo sure in
June 2015 to the Associate Chief of Nursing that the new PACT system4 at his
facility had not been fully and properly implemented . Id. OSC informed the
appellant of his right to file an IRA appeal with the Board, and the appellant’s
appeal was timely filed. Id.
¶4 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. 0153 IAF , Tab 10 , Initial Decision (0153 ID). She found
that the appellant exhausted his administrative remedy regarding his allegation
that he was terminated in retaliation for his disclosure that the PACT system had
not been fully and pr operly implemented . 0153 ID at 4 -5. However, she
4 According to the agency’s website, “PACT” stands for “Patient Aligned Care Team.”
PACTs focus on “Partnerships with Veterans,” “Access to care using diverse methods,”
“Coordinated care among team members,” and “Team -based care with Veterans as the
center of their PACT.” Department of Veterans’ Affairs, Patient Aligned Care Team
(PACT)–Patient Care Services , http://www.patientcare.va.gov/primarycare/PACT.asp
(last visited Aug. 23, 2023).
4
considered only the information that the appellant provided to OSC and found
that it was insufficient to find a nonfrivolous allegation to OSC of a disclosure of
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health and safety. 0153 ID at 6 -10.
¶5 The appellant has filed a petition for review and the agency has responded
in opposition to the appellan t’s petition. Petition for Review (PFR) File,
Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
We modify the initial decision to clarify that we have considered whether the
appellant nonfrivolously alleged that he made a protected disclosure to agency
officia ls and not to OSC .
¶6 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (1) he made a disclosure described
under 5 U.S.C. § 2302 (b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosu re or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302 (a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417 , ¶ 8 (2016). 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) ; 5 C.F.R. § 1201.4 (s). An
allegation generally will be considered nonfrivolous when, if an individual makes
such an allegation under oath or penalty of perjury, it is more than conclusory,
plausible on its face, and material to the legal issues in the appe al. Id.
¶7 The appellant declared under penalty of perjury that, at a meeting in June
2015, he disclosed to the Associate Chief of Nursing, the Nurse Manager selectee,
and the departing Nurse Manager that the new PACT system at the facility in
which he worked had not been fully and properly implemented, that adequate
clerical support was not provided, and that licensed practical nurses (LPNs)
5
working in the facility did not have basic resources , such as te lephone lines, to
perform their jobs . 0153 IAF , Tab 1 , Tab 4 at 10 -12. A protected disclosure is
any disclosure of information that the appellant reasonably believes evidences
any violation of any law, rule, or regulation, gross mismanagement, a gross waste
of funds, an abuse of authority, or a substantial and specific dange r to public
health or safety.5 5 U.S.C. § 2302 (b)(8); Bradley v. Department of Homeland
Security , 123 M.S.P.R. 547, ¶ 7 (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
disclosure evidenced one of the circumstances described in 5 U.S.C. § 2302 (b)(8).
Bradley , 123 M.S.P.R. 547, ¶ 7. Here, the appellant asserted , in his Board appeal ,
that he made his disclosure to agency officials . 0153 IAF , Tab 4 at 10 -12.
Nevertheless , the administrative judg e appears to have assess ed the appellant’s
disclosures on the basis of the information he disclosed to OSC .6 0153 ID
at 5-10.
¶8 Pursuant to 5 U.S.C. § 2302 (b)(8)(B) (ii), an appellant may seek corrective
action on the basis of retaliation for di sclosures to OSC of gross mismanagement,
a gross waste of funds, an abuse of authority, or a substanti al and specific danger
to public health or safety .7 However, the appellant is not asserting retaliation on
5 The appellant does not reassert that he made protected disclosures of a gross waste of
funds or an abuse of authority. PFR File, Tab 1; 0153 ID at 7 -8. Accordingly, we do
not address these claims on review.
6 The administrative judge specifically found that the appellant exhausted his
administrative remedy regarding these claims. 0153 ID at 4 -5. Thus, her assessment of
the adequacy of the claims was unrelated to the eleme nt of exhaustion.
7 An appellant may also seek corrective action in an IRA appeal based on a claim that
he was retaliated against for “ cooperating wit h or disclosing information to . . . the
Special Counsel, in accordance with applicable provisions of law .” 5 U.S.C.
§ 2302 (b)(9)(C). As noted herein, however, the appellant is alleging that he was
retaliated against for his disclosures to agency management officials, and not for
6
the basis of such disclosures and is instead asserting that he made a protected
disclosure to agency officials. Accordingly, we modify the initial decision to
clarify that we are instead considering , pursuant to 5 U.S.C. § 2302 (b)(8),
whether the appellant nonfrivolously alleged that he made a protected dis closure
to agency officials .
The appellant failed to nonfrivolously allege that he made a protected disclosure.
¶9 The appellant asserts that , in considering his allegation of gross
mismanagement, the administrative judge improperly ignored his specific
stateme nts to the Associate Chief of Nursing . PFR File, Tab 1 at 8. He point s to
his precise reports of deficiencies in the implementation of the PACT system ,
including a lack of “adequate clerical support” and that LPNs did not have phone
lines to adequately care for their patients. Id. at 7-8. He disagrees that he
disclosed matters that were debatable because he asserts that failing to maintain
the ability to receive calls from physicians, coworkers, or patients is “grossly
negligent ” and having staff that a re unable to communicate with one another or
their patients would render them “all -but useless” in caring for patients. Id. at 8.
He notes, as he did below, that when he made his disclosure in June 2015,
everyone in the room fell silent. Id. at 9; 0153 IAF, Tab 4 at 11.
¶10 Under the Whistleblower Protection Enhancement of Act 2012 , Pub. L.
No. 112-199, 126 Stat. 1465 (WPEA ), general philosophical or policy
disagreements with agency decisions or actions are not protected disclosures
unless there is a reasona ble belief that the disclosures evidence one of the
categories of wrongdoing listed in section 2302(b)(8)(A) . See Webb v.
Department of the Interior , 122 M.S.P.R. 248 , ¶ 8 (2015) . Gross mismanagement
means a management ac tion or inaction that creates a substantial risk of
significant adverse impact upon the agency’ s ability to accomplish its mission .
communications with OSC; thus, we need not analyze his claim under
section 2302(b)(9)(C).
7
Francis v. Department of the Air Fo rce, 120 M.S.P.R. 138 , ¶ 12 (2013); White v.
Department of the Air Force , 63 M.S.P.R. 90, 95 (1994) .8
¶11 Here, the appellant has offered his disagreement with the implementation of
the PACT system and the alloca tion of resources, such as LPN access to phone
lines and clerical support, but he has not disclosed any action or inaction that
create d a substantial risk of significant adverse impact upon the agency’ s ability
to accomplish its mission . We find that , a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by the appellant could
not reasonably conclude that the disclosure evidenced gross mismanagement.
Accordingly, we find that the appellant has failed to nonfrivo lously allege that he
made a disclosure that he reasonably believed evidenced gross mismanagement by
agency officials. See Francis , 120 M.S.P.R. 138, ¶ 12 (finding that the appellant
failed to nonfrivolously allege that she made a protected disclosure of gross
mismanagement because her disclosure of training deficiencies of interns merely
expressed her disagreement with job-related issues).
¶12 The appellant next cites Chambers v. Department of the Interior , 515 F.3d
136 2, 1368 -69 (Fed. Cir. 2008), for the proposition that, even if the Board fi nds
that he did not make a nonfrivolous allegation that he disclosed gross
mismanagement, the Board still must consider hi s claim of a threat to public
health and safety . PFR File, Tab 1 at 9-10. We agree that we must consider this
claim; however, as discussed below, we find that, under the standard set forth in
Chambers , the appellant has failed to nonfrivolously allege that he made a
protected disclosure .9 In Chambers , the Federal Circuit reiterated that, to
8 The Board decided White prior to the enactment of the WPEA; however, subsequent
changes in the law do not affect the relevant holding in that case.
9 Historically, the Board has been b ound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act (Pub. L. No. 115 -195), appellants may file petitions for
judicial review of Board decisions in whistleblower reprisal cases with any circuit court
8
constitute a protected whistleblowing disclosure, a disclosed danger must be
substantial and specific . 515 F.3d at 1369; see Miller v. Department of Homeland
Security , 111 M.S.P.R. 312, ¶ 6 (2009). The court also set forth the following
factors for de termining whether such a disclosure is pr otected: (1) whether the
disclosed situation “could only result in harm under speculative or improbable
conditions” ; (2) whether the harm will occur in the “immediate or near future” or
is “likely to manifest only in the distant future” ; and (3) the poten tial
consequences of the situation that was disclosed . Chambers , 515 F.3d at 1369 .
¶13 In support of his claim that he disclosed a substantial and specific danger to
public health and safety , the appellant argues that there was a “looming threat to
public safety” and “it strains logic ” to conclude that healthcare profess ionals who
lack basic resources to perform their work do not put patient safety at risk when
those resources are unavailable . PFR File, Tab 1 at 9 -11. He reasserts that
nurses did not have adequate clerical support and LPNs did not have adequate
phone lines to assist with patient -care tasks. Id. at 9. Additionally, he states that
it is not unreasonable to foresee a situation whe n a patient would be unable to
reach clinic staff due to lack of telephone access when the patient would be in
need of medical care, medical advice, or even the basic instruction to call 911.
Id. at 10.
¶14 We find that the appellant has failed to nonfrivolously allege that he made a
protected disclosure of a substantial and specific danger to public health and
safety . He has described the possibility that the agency’s policies, as
implemented at the time of his disclosure, could eventually have a negative effect
on the care of a patient. Id. We do not quest ion that issues with the
implementation of policies and procedures for patient care could evidence a
of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). Therefore, we
must consider these issues with the view that the appellan t may seek review of this
decision before any appropriate court of appeal.
9
substantial and specific danger to public health and safety as such issues can lead
to severe consequences . Thus, in Peterson v. Department of Veterans Af fairs ,
116 M.S.P.R. 113, ¶ 12 (2011), we found that the appellant no nfrivolously
alleged that she disclosed a substantial and sp ecific danger to public health and
safety when, among other things, she disclosed to the Chief Nurse Executive that
ongoing improper patient care and procedures jeopardized and adversely affected
the health and safety of patients and , in some extreme cases , led to strokes, heart
attacks, and death of patients . Here, h owever, the appellant contend s that lack of
resources, including clerical support and phone lines, could lead to patient danger
at some point in the future. PFR File, Tab 1 at 9-11. We find that his assertion is
speculative and that there is no indication of specific consequences in the
immediate or near future. See Chambers , 515 F.3d at 1369 ; Miller , 111 M.S.P.R.
312, ¶ 6. Accordingly, we find the appellant failed to nonfrivolously allege that
he made a protected disclosure. See Schoenig v. Department of Justice ,
120 M.S. P.R. 318, ¶ 10 (2013) (finding that the ap pellant failed to nonfrivolously
allege that she made a protected disclosure when she stated that fire sprinklers in
her building were similar to sprinklers that had been subject to recall because
such a disclosure was only speculative ).
¶15 Having found that the appellant failed to nonfrivolously allege that he made
a protected disclosure, we need not address whether his disclosu re was a
contributing factor to his termination. See El v. Department of Commerce ,
123 M.S.P.R. 76 , ¶ 13 (2015), aff’d , 663 F. App’x 921 (Fed. Cir. 2016).
Accordingly, we find that the appellant has not established jurisdiction over his
IRA appeal.10
10 The administrative judge also found that a determination as to whether the agency
proved by clear and convincing evidence that it would have terminated the appellant’s
employment absent his disclosure would be premature. 0153 ID at 11. Because the
appel lant has not established jurisdiction over his appeal, we agree. See MaGowan v.
Environmental Protection Agency , 119 M.S. P.R. 9 , ¶ 11 (2012) (finding that the
10
NOTICE OF APPEAL RIG HTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.1 13. You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most ap propriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possibl e choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issu ance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
administrative judge should not have considered whether the agency established by
clear and convincing evidence that it would have taken the same personnel action in the
absence of the appellant’s alleged whistleblowin g without first finding jurisdiction).
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 mos t appropriate in any matter.
11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
follo wing address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. C ourt of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the se rvices provided by any attorney nor warrants that
any attorney will accept representation in a given 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 affect ed by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
12
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view 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
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
13
other protected activities listed in 5 U.S.C. § 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
compete nt 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 judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
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 b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
for Merit Systems Protection Board appellants before the 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 th e courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | REED_JAMES_D_CH_1221_17_0153_W_1_FINAL_ORDER_2062550.pdf | 2023-08-24 | null | CH-1221 | NP |
2,766 | https://www.mspb.gov/decisions/nonprecedential/SCOTTEN_DIANNE_DE_1221_16_0087_W_1_FINAL_ORDER_2062014.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DIANNE SCOTTEN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -16-0087 -W-1
DATE: August 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jill Gerdrum , Esquire, Missoula, Montana, for the appellant.
Melissa Lynn Binte Lolotai , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 This case is before the Board on the agency’s petition for review and the
appellant’s cross petition for review of the initial decision, which ordered
corrective action in connection with the appellant’s individual right of action
(IRA) appeal. For the reasons discussed below, we GRANT the agency’s petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
for review and DENY the appella nt’s cross petition for review. We MODIFY the
initial decision to find that 5 U.S.C. § 2302 (f)(2) and its heightened standard does
not apply, to expand the analysis of the agency’s clear and convincing burden
regarding its decision to change the effective date of the appellant’s resignation ,
and to clarify that the appellant’s resignation is not a personnel action that may
serve as the basis for a whistleblower reprisal claim . Because the age ncy
established by clear and convincing evidence that it would have effected the
appellant’s resignation before her requested date even absent her protected
disclosure, the appellant is not entitled to relief in connection with that personnel
action . Howe ver, because the appellant remains entitled to corrective action
concerning her hostile work environment claim, we GRANT her relief on that
basis. We otherwise AFFIRM the initial decision.
BACKGROUND
¶2 Effective March 9, 2014, the agency appointed the appel lant to the
excepted -service position of Associate Chief of the In -Patient Care Service for its
Montana Healthcare System, subject to the completion of a “2 Year Probationary
Period .”2 Initial Appeal File (IAF), Tab 12 at 101, Tab 22 at 9. She was one of
two Associate Chiefs reporting to the Associate Director, and six supervisory
nurse managers were to report directly to the appellant, along with other
nonsupervisory nurses. Hearing Compact Disc, May 23, 2016 (HCD I)
(testimony of the appellant). Howev er, the Associate Director determined that,
initially, the nurse managers would report jointly to the appellant and her, and
that the appellant would gradually assume primary supervision over a period of
time. IAF, Tab 22 at 10. Early on, some of the nur se managers complained to the
2 All matters in this appeal, including issuance of the initial decision, took place prior to
enactment of the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 . Pub. L. No. 115 -41, 131 Stat. 862. Thus, that statute is not
relevant to this appeal.
3
Associate Director about the way the appellant dealt with them, including how
she conducted meetings. Hearing Compact Disc, May 24, 2016 (HCD II)
(testimony of the Associate Director).
¶3 On April 25, 2014, a nurse manager asked the appellant to attend a meeting
of operating room staff regarding an incident related to surgical towel counts that
had occurred in connection with a procedure a few days earlier. IAF, Tab 22
at 10. Although the Associate Director and the nurse manage r viewed the
incident as one of miscommunication among the operating room staff that could
have been handled internally, the appellant perceived it as a matter of patient
safety and reported it as such to the Patient Safety Program of the Quality
Managemen t Department. HCD I (testimony of the appellant); HCD II (testimony
of the Associate Director). Both the Associate Director and the nurse manager
were upset with how the appellant handled the matter, believing that she acted
without full knowledge of the underlying facts and circumstances and the
operating room culture. HCD II (testimony o f the Associate Director); IAF,
Tab 23 at 32 -33.
¶4 After the appellant reported the towel count incident, she perceived that the
Associate Director’s attitude toward her changed in that she became hostile and
acted to undermine the appellant’s authority by directing her not to be involved
with operating room matters and not to attend daily operating room meetings.
HCD I (testimony of the appellant). Additionally, the nur se managers, who
reported to the appellant, met with the appellant to express their dissatisfaction
with how she handled the towel count incident and her management style, and to
indicate that, in the future, they would not directly report to her but inste ad would
report directly to the Associate Director. Id.; IAF, Tab 23 at 110 -11. In the
appellant’s view, over the following months, the Associate Director continued to
undermine her during meetings, a behavior that did not go unnoticed by other
attendees . HCD I (testimony of the appellant); HCD I (testimony of the former
Respiratory Manager); Hearing Compact Disc, June 9, 2016, HCD III (testimony
4
of the Quality Manager). In addition, the Associate Director decided to delay the
appellant’s transition to supervising the operatin g room, in contrast to what she
had earlier indicated. HCD II (testimony of the Associate Director). And, on one
occasion, when the appellant was acting for the Associate Director who was out
of town, and a serious incident occurr ed in the operating room, the Associate
Director tasked a nurse manager, not the appellant, with preparing an action plan.
Id. Subsequently, based on a realignment of duties, the appellant was removed
from supervision of the four nurse managers. Id.
¶5 At around the same time, the Associate Director was becoming increasingly
dissatisfied with the appellant’s performance and, after a discussion with the head
of Human Resources, she proposed that the appellant accept a reassignment to a
nurse manager position in non -institutional care to which, in the Associate
Director’s view, the appellant might be better suited, but the appellant declined
the reassignment, which would have been a demotion. Id.; HCD I (testimony of
the appellant). The Associate Director then determined to extend the appellant’s
evaluation period for an additional 90 days, requiring twice -weekly meetings to
address the status of her assigned tasks. HCD II (testimony of the Asso ciate
Director); IAF, Tab 22 at 56 -60. The Associate Director believed that the
extended evaluation period worked well, but the appellant disagreed. HCD II
(testimony of the Associate Director); HCD I (testimony of the appellant).
¶6 The appellant challenge d the proposed demotion, filing an informal
grievance against the Associate Director and requesting mediation, claiming
retaliation and a hostile work environment based on her having filed the patient
safety report. IAF, Tab 22 at 11. Although the appell ant subsequently withdrew
her request for mediation, she filed a formal grievance alleging retaliation for
making a protected disclosure. IAF, Tab 12 at 52. The Acting Director of the
facility, to whom the grievance was submitted, advised the appellant t hat, due to
the complexity of the issues, he was referring the grievance for review and
investigation by an examiner. IAF, Tab 23 at 117. When told that she would
5
have to continue working under the Associate Director’s supervision during this
time, the a ppellant stated that she could not do so as her anxiety level was high,
and that, if there were no other options, she would have to resign. HCD I
(testimony of the appellant).
¶7 On December 5, 2014, the appellant submitted her resignation, effective
Decembe r 27, 2014, based on the suggestion of the head of Human Resources that
she take leave until her last day, in accordance with his reading of a provision of
the agency Handbook. IAF, Tab 13 at 8, Tab 23 at 123; HCD I (testimony of the
appellant). However, the agency determined that the head of Human Resources
lacked the authority to grant the appellant leave and made the appellant’s
resignation effective December 5, 2014. HCD III (testimony of the Human
Resources Specialist); IAF, Tab 12 at 45. At that t ime, the appellant had a
pending offer of employment with the state of Montana, which she accepted.
HCD I (testimony of the appellant).
¶8 On January 21, 2015, the appellant filed a complaint with the Office of
Special Counsel (OSC) in which she alleged that , in retaliation for disclosing the
towel count incident to the Patient Safety Program, she experienced a significant
change in duties, was threatened with demotion, and was subjected to a hostile
work environment such that she felt compelled to resign. I AF, Tab 1 at 31 -44.
When OSC closed its inquiry into her allegations, id. at 47, the appellant filed an
IRA appeal with the Board, id. at 1 -12, and requested a hearing, id. at 2. Upon
review of the parties’ initial submissions, IAF, Tabs 6 -7, 10, 13, 16, the
administrative judge determined that the appellant had established Board
jurisdiction over her IRA appeal in that she exhausted her remedies before OSC,
that, as to the towel count incident, she nonfrivolously alleged what she
reasonably believed was a substantial and specific danger to public health and
safety, and that she nonfrivolously alleged that her protected disclosure was a
contributing factor in the imposition of two covered personnel actions, a hostile
6
work environment and an involuntary res ignation. IAF, Tab 17. Accordingly, the
administrative judge convened the requested hearing. IAF, Tabs 37 -38, 44.
¶9 Thereafter, the administrative judge issued an initial decision in which he
found that the appellant proved that she made a protected discl osure, even though
it was made in the normal course of her duties, because she satisfied her burden
under 5 U.S.C. § 2302 (f)(2) by proving that the agency subjected her to a hostile
work environmen t in reprisal for her disclosure. IAF, Tab 45, Initial Decision
(ID) at 18 & n.7, 20 -23. The administrative judge also found that the hostile
work environment the appellant experienced constituted a significant change in
duties, responsibilities, or work ing conditions, a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(xii), and that she was subjected to that hostile work environment
because of her protected disclosure.3 ID at 20 -23. The administ rative judge then
found that the agency did not establish by clear and convincing evidence that it
would have subjected the appellant to certain of the changed working conditions
absent her protected disclosure. ID at 23 -28. The administrative judge foun d that
the appellant did not establish that her resignation was involuntary in that the
hostile work environment to which she was subjected did not amount to a
constructive removal. ID at 28 -30. Nevertheless, the administrative judge found
3 The administrative judge relied on the Board’s decision in Savage v. Department of
the Army , 122 M.S.P.R. 612 , ¶ 23 (2015), overruled on other grounds by Pridgen v.
Office of Management and Budget , 2022 MSPB 31 , ¶ 25, in finding that a hostile work
environment may constitute a covered personnel action under the whistleblower
protection statutes. ID at 20. The Board has clarified that allegations of a hostil e work
environment may establish a personnel action only if they meet the statutory criteria,
i.e., constitute a significant change in duties, responsibilities, or working conditions as
set forth in 5 U.S.C. § 2302 (a)(2)(A). Skarada v. Department of Veterans Affairs ,
2022 MSPB 17 , ¶ 16. The administrative judge foun d that the appellant established that
she was not allowed to manage her staff and was removed from supervision, barred
from operating room department meetings, pulled from oversight responsibilities,
undermined, yelled at in front of her subordinates, and subjected to overt hostility by
the Associate Director. ID at 20 -23. We agree with the administrative judge that the
cumulative effect of these actions constituted a significant change in the appellant’s
working conditions. See Skarada , 2022 MSPB 17 , ¶ 18.
7
that the appel lant’s otherwise voluntary resignation was rendered involuntary
when the agency unilaterally defined its terms, i.e., its effective date, without her
consent, even though the agency did not do so in retaliation for her protected
whistleblowing, because her resignation was inextricably tied to the hostile work
environment. ID at 31. Thus, the administrative judge granted the appellant’s
request for corrective action, ID at 2, 32 -34, recognizing, however, that, because
she no longer worked for the agency an d had relocated, it was unclear whether the
appellant wished to return to her former position with the agency, ID at 33.
Accordingly, the administrative judge directed the appellant to make known to the
agency her desire in that regard.4 ID at 33 .
¶10 The ag ency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has responded to the petition for review and has filed a
cross petition for review. PFR File, Tab 3. The agency has replied to that
submission. PFR File, Tab 5.
ANALYSIS
¶11 For organizational purposes, we find it appropriate to start our analysis by
addressing the arguments —raised by the appellant in her cross petition for
review —that the administrative judge erred by finding that the appellant’s
disclosure was made in the normal course of her duties and, therefore, that the
higher evidentiary standard set forth in 5 U.S.C. § 2302 (f)(2) was applicable.
PFR File, Tab 3 at 30; ID at 20. We then address whether the appellant
established that her protected disclosure was a contributing factor in the hostile
work environment and whether the agency proved by clear and convincing
evidence that it would have subjected the appellant to the same hostile work
environment absent her protected disclosure. Turning to the agency’s petition for
4 The administrative judge determined not to award interim relief in this case. ID at 34.
Neither party has challeng ed that determination on review.
8
review, we address the agency’s argument that the administrative judge erred in
finding that the appellant’s disclosure was a contributing factor in the appellant’s
involuntary resignation. PFR File, Tab 1 at 7 -11; ID at 28 -31. Lastly, we turn
back to the appellant’ s cross petition for review to address her argument that the
administrative judge erred in finding that, apart f rom the agency’s change to its
effective date, her resignation was voluntary and did not amount to a constructive
removal . PFR File, Tab 3 at 23 -29; ID at 2 9-30.
The appellant was not required to meet the higher burden of proof under 5 U.S.C.
§ 2302 (f)(2) to show that her disclosure was protected , and she established that
she made a protected disclosure under 5 U.S.C. § 2302 (b)(8) .
¶12 Under th e Whistleblower Protection Enhancement Act of 2012 (WPEA),
Pub L. No. 112-199, 126 Stat. 1465, the Board has jurisdiction over an IRA
appeal if the appellant has exhausted her administrative remedies before OSC and
makes nonfrivolous allegations that (1) s 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). Bishop v. Department of
Agriculture , 2022 MSPB 28 , ¶ 13; Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Yunus v.
Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001) . Once an
appellant establishes jurisdiction over her IRA appeal, she is entitled to a hearing
on the merits of her claim, which she must prove by preponderant evidence.
Salerno , 123 M.S.P.R. 230 , ¶ 5. If the appellant proves that her protected
disclosure o r activity was a contributing factor in a personnel action taken against
her, the agency is given an opportunity to prove, by clear and convincing
evidence, that it would have taken the same personnel action in the absence of the
protected disclosure or ac tivity. Soto v. Department of Veterans Affairs ,
2022 MSPB 6 , ¶ 6; Salerno , 123 M.S.P.R. 230 , ¶ 5; see 5 U.S.C. § 1221 (e)(1) -(2).
9
¶13 Prior to the enactme nt of the WPEA in 2012, disclosures made in the
normal course of an employee’s duties were not protected. See, e.g. , Huffman v.
Office of Personnel Management , 263 F.3d 1341 , 1353 -54 (Fed. Cir. 2001),
superseded by statute , WPEA, Pub. L. No. 112 -199, § 101(b)(2)(C), 126 Stat.
1465, 1465 -66. However, under a provision of the WPEA codified as 5 U.S.C.
§ 2302 (f)(2), suc h disclosures are protected if the appellant shows that the agency
“took, failed to take, or threatened to take or fail to take a personnel action . . . in
reprisal for the disclosure.” Benton -Flores v. Department of Defense ,
121 M.S.P.R. 428 , ¶ 15 (2014). This provision impose d an “extra proof
requirement” for these types of disclosures s uch that an appellant to whom
5 U.S.C. § 2302 (f)(2) applies must prove by preponderant evidence that the
agency took a personnel action because of th e disclosure and did so with an
improper, retaliatory motive.5 Salazar v. Department of Veterans Affairs ,
2022 MSPB 42, ¶ 11.
¶14 In Day v. Department of Homeland Security , 119 M.S.P.R. 589 , ¶ 18
(2013) , the Board observed that the Whistleblower Protection Act (WPA)
definition of disclosur e contained in 5 U.S.C. § 2302 (b)(8) was ambiguous as to
whether disclosures made in the normal course of an employee’s duties were
protected. It found that the new provision at 5 U.S.C. § 2302 (f)(2) enacted as
part of the WPEA clarified this ambiguity to provide that these types of
disclosures were covered under the WPA. Day, 119 M.S.P.R. 589 , ¶¶ 18-26; see
Salazar , 2022 MSPB 42 , ¶ 12. The version of 5 U.S.C. § 2302 (f)(2) enacted as
part of the WPEA was the version in place when the event s in this case occurred
5 As in this appeal, the determination of whether a disclosure made in the normal course
of duties is protected will often require factual findings best made after a more
complete development of the record. Accordingly, th e determination should be made as
part of an appellant’s prima facie case and not at the jurisdictional stage of an IRA
appeal.
10
and when the administrative judge issued his September 2016 initial decision.
See Salazar , 2022 MSPB 42 , ¶ 12 .
¶15 The National Defense Authorization Act for Fiscal Year 2018 (2018
NDAA) , signed into law on December 12, 2017, amended 5 U.S.C. § 2302 (f)(2)
to provide that disclosures “made during th e nor mal course of duties of an
employee, the principal job function of whom is to regularly investigate and
disclose wrongdoing,” are protected if the employee demonstrates that the agency
“took, failed to take, or threatened to take or fail to take a personne l action” with
respect to that employee in reprisal for the disclosure. Pub. L. No. 115-91,
§ 1097(c) (1)(B)(ii) , 131 Stat. 1283, 1618. As we held in Salazar , 2022 MSPB 42 ,
¶¶ 13-14, 22, the effect of this amendment is that 5 U.S. C. § 2302 (f)(2) now
expressly applies only to an employe e whose principal job function is to regularly
investigate and disclose wrongdoing, and that disclosures made in the normal
course of duties of an employee whose principal job function is not to regul arly
investigate and disclose wrongdoing fall under the generally applicable 5 U.S.C.
§ 2302 (b)(8) , rather than 5 U.S.C. § 2302 (f)(2). Fu rther, as we also held in
Salazar , 2022 MSPB 42 , ¶¶ 15-21, the 2018 NDAA ’s amendment to 5 U.S.C.
§ 2302 (f)(2), which clarified the prior version of that statute enacted in the
WPEA, applies retroactively to appeals pending at the time the statute was
enacted.
¶16 In requiring the appellant to meet the additional evidentiary bur den of
showing that the personnel actions taken were in retaliation for her April 25, 2014
report to the Patient Safety Program regarding the towel count incident, the
administrative judge found that the disclosure, otherwise protected under
section 2302(b )(8) as a substantial and specific danger to public health, was made
in the normal course of the appellant’s duties as an Associate Chief of Nursing
Services. ID at 20. The administrative judge found that it was a job requirement
that the appellant repor t such incidents that could impact patient safety. Id. The
appellant challenges this finding on review based on testimony by the Associate
11
Director that the appellant should have addressed the matter internally instead of
going to the Patient Safety Program. PFR File, Tab 3 at 30; see HCD II
(testimony of the Associate Director); ID at 20.
¶17 The appellant, a high -ranking supervisory nurse, v iewed her disclosure of
the incident relating to the towel count as a “near miss” situation in which a
patient could have been put in jeopardy by the actions of careless staff. HT I
(testimony of the appellant); IAF, Tab 23 at 95. Regardless of whether t here were
other means to address the issue that her coworkers and supervisor would have
preferred that she used, her act of reporting to the Patient Safety Program a matter
that, in her professional view, could have jeopardized patient safety must
reasonab ly be considered as within the normal course of her duties. The
appellant’s duties included providing guidance and direction oversight for the
development, implementation, and maintenance of established standards of
nursing practice. IAF, Tab 12 at 35. We therefore agree with the administrative
judge’s finding that the appellant made her disclosure in the normal course of her
duties.
¶18 However, due to the 2018 NDAA’s clarifying amendment to 5 U.S.C.
§ 2302 (f)(2) and our decision in Salazar , of which the administrative judge did
not have the benefit, we find that the appellant was not required to meet the
higher burden of proof that the personnel action was taken in reprisal for her
disclosure o f the towel count incident to prove that her disclosure was protected
under 5 U.S.C. § 2302 (b)(8) . As Salazar , 2022 MSPB 42 , ¶¶ 11, 13-14, made
clear, the “extra proof” requirement in 5 U.S.C. § 2302 (f)(2) only applies to an
employee whose principal job function is to regularly investigate and disclose
wrongdoing. The appellant’s position description establishes that her principal
job function was to manage patient care and nursing services at an agency health
care system —as it included duties such as supervising p atient care programs and
managing nursing personnel and resources —and was not to regularly investigate
and disclose wrongdoing . IAF, Tab 12 at 35-42. Therefore, the appellant’s
12
disclosures fall under the generally applicable 5 U.S.C. § 2302 (b)(8), rather than
5 U.S.C. § 2302 (f)(2). Because we agree with the administrative judge that the
appellant’s April 25, 201 4 report to the Patient Saf ety and Risk Management
Department at her hospital of unaccounted for surgical towels which might have
been left inside a patient was a disclosure which the appellant reasonably
believed evidenced a substantial and specific danger to public health or safet y, ID
at 20, her disclosure was protected under 5 U.S.C. § 2302 (b)(8)(A)(ii) .
The appellant established that her protected disclosure was a contributing factor
in the hostile work environment perso nnel action.
¶19 Having proved that her disclosure was protected under 5 U.S.C.
§ 2302 (b)(8), the appellant was required to prove that her protected disclosure
was a contributing factor in the agency subjecting her to a hostile work
environment. Soto , 2022 MSPB 6 , ¶ 6; Scoggins v. Department of the Army ,
123 M.S.P.R. 592 , ¶ 21 (2016). The most common way for an appellant to prove
that a protected disclosure was a contributing factor in the agency’s taking of a
personnel action is the knowledge/timing test. Smith v. Department of the Army ,
2022 MSPB 4, ¶ 19; Scoggins , 123 M.S.P.R. 592 , ¶ 21. That test requires the
appellant to prove that the official taking the personnel action knew of the
whistleblowing 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. Soto , 2022 MSPB 6 , ¶ 6; Scoggins ,
123 M.S.P.R. 592 , ¶ 21. The Board has held that a personnel action taken within
1 to 2 years of the protected disclosures sa tisfies the timing prong of the
knowledge/timing test. Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶ 63. Once t he appellant has satisfied the knowledge/timing test,
she has demonstrated that a protected disclosure was a contributing factor in a
personnel action, even if a complete analysis of all of the evidence would not
support such a finding. Gonzalez v. Depart ment of Transportation , 109 M.S.P.R.
250, ¶ 20 (2008) .
13
¶20 Here, without the benefit of the Board’s decisions in Skarada and Salazar ,
the administrative judge found that the appellant proved by preponderant
evidence that she was subjected to a hostile work environment in reprisal for her
protected disclosure. ID at 20 -23. That finding was based in part on the
appellant having satisfied the knowledge/timing test; that is, she established that
the Associate Director learned of her disclosure regarding the towel count
incident when the appellant told her that she had reported it to the Patient Safety
Program and that, almost immediately th ereafter, the Associate Director’s attitude
toward her changed and became hostile. ID at 21 -22. The administrative judge
also found that the Associate Director’s open hostility toward the appellant was
observed by others and that, a week after the disclo sure, the Associate Director
undermined the appellant by taking the side of the nurse managers in their dispute
with the appellant regarding her management style. ID at 20 -22. In addition, the
administrative judge found that the timing of the appellant’s sudden exclusion
from any supervisory responsibilities in the operating room after making her
disclosure about the operating room incident was strong evidence that she was
removed from operating room supervision as a consequence of making that
disclosure. ID at 22. In so finding, the administrative judge found incredible the
Associate Director’s denial that that was the reason the appellant was removed
from supervisory duties relating to the operating room because the Associate
Director had provided inco nsistent and inherently implausible explanations for
her actions. Id.; see Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458
(1987).6
6 In Hillen, the Board held that, 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 such factors as: (1) the witness’s opportunity and
capacity to observe the event or act in question; (2) the witness’s character; (3) any
prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
14
¶21 The agency does not, in its petition for review, point to any countervailing
evidence on this issue, and does not challenge the administrative judge’s finding
that the appellant proved by preponderant evidence that her protected disclosure
was a c ontributing factor in the creation of a hostile work environment . PFR File,
Tab 1 at 7 -11. After careful review of the record, we discern no reason to disturb
the administrative judge’s findings in this regard. Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 106 (1997) (finding that the Board will not disturb an
administrative judge’s findings when she considered the evidence as a w hole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility ); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same) .
The agency failed to prove by clear and convincing evidence that it would have
subjected the appellant to the same hostile work environment absent her protected
disclosure.
¶22 Because the appellant established a prima facie case that the Associate
Director retaliated against her for making a protected disclosure regarding the
towel count incident by subjecting her to a number of actions that collectively
amounted to a hostile work environment, the burden now sh ifts to the agency to
show by clear and convincing evidence that it would have subjected the appellant
to that same environment absent any whistleblowing. Soto , 2022 MSPB 6 , ¶ 6;
Salerno , 123 M.S.P.R. 230 , ¶ 5. In determining whether an agency has shown by
clear and convincing evidence that it would have taken the same personnel action
in the absence of whistleblowing, the Board will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency officials who
were involved in the decision; and (3) any evidence that the agency takes similar
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. 35 M.S.P.R. at 458 .
15
actions against employees who are not whistleblowers but who are otherwise
simil arly situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323
(Fed. Cir. 1999); see Marcato v. Agency for International Development, 11 F.4th
781, 783 -84, 786 -90 (D.C. Cir. 2021) (adopting and applying the Carr factors to a
clear and convincing analysis); Duggan v. Department of Defense , 883 F.3d 842 ,
846-47 (9th Cir. 2018) ( same) ; Soto , 2022 MSPB 6 , ¶ 11. The Board considers
all the evidence, including evidence that detracts from the conclusion that the
agency met its burden. Soto, 2022 MSPB 6 , ¶ 11; see Whitmore v. Department of
Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012).
¶23 In finding that the agency failed to meet its burden, the administrative judge
considered its claim that the diffi culties the appellant had with her subordinates
were due to a lack of trust that she created by how she talked with them and how
she conducted meetings. ID at 24. The administrative judge found, however, that
such concerns did not plausibly justify the d emeaning manner in which the
Associate Director treated the appellant and the removal of her supervisory
responsibilities. Id. Therefore, as to the first Carr factor, the administrative
judge concluded that the stated reasons for the ag ency’s actions wer e weak and he
was not persuaded that such a disproportionate response would have occurred in
the absence of a retaliatory motive. Id.
¶24 Regarding the second Carr factor, the administrative judge found that there
was persuasive evidence of a motive to retali ate on the part of officials involved
in certain of the actions taken by the agency that created a hostile work
environment for the appellant.7 ID at 24 -27. Besides the Associate Director’s
7 The administrative judge did, however, credit the Associate Director’s testimony that,
by late summer and fall of 2014, she did not believe that the appellant was meeting
expectations in certain nonsupervisory performance areas and so took actions to address
these perceived performance deficiencies, including proposing that the appellant accept
a voluntary demotion, delaying her performance appraisal when she declined the
demotion, and requesting that the meetings the appellant held with her staff be
documented. The administ rative judge therefore credited as specific and
16
treatment of the appellant following her disclosure, the adminis trative judge
found, based on the testimony of a number of facility employees, that the
Associate Director had a tendency to retaliate against employees who reported
safety issues outside of the department and that she engendered a degree of fear
among the m. Id. Even if the Associate Director was not directly implicated by
the appellant’s disclosure, the criticism reflected on her —in her capacity as the
Associate Director overseeing the nursing operations —can be sufficient to
establish a retaliatory motiv e. Whitmore , 680 F.3d at 1370 -71 (finding that the
appellant’s criticisms “cast [the agency], and, by implication all of the
responsible [agency] officials, in a highly critical light by calling into question
the propriety and honesty of their official co nduct”); Wilson v. Department of
Veterans Affairs , 2022 MSPB 7 , ¶ 65 (stating that an appellant’s criticism that
reflects on an agency official in her capacity as a manager is sufficient to
establish a substantial retaliatory motive) .
¶25 Regarding the third Carr factor, the administrative judge found that there
was credible evidence that the Associate Director took similar actions ag ainst
employees who were not whistleblowers. ID at 27 -28. According to the
administrative judge, the record showed that the Associate Director generally was
abrasive toward those who did not, in her view, meet her high standards, and that
she could be vi ndictive. Id. Nevertheless, the adm inistrative judge found that he
lacked a firm conviction that the hostile treatment of the appellant was caused by
the Associate Director’s high standards, given the suspicious timing and direct
straightforward the Associate Director’s testimony that she took these actions to
address the appellant’s deficiencies, not to retaliate against her for her protected
disclosure. ID at 24 -25. In this regard , the administrative judge relied on Board case
law that finding a witness incredible on one matter does not preclude finding her
credible on another matter. Craft v. Department of Veterans Affairs , 78 M.S.P.R. 374 ,
380 (1988); ID at 25. Accordingly, the administrative judge determined that the
harassing conditions for which the appellant was due relief did not include the action s
taken by the Associate Director to address what she perceived to be legitimate
performance concerns. ID at 25.
17
evidence that she and ot hers, including nurse managers, were upset with the
appellant for making the disclosure regarding the towel count incident. ID at 28.
¶26 After considering the totality of the evidence, the administrative judge
found that the agency did not meet its burden of proving by the very high
standard of clear and convincing evidence that it would have subjected the
appellant to a hostile work environment absent her protected disclosure. Id. The
agency does not challenge this finding on review, PFR File, Tab 1, and w e
discern no basis upon which to disturb it. We therefore agree with the
administrative judge that, as to this personnel action, the appellant established her
claim of retaliation for whistleblowing.
The appellant established that her disclosure was a con tributing fac tor in the
agency changing the effective date of her resignation .
¶27 As noted, the administrative judge found that the appellant established that
her resignation was involuntary. ID at 28 -30. He found that she did not show
that the hostile work environment to which she was subjected would have
compelled a reasonable person to leave the workplace, even though the situation
was difficult and caused her a high level of discomfort and anxiety and concern
for her professional reputation. Id. Howeve r, he found that the resignation was
rendered involuntary because the agency unilaterally made it effective prior to the
date the appellant had selected to resign. ID at 31.
¶28 The administrative judge then specifically found that the evidence did not
show t hat the agency processed the appellant’s resignation on a date she did not
agree to in reprisal for her protected disclosure. Id. He found that, while the
Human Resources Specialist discussed the effective date with the Associate
Director, there was no e vidence that the Associate Director took issue with the
appellant’s use of leave in advance of her resignation because of the appellant’s
protected disclosure. Id. Rather, the administrative judge found, based on the
Associate Director’s testimony, that she took issue with the head of Human
Resources possibly usurping her authority to grant or deny leave for her staff and
18
that she would have wanted the appellant to return to work so that there could be
an appropriate transition of responsibilities. Id. The administrative judge
similarly found no retaliatory intent on the Human Resources Specialist’s part in
unilaterally changing the date of the appellant’s resignation. Id.
¶29 The agency challenges on review the administrative judge’s ultimate
finding regar ding the appellant’s alleged involuntary resignation. PFR File,
Tab 1 at 7 -11. Specifically, the agency argues that, having found a lack of
retaliatory motive for changing the appellant’s resignation date, the
administrative judge was required to further find that the appellant failed to
establish that her disclosure was a contributing factor in her involuntary
resignation, and that the administrative judge abused his discretion in finding that
the appellant met her burden by showing only that her resigna tion was
“inextricably tied” to the hostile work environment she suffered. Id. at 10-11; ID
at 31.
¶30 We disagree with the agency’s claim that the administrative judge was
required to find that the appellant failed to establish that her disclosure was a
contributing factor in the agency’s change to her resignation date . The appellant
claims that the Associate Director and the Human Resources Specialist were the
agency officials responsible for unilaterally effecting her resignation in advance
of the date she had selected —the action the administrative judge found rendered
her otherwise voluntary resignation involuntary. PFR File, Tab 3 at 20 ; ID at 31 .
Even though there is no evidence that the Human Resources Specialist was aware
of the appellant’s disclosure, the Associate Director learned of the appellant’s
disclosure very shortly after the appellant made it on April 25, 2014, ID at 21 -22,
and the effe ctive date of the appellant’s resignation was changed from
December 27 to December 5, 2014, within approximately 7 months of the
protected disclosure , ID at 17. Because the Board has held that personnel actions
taken within 1 to 2 years of a protected dis closure or activity satisfy the timing
prong of the knowledge/timing test, Pridgen , 2022 MSPB 31 , ¶ 63, the appellant
19
satisfied the knowledge/timing test based on the Associate Director’s knowledge
and the proximity in time between the protected disclosure and the personnel
action. Therefore, the appellant established contributing factor regarding this
claim.
The agency proved by clear and convincing evidence that it would have changed
the effective date of the appellant ’s resignation absent her protected disclosure.
¶31 After a careful review of the record, we find that the agency carried its
burden of showing by c lear and convincing evidence that it would have taken the
same action in the absence of the appellant’s disclosure. Regarding the first of
the Carr factors set forth above, there is strong evidence supporting the agency’s
reason for changing the effective date of the appellant’s resignation, specifically,
VA Handbook 5011/18, part III, chapter 3, which provides that “[t]here is no
authority to grant annual leave immediately prior to separation when it is known
in advance that the employee is to be separate d, except ‘where exigencies of the
service require such action ( 34 Comp. Gen. 61).’” IAF, Tab 12 at 108. The
Comptroller General decision cited in the agency’s handbook supports the
proposition that annual leave should generally not be granted to an empl oyee
immediately prior to the employee’s separation from the agency. Acting
Comptroller General Weitzel to Louis F. Thompson, Department of State ,
34 Comp. Gen 61 (1954). Thus, because the agency was acting consistent ly with
establish ed agency policy and a Comptroller General decision, we find that the
first Carr factor strongly supports the agency.
¶32 Regarding the second Carr factor, the appellant’s disclosure clearly was not
directed at the Human Resources Specialist, and although the Associate Director
was not directly implicated by the disclosure, it arguably reflected on her in her
capacity as Associate Director, which could be sufficient to establish a retaliatory
motive. Whitmore , 680 F.3d at 1370 -71; Wilson , 2022 MSPB 7 , ¶ 65 . However,
any such inference is outweighed by the administrative judge’s specific findings,
made after hearing the testimony, that there was no retaliatory intent on the part
20
of either the Associate Director or the Human Resources Specialist in changing
the effective date of the appellant’s resignation. ID at 3 1. The Board must defer
to an administrative judge’s cred ibility 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. Departmen t of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002). The appellant has not presented such
sufficiently sound reasons here and thus we defer to the administrative judge ’s
credibility finding. Thus, we find that the second Carr factor also weighs in the
agency’s favor.
¶33 Finally, regarding the third Carr factor, the agency presented no evidence
that it took similar personnel action s against similarly situated employees who
had no t made disclosures . While the agency does not have an affirmative burden
to produce evidence concerning each and every Carr factor, “the absence of any
evidence relating to Carr factor three can effectively remove that factor from the
analysis,” but the failure to produce such evidence if it exists “may be at the
agency ’s peril,” and “may well cause the agency to fail to prove its case overall.”
Whitmore , 680 F.3d at 1374 -75; Soto, 2022 MSPB 6 , ¶ 18. Moreover, because it
is the agency ’s burden of proof, when the agency fails to introduce relevant
comparator e vidence, 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 Pro tection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018) ;
Soto , 2022 MSPB 6 , ¶ 18. Here, based on the lack of evidence regarding how
other employees were treated and the lack of evidence that no comparators exist ,
we find that the third Carr factor cuts slightly in favor of the appellant.
¶34 Considering the total ity of the evidence, we find that the agency proved by
clear and convincing evidence that it would have taken the same action abse nt the
appellant’s disclosure. In particular, we note the strength of the agency’s reasons
for changing the effective date of the appellant’s resignation. Even in the absence
21
of the administrative judge’s credibility finding of a lack of retaliatory intent, th e
second Carr factor, which would then slightly favor the appellant, and the third
Carr factor would be insufficient to outweigh the first factor. Thus, in sum, the
appellant is not entitled to corrective action under the whistleblower protection
statutes regarding the agency changing the effective date of her resignation.
Other than the period during which the agency unilaterally changed the effective
date of the appellant’s resignation, the resignation was voluntary and thus did not
constitute a personne l action under the whistleblower protection statutes.
¶35 Finally, we address the appellant’s argument in her cross petition for review
that the administrative judge erred in finding that, apart from the 22-day period
that the agency unilaterally changed the e ffective date of her resignation, the
appellant’s resignation was voluntary. PFR File, Tab 3 at 23 -29; ID at 28 -30. As
discussed below, we are not persuaded by the appellant’s argument.
¶36 To establish the Board’s jurisdiction over a claim of reprisal for
whistleblowing, the appellant must establish, inter alia , that she was subjected to
a “personnel action” under 5 U.S.C. § 2302 (a)(2)(A). Jay v. Department of the
Navy , 90 M.S.P.R. 635 , ¶ 12 (2001) , aff’d , 51 F. App’x 4 (Fed. Cir. 2002) . A
voluntary action does not constitute a “personnel action” under 5 U.S.C.
§ 2302 (a)(2)(A). Id. However, the Board does have jurisdiction over an IRA
appeal by an employee whose retirement or resignation was involuntary.
Mintzmyer v. Department of the Interior , 84 F.3d 419 , 423 (Fed. Cir. 1996);
Lawley v. Department of the Treasury , 84 M.S.P.R. 253 , ¶ 8 (1999). The legal
standard for establishing an involuntary retirement or resignation, i.e., a
constructive removal, is the same in an IRA appeal as in the case of an otherwise
appealable action. Jay, 90 M.S.P.R. 635 , ¶ 13.
¶37 A decision to resign or retire is presumed to be voluntary. Shoaf v.
Department of Agriculture , 260 F.3d 1336 , 1340 (Fed. Cir. 2001). The Board has
held that one way an employee can overcome the presumption of voluntariness of
a retirement or resignation is to show that her working conditions were so
22
difficult that a reasonable person in the employee’s position would have felt
compelled to resign or retire. Searcy v. Department of Commerce , 114 M.S.P.R.
281, ¶ 12 (2010); Ragland v. Department of the Army , 84 M.S.P.R. 58 , ¶ 9 (19 99).
Dissatisfaction with work assignments, feeling unfairly criticized, or difficult or
unpleasant working conditions are generally not so intolerable as to compel a
reasonable person to resign . Miller v. Department of Defense , 85 M.S.P.R. 310 ,
¶ 32 (2000) . The Board evaluates the voluntariness of a resignation or retir ement
based on whether the totality of the circumstances support s the conclusion that
the employee was effectively deprived of free choice in the matter. Heining v.
General Services Administration , 68 M.S.P.R. 513, 519-20 (1995 ).
¶38 The administrative judge based his conclusion that the appellant’s decision
to resign was voluntary, despite the difficult conditions she worked under, on
findings that : (1) the appellant was not under threat of removal or other adverse
action at the time of her resignation; (2) the appellant offered a 1 -month notice
with her resignation as a professional courtesy, which a person who was
compelled to resign could not ha ve extended; (3) the Associate Director had valid
performance concerns that justified certain of her actions, including her offer to
the appellant of an opportunity to accept a voluntary demotion and her increased
monitoring of the appellant’s performance; and (4) the appellant withdrew her
grievance related to the Associate Director’s retalia tion for her disclosure. ID
at 29-30. The appellant challenges each of these findings in her cross petition for
review, specifically arguing that she subjectively be lieved she was going to be
demoted or fired, that she did not agree to continue to work under the Associate
Director despite her 1 -month notice , that the Associate Director’s performance
concerns were not legitimate but pretext for whistleblower reprisal, and that she
did not in fact withdraw her grievance. PFR File, Tab 3 at 25 -29.
¶39 We agree that the appellant failed to establish that her decision to resign
was involuntary and note reasons in addition to those relied upon by the
administrative judge . The appellant testified at the hearing that , at the time she
23
filed her formal grievance alleging whi stleblower reprisal on November 21, 2014,
she “wanted to work it out” and had no intention of leaving the agency. HCD I
(testimony of the appellant). The appellant discussed her purchase of a
condominium close to her workplace and plans to retire with her husband in the
area as reasons for wanting to stay with the agency . Id. The appellant also
testified that she was contacted by the state of Montana abo ut a position at the
end of October 2014, and told her point of contact there when she was offered the
position on November 28 , 2014 , that she needed until December 5 to “make up
[her] mind.” Id. She testified that she wanted to give the agency the oppor tunity
to respond to her grievance, believed that the agency would do so by December 5,
2014, and did not intend to make up her mind before that point. Id. Then, during
a meeting on December 4, 2014, the Acting Director told the appellant that an
outside investigator would be appointed to investigate her grievance and that he
did not know when the investigation would be completed.8 Id. The appellant
stated that she was told she would need to return to work under the Associate
Director in the meantime, a t which point she informed the Acting Director and
head of Human Resources that she would resign. Id. The appellant also testified
that she was afraid that the Associate Director intended to fire her because of the
hostile work environment and because th e Associate Director had begun taking
notes of their meetings in November 2014, and that she was concerned that if she
was fired, she would not be able to obtain another job in nursing administration or
management in Montana. Id.
¶40 On balance, the totality of the circumstances supports the administrative
judge’s conclusion that the appellant’s decision to resign was indeed voluntary .
Even considering the hostile work environment to which the agency subjected
her, the appellant’s testimony that she “wanted t o work it out,” had no intention
8 The appointment of an outside investigator suggests to us that the agency took the
appellant’s allegations seriously.
24
of resigning when she filed her formal grievance on November 21, 2014, and that
she did not make up her mind to resign unti l December 4 —by which point she
had received the offer of a position with the state of Montana, id.—strongly
indicates that her decision to resign was based on a rational calculation of the
benefits and drawbacks of alternative courses of action, i.e., was a product not of
coercion but of choice. That the appellant’s decision to resign also stemmed from
her concerns about her diminished reemployment prospects if she was in fact
removed further support s this conclusion.
¶41 Finally, it is evident from the appellant’s testimony that the immediate
cause of her fear of being removed was the Associate Director’s documentation of
their meetings beginning in November 2014, which the administrative judge
found, based on his assessme nt of the Associate Director’s credibility during the
hearing, was a response to the appellant’s credible performance issues and did not
constitute whistleblower reprisal. ID at 24 -25. Even if the Associate Director’s
notetaking at meetings with the appe llant made continuation in the job so
subjectively unpleasant for the appellant that she felt she had no realistic option
but to leave, it was a measure which we agree the Associate Director was
authorized to adopt and is therefore not a valid basis upon w hich the appellant
could prevail on a constructive discharge claim.9 See Staats v. U.S. Postal
Service , 99 F.3d 1120 , 1124 (Fed. Cir. 1996) .
¶42 The appellant therefore failed to establish that her decision to resign was
involuntary . Consequently, unlike the agency’s denial of the appellant’s request
for annual leave prior to her resignation, which was the basis for its change to her
resignation date and constituted a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(ix) as “a decision concerning . . . benefits,” Marren v.
Department of Justice , 50 M.S.P.R. 369 , 373 (1991) , her separation pursuant to
9 It is not uncommon f or supervisors and managers to take notes during a meeting with
an employee and we fail to see how doing so is improper.
25
her voluntary decision to resign —apart from the agency’s denial of her request
for terminal leave —did not constitute a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A), and the Board lacks jurisdiction over her distinct claim that her
involuntary resignation based on intolerable working conditions constituted
whistleblower reprisal . See Comito v. Department of the Army , 90 M.S.P.R. 58 ,
¶ 13 (2001) (finding that the Board lacked jurisdiction over an appellant’s
allegation that an agency coerced her resignation in retaliation for protected
disclosures because she failed to establish that she was forced to resign b ecause
of intolerable workin g conditions); Shelly v. Department of the Treasury ,
75 M.S.P.R. 411 , 413 -14 (1997) ( finding that a separation pursuant to a volunt ary
resignation is not a personnel action and that because an appellant did not show
that his resignation was involuntary, his IRA appeal was not within the Board’s
jurisdiction).
ORDER
¶43 Because the appellant is no longer employed by the agency, no meanin gful
corrective action can be ordered regarding the finding that the agency committed
a prohibited personnel practice when it created a hostile work environment by
significantly changing her duties, responsibilities, and working conditions in
reprisal for her protected disclosure.10
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 t itle 5 of
10 Nonetheless, as further described below, the appellant may be entitled to
consequential and compensatory damages as well as attorne y fees. If the appellant
decides to file motions to that effect, separate addendum proceedings may be
commenced to adjudicate such requests. See 5 C.F.R. § 1201.204 (d)(1) -(e)(1).
26
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 , 1202.202, and 1201.203. If
you believe you mee t 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 REGARD ING
YOUR RIGHT TO REQUES T CONSEQUENTIAL AN D/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 for eseeabl e 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
expert witness fees, and costs, 5 U.S.C. §§ 1214 (g)(2), 1221(g)(1)(A)(ii), which
you may be entitled to receive.
If you believe you a re entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAY S OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOT ICE 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 commi tted 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
27
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
approv al of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIG HTS11
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). Altho ugh we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to f ile
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a pet ition for review with the U.S.
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.
28
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 Fe deral Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
29
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of pr epayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
30
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 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 Fe deral 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.
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 Revi ew Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
31
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SCOTTEN_DIANNE_DE_1221_16_0087_W_1_FINAL_ORDER_2062014.pdf | 2023-08-23 | null | DE-1221 | NP |
2,767 | https://www.mspb.gov/decisions/nonprecedential/THORNBURY_JOSHUA_D_DE_0752_14_0490_A_2_FINAL_ORDER_2062052.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSHUA D. THORNBURY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0752 -14-0490 -A-2
DATE: August 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael A. Shaw , Esquire, Cottonwood , Arizona, for the appellant.
Maxine N. Romero , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the addendum initial
decision, which awarded the appellant $34,530.50 in attorney fees and $825.27 in
costs . For the reasons discussed below, we GRANT the appellant’s petition for
review and AFFIRM the initial decision AS MODIFIED. Except as expressly
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
MODIFIED by this Final Order to increase the attorney fee award to account for
math ematical errors in the appellant’s representative’ s billing records and the
administrative judge’s analysis , we AFFIRM the initial decision.
BACKGROUND
¶2 In July 2014, the appellant filed an appeal of his June 2014 removal and
asserted due process and whistleblower retaliation affirmative defenses .
Thornbury v. Department of Veterans Affairs , MSPB Docket No. DE -0752 -14-
0490 -I-1, Initial Appeal File, Tab 1 . In November 2016, the administrative judge
revers ed the removal action after finding that the agency failed to provide the
appellant with minimal due process.2 Thornbury v. Department of Veterans
Affairs , MSPB Docket No. DE -0752 -14-0490 -I-2, Initial Decision at 6 -8, 13
(Nov. 17, 2016) . The initial deci sion became the Board’s final decision when
neither party filed a petition for review.3 5 C.F.R. § 1201.113 .
¶3 On February 17 , 2017, the appellant filed a motion for attorney fees and
costs in connecti on with the Board’s final order reversing his removal on due
process grounds . Thornbury v. Department of Veterans Affairs , MSPB Docket
No. DE -0752 -14-0490-A-1, Attorney Fee File (AFF), Tab 1 . In his motion, he
2 The agency rescinded the June 2014 removal in November 2014 , which did not moo t
the initial appeal, and removed the appellant again in January 2015 , which the
administrative judge affirmed. Thornbury v. Department of Veterans Affairs , MSPB
Docket No. DE -0752 -15-0173 -I-1, Initial Decision (Nov. 17, 2016). The initial
decision becam e the Board’s final decision when neither party filed a petition for
review. 5 C.F.R. § 1201.113 .
3 The appellant subsequently filed a petition for enforcement , which alleged that the
agency failed to comply with the Board’s November 17, 2016 final decision that
reversed the agency’s removal action. Thornbury v. Department of Veterans Affairs ,
MSPB Docket No. DE -0752 -14-0490 -C-1, Compliance File (CF) , Tab 1. The
administrative judge f ound that the agency failed to comply with the Board’s final order
and granted the petition for enforcement. Thornbury v. Department of Veterans Affairs ,
MSPB Docket No. DE -0752 -14-0490 -C-2, Compliance Initial Decision (Feb. 13, 2018).
The compliance mat ter remain s pending with the Board, which we will resolve in a
separate final order . Thornbury v. Department of Veterans Affairs , MSPB Docket No.
DE-0752 -14-0490 -X-1.
3
sought $49,558.49 in attorney fees and costs incurred by his attorney, Charles A.
Shaw of the Law Offices of Charles Anthony Shaw, PLLC. Id. at 29, 38 -54. The
appellant supplemented his motion for attorney fees three times. AFF, Tab 4;
Thornbury v. Department of Veteran s Affairs , MSPB Docket No. DE -0752 -14-
0490 -A-2, Attorney Fee File (A -2 AFF), Tab 4 at 13 -21, Tab 10 at 33 -34. The
administrative judge issued an addendum initial decision awarding the appellant
attorney fees and costs in the amount of $35,355.77 . A-2 AFF , Tab 12,
Adden dum Initial Decision (AID) at 1, 12 . In particular, he awarded $23,075.00
in attorney fees for work before January 1, 2015 (92.3 hours at the $250/hour
rate), and $10,968 .00 in attorney fees for work after January 1, 2015 (36.56 hours
at the $300/hour rate).4 AID at 10 . He further ordered the agency to pay costs in
the amount of $825.27 . AID at 12 .
¶4 The appellant has filed a petition for review . Petit ion for Review (PFR)
File, Tab 2 . The agency has not filed any response to the petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 To receive an award of attorney fees under 5 U.S.C. § 7701 (g)(1), an
appellant must show the following: (1) he was the prevailing party; (2) he
incurr ed attorney fees pursuant to an existing attorney -client relationship; (3) an
award of attorney fees is warranted in the interest of justice; and (4) the amount
of attorney fees claimed is reasonable. See Caros v. Department of Homeland
Security , 122 M.S.P.R. 231 , ¶ 5 (2015). On review, the appellant does not
challenge any of the administrative judge’s findings regarding the fee awar d
factors or the administrative judge’s award of costs but contends that the
administrative judge’ s attorney fee s award for legal work at the $300/hour rate
4 According to the administrative judge, the appellant requested attorney fees for 92.3
hours at the $250/hour rate and 141.76 hou rs at the $300/hour rate. AID at 7. The
administrative judge also ordered the agency to pay 7.5 hours of paralegal work at the
$65/hour rate for a total of $487.50. AID at 10. The agency has already paid the
$35,335.77 fee award to the appellant’s representative , and this amount is no longer in
controversy. Petition for Review File, Tab 1 at 5.
4
included a mathematical error that deprived him of $5,730.00 in attorney fees.
PFR File, Tab 2 at 4-8. Accordingly, we limit our review of the addendum initial
decision to whether the administrative judge made any mathematical errors when
calculating the amount of claimed hours .
We modify the addendum initial decision to correct a mathematical error a nd find
that the appellant incurred an additional 3.9 hours at the $250/hour rate.
¶6 The administrative judge found that the appellant claimed 92.3 hours for
legal work before January 1, 2015, at the $250/hour rate. AID at 7; AFF, Tab 1
at 39-46. The administrative judge did not disallow any of the se claimed hours.
AID at 10. Although the appellant does not challenge this portion of the fee
award on review, PFR File, Tab 2 at 4-5 & n.1, we find that the administrative
judge’s calculations included a mathematical error. The appellant’s
representative’s billing records for legal work before January 1, 2015, include
five itemized, task -based lists. AFF, Tab 1 at 39 -46. The final task -based list,
for work between October 7, 2014, and December 16, 2014, lists a total amount
of 45.45 hours. Id. at 46. However, when we add up each individual task -based
line item in that list , the total amount is 49.35 hours, 3.9 more hours than the
appellant or the administrative judge calculated .5 As previously noted, the
administrative judge did not disallow any claimed hours for this time period, and
we see no basis to disallow any of these claimed hours, so we modify the
addendum initial decision to award these 3.9 hours at the $250/hour rate for a
total of $975.00 .
We modify the addendum initial decision to correct a mathematical error and find
that the appellant incurred an additional 20.4 hours at the $300/hour rate.
¶7 The administrative judge found that the appellant claimed 141.76 hours for
legal work after January 1, 2015, at the $300/hour rate. AID at 7; AFF, Tab 1
at 46-52, Tab 4 at 5; A -2 AFF, Tab 4 at 13 -21, Tab 10 at 33-34. The appellant’s
5 The four other itemized, task -based lists contained no mathematical errors when
calculating the total hours.
5
representative’s billing records contain a similar mathematical error in one of the
itemized, task -based list ’s total am ount. The first itemized, task -based list for
legal work between January 21, 2015, and February 17, 2017, lists a total amount
of 85.61 hours. AFF, Tab 1 at 46 -52. The second itemized, task -based list
describes 1 hour for work on February 21, 2017. AFF , Tab 4 at 5. The third
itemized, task -based list for legal work between February 21, 2017, and April 3,
2018, lists a total amount of 36.15 hours; however, when we add up each
individual task -based line item from that list, the total amount is 36.4 hours,
.25 hours more than the appellant or the administrative judge calculated.
A-2 AFF, Tab 4 at 13 -21. The fourth itemized, task -based l ist for legal work
between June 22, 2018, and July 2, 2018, lists a total amount of 19 hours. Thus,
the total amount of hours claimed at the $300/hour rate is 142.01 hours
(85.61+1+36.4+19) , not the 141.76 hours described by the administrative judge.
AID at 7.
¶8 The administrative judge disallowed 44.5 of the 54.5 hours claimed for
work between December 28, 2016, and February 17, 2017, for drafting the motion
for attorney fees. AID at 9. The administrative judge also disallowed 11 of the
19 hours claimed for work related to the appellant’s response to the
administrative judge’s Notice of Intent to Deny Certain Fees and Expenses.
AID at 9-10; A -2 AFF, Tab s 9-10. The administrative judge further disallowed
29.3 of the 36.15 hours of time related to the app ellant’s petition for
enforcement.6 AID at 10. However, because of the mathematical error identified
in the third itemized, task -based list , the administrative judge intended to
6 The appellant concurred with the administrative judge’s decision to disallow these
hours because his claim for attorney fees related to his petition for enforcement will be
adjudicated in a separate addendum proceeding once the Board issues a final decision
on that matter. AID at 10 & n.7; A -2 AFF, Tab 10 at 7 -8. The appellant also withdrew
his request for 20.4 hours of legal work between February 19, 2017, and February 24,
2017, related to the petition for enforcement. AID at 10 (citing A -2 AFF, Tab 10 at 8).
The billing records for this time period are found in the appellant’s petition for
enforcement. CF, Tab 1 at 67 -68.
6
disallow 29.55 of the 36.4 claimed hours for the petition for enforcement . Thus,
the administrative judge should have disallowed a total of 85.05 hours
(44.5+11+29.55) at the $300/hour rate .
¶9 Using the correct calculations, the appellant claimed 142.01 hours at the
$300/hour rate , and the administrative judge should have disallowe d 85.05 of
those hours. Therefore, the appellant incurred 56.96 hours at the $300/hour rate.
The administrative judge, however, only awarded 36.56 hours at the $300/rate in
the addendum initial decision.7 AID at 10. Thus, we modify the addendum initial
decision to award the appellant the se additional 20.4 hours at the $300/hour rate
for a total of $6,120.00.8
¶10 The appellant is owed an additional 3.9 hours for legal work at the
$250/hour rate for a total o f $975 .00 and an additional 20.4 hours for legal work
at the $300/hour rate for a total of $6,120 .00. Accordingly , the addendum initial
decision is modified , and the appellant is awarded an additional $7,095 .00 in
attorney fees to the Law Offices of Charl es Anthony Shaw, PLLC .
ORDER
¶11 We ORDER the agency to pay attorney fees in the amount of $7,095.00 to
the Law Offices of Charles A nthony Shaw, PLLC . The agency must complete
this action no later than 20 days after the date of this decision. Title 5 of the
United States Code, section 1204(a)(2) ( 5 U.S.C. § 1204 (a)(2)).
¶12 We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Bo ard’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
7 It appears that the administrative judge incorrectly deducted the 20.4 hours of legal
work for the petition for enforcement that th e appellant withdrew when calculating this
final amount. See supra n.6.
8 The appellant only requested an additional 19.1 hours for legal work at the $300/hour
rate for a total of $5,730 .00. Nevertheless, as described above, based on the correct
mathem atical calculations, the appellant is owed an additional $6,120 .00 for legal work
at the $300/hour rate.
7
the attorney to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶13 No later than 30 days after the agency tells the appellant or the attorney that
it has fully carried out the Board’s Order, the appellant or the attorney may file a
petition for enforcement with the office that issued the initial decision on this
appeal, i f the appellant or the attorney believes that the agency did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS9
The initial decision, as supplemented by this Final Order, cons titutes 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 f ollowing
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regardi ng which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the app licable time limit may result in the dismissal of your case by your
chosen forum.
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As in dicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a part icular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review w ith the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you subm it a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Addition al information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regardin g pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
9
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimin ation. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discriminatio n claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decisi on. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washing ton, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (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 whistleblow er claims
only, excluding all other issues , then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction. The court of appeals must receive your
petition f or 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, yo u must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availab le at the court’s website, www.cafc.uscourts.gov. Of particular
11
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securin g pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before th e 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | THORNBURY_JOSHUA_D_DE_0752_14_0490_A_2_FINAL_ORDER_2062052.pdf | 2023-08-23 | null | DE-0752 | NP |
2,768 | https://www.mspb.gov/decisions/nonprecedential/ROGERS_STACEY_K_AT_0752_22_0332_I_1_REMAND_ORDER_2062096.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STACEY K. ROGERS,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -22-0332 -I-1
DATE: August 23, 2023
THIS ORDER IS NONPRECEDENTIAL1
Stacey K. Rogers , Hinesville, Georgia, pro se.
Dana L. Vockley , Esquire, and Erika Lucas , Esquire, Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal from Federal service . 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND the case to the Atlanta Regional Office for further adjudication in
accordance with this Rema nd Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 Electronic service of the Board’s issuances is only appropriate for properly
register ed e -filers who affirmatively consent to electronic service. See 5 C.F.R.
§ 1201.14 (e)(1) -(2) (noting that registration as an e -filer constitutes consent to
accept electronic service and that the exclusive means for registering as an e -filer
is to do so through e -Appeal Online), (j)(1) (identifying that paper copies of
Board issuances are not ordinarily served on registered e -filers), (j)(3) (noting
that registered e -filers are responsible for monitoring case activity in the
e-Appeal Online Repository to ensure that they have received all case -related
documents). The record for this appeal does not contain the appellant’s
affirmative consent to accept electronic service ; however, s everal of the
administrative judge’s orders were exclusively served on the appellant
electronically , including the orders scheduling the prehearing conference and
setting forth the deadline for prehearing submissions. Initial Appeal File (IAF),
Tabs 5, 7, 10.
¶3 As a result of the appellant’s failure to attend the prehearing conf erence,
she was denied the opportunity to file prehearing submissions and to have
witnesses appear at the hearing. IAF, Tabs 12, 15. The appellant was thus
effectively denied the opportunity to properly prosecute her appeal. See
McGuire v. U.S. Postal Service , 5 M.S.P.R. 54 , 56 (1981) (finding that an
administrative judge’s failure to serve an appellant with copies of requests for
documentation denied the appellant the opportunity to timely prosecute his
appeal). Under the specific circumstances in this case, we find it appropriate to
vacate the initial decision and remand the appeal for a new hearing. On remand,
the administrative judge shoul d update and verify the appellant’s preferred
method of service and set forth a new hearing schedule.
3
ORDER
¶4 For the reasons discussed above, we remand this case to the Atlanta
Regional O ffice for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROGERS_STACEY_K_AT_0752_22_0332_I_1_REMAND_ORDER_2062096.pdf | 2023-08-23 | null | AT-0752 | NP |
2,769 | https://www.mspb.gov/decisions/nonprecedential/COX_WADE_T_SF_0752_22_0180_I_1_FINAL_ORDER_2062125.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WADE T. COX,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -22-0180 -I-1
DATE: August 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff Letts , Esquire, Ruther Glen, Virginia, for the appellant.
Mona C. Williams , Esquire, Silverdale, Washington, 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
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review and REVERSE the initial decision . We DO NOT
SUSTAIN 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
¶2 The ap pellant most recently held the position of Supervisor y Logistics
Management Specialist, a GS -13 position in Silverdale, Washington. Initial
Appeal File (IAF), Tab 6 at 15, 71. The appellant’s supervisor proposed his
removal based on one charge of conduct unbecoming of a supervisor concerning a
verbal alterc ation in October 2021 , during which he raised his voice and cursed at
his colleague —another supervisor. Id. at 29-31. In explaining the reasons for her
recommended penalty, t he proposing official referenced the appellant’s history of
similar disrespectfu l outbursts for which he was not formally disciplined and
attached what she labeled as “Historical Emails and statements documenting like
or similar behavior.” Id. at 29 -32, 44 -65. The appellant replied to the proposal
notice and pr ovid ed written stateme nts from witnesses to the alleged October
2021 misconduct . Id. at 18 -28. The deciding official issued a decision letter
removing the appellant from his position in January 2022. Id. at 15 -17.
¶3 The appellant filed this appea l arguing that the charge was untrue, he was
denied due process, and the penalty was unre asonable. IAF, Tab 1 at 4, Tab 11
at 1-11. Following a hearing, the administrative judge issued an initial decision
sustaining the removal . IAF, Tab 17, Initial Decision (ID).
¶4 The appellant h as filed a timely petition for review, Petition for Review
(PFR) File, Tab 1, and the agency has responded in opposition, PFR File Tab 3.
The appellant replied to the agency’s response. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 In his petition f or review, the appellant challenges the administrative
judge’s findings that the agency proved its charge and that the penalty of removal
was reasonable. PFR File, Tab 1 at 4-13, 18 -22. He also reasserts that the
agency committed a due process violation . Id. at 13 -17; IAF, Tab 11 at 8. As
discussed below, we find that the agency violated the appellant’s due process
3
rights. Because we reverse his removal on due process grounds, we decline to
address his arguments concerning the charge and penalty.
¶6 The essential requirements of procedural due process are prior notice of the
charges against the employee and a meaningful opportunity to respond to those
charges. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985);
see 5 U.S.C. § 7513 (b). The appellant ’s main point on review is that the agency
did not provide him adequate notice of past instances of similar misconduct relied
upon by the deciding official in his decision on the penalty. PFR File, Tab 1
at 13-17. He presents two distinct allegations that he was denied due process . Id.
¶7 The appellant’s first allegation pertains to the past instances of misconduct
considered by the deciding official that were documented in emails attached to
the proposed removal . PFR File, Tab 1 at 14; IAF, Tab 6 at 44-65. The appellant
argues that these emails did not provide him with a legitimate opportunity to
contest the accuracy of the allegations contained in the emails and that due
process requires the specific allegations of the past misconduct to be in the body
of the notice of proposed removal . PFR File, Tab 1 at 14. We disagree. In
Alvarado v. Department of the Air Force , 97 M.S.P.R. 389 , ¶ 15 (20 04), we
explained that a notice of proposed adverse action need not be a self -contained
document; the notice requirement is satisfied when the proposal and any
attachments to it, taken together, provide the employee with specific notice of the
charges agai nst him so that he can make an informed and meaningful reply. Here,
the proposed removal referred to a history of similar disrespectful outbursts and
that the appellant had been “engaging in this type of misconduct for years .” IAF,
Tab 6 at 32 . The prop osed removal specifically cited “Historical Emails and
statements documenting like or similar behavior” as materials relied upon and
attached those emails . Id. at 29, 44-65. Thus, the appellant had notice and an
opportunity to respond to the allegations of past misconduct that were contained
in the proposal packet.
4
¶8 The appellant’s second allegation is that the deciding official erred by
consider ing two other past instances of misconduct that were not specified
anywhere in the proposal packet , and the admi nistrative judge erred in finding
otherwise . PFR File, Tab 1 at 1 3-17; ID at 1 6. We agree. The deciding official
described the appellant’s past work record as including eight examples of
unprofessional and disrespectful conduct. IAF, Tab 10 at 6, Tab 1 2 at 16. At the
hearing, he testified that two out of the eight were based on his own experience
with the appellant and were not included in the proposal notice or otherwise
provided to the appellant during the removal process .2 Hearing Transcript (HT)
at 118 -20, 147 -49 (testimony of the deciding official) .
¶9 Pursuant to the decisions of the U.S. Court of Appeals for the Federal
Circuit in Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir. 2011),
and Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1376 -77
(Fed. Cir. 1999), a deciding official violates an employee’s due process rights
when he relies upon new and material ex parte information as a basis for his
decision on the merits of a proposed charge or the penalty to be imposed.
2 The two examples appear to be the following:
Unprofessional behavior toward me during a meeting to deliver my
decision on your administrative grievance regarding you[r] Letter of
Reprimand on 2/14/19. During this meeting I counseled you very
specifically on how your behavior was unacceptable and my expectations
that you improve. I provided this to you in writing .
Unprofessional behavior toward me during a conversation about the
Extended Refit Period 2 Technical Foundation Paper on 5/14/20. The
conversation devolved into an incoherent rant from you about unrelated
topics including hiring practices, your disagreement with organizational
changes, alleged favoritism, and your feelings of persecution. I
repeatedly had to ask you to stop interrupting me, pointed out that your
behavior was the same behavior you exhibited during our meeting on
2/14/19, and ended the discussion with direction to you to put your
allegations in writing and submit them to me, o r call the TRF or NAVSEA
hotlines if you felt I was untrustworthy. You did neither.
IAF, Tab 10 at 6, Tab 12 at 16 .
5
Singh v. U.S. Postal Servi ce, 2022 MSPB 15 , ¶ 23. When determining whether a
due process violation has occurred, there is no basis for distinguishing betwee n ex
parte information provided to the deciding official and information personally
known by the deciding official if the information was considered in reaching the
decision and not previously disclosed to the appellant . Id. Thus, we consider
whether these two instances of past misconduct constitute new and material ex
parte information.
¶10 In Stone , the Federal Circuit identified the following factors to be used to
determine if ex parte information is new and material: (1) whether the ex parte
information introduced cumulative, as opposed to new, information; (2) whether
the employee knew of the information and had an opportunity to respond; and
(3) whether the communication was “of the type likely to result in undue pressur e
on the deciding official to rule in a particular manner.” Stone , 179 F.3d at 1377.
Ultimately, we must determine “whether the ex parte communication is so
substantial and so likely to cause prejudice that no employee can fairly be
required to be subjec ted to a deprivation of property under such circumstances.”
Id.
¶11 Regarding the first Stone factor, the Board has held that additional, specific
instances of rude and disrespectful behavior, although similar in nature to the
charged misconduct, cannot be considered merely cumulative. See Silberman v.
Department of Labor , 116 M.S.P.R. 501 , ¶ 12 (2011). The two examples noted
by the deciding official involved specific conversations he had with the appellant
on specific dates during which the app ellant exhibited unprofessional behavior.
IAF, Tab 10 at 6, Tab 12 at 16. This information was new and not merely
cumulative . Regarding the second Stone factor, the deciding official testified that
the appellant was not given notice or an opportunity to respond to these two
instances during the disciplinary process, and there is no indication in the record
to the contrary. HT at 147 -49 (testimony of the deciding official).
6
¶12 Regarding the third Stone factor, we found no evidence that the information
about these past instances of misconduct —personally known to the deciding
official —resulted in undue pressure on him to remove the appellant.
Nonetheless, the undue pressure factor is only one of several enumerated factor s
and is not the ultimate inquiry in the Stone analysis. Silberman , 116 M.S.P.R.
501, ¶ 13 (citing Ward , 634 F.3d at 1280 n.2 ). The Board has found that
information is plainly material when the deciding official admitted that the
information influenced his penalty determination. Compare Lopes v. Department
of the Navy , 116 M.S.P.R. 470 , ¶¶ 12-13 (2011) (finding that ex parte information
about past misconduct was material, even if it may not have resulted in undue
pressure on the deciding official, as evidenced by the deciding official’s
statements about the past misconduct and his penalty determination ), with
Dieter v. Department of Veterans Affairs , 2022 MSPB 32 , ¶¶ 1 5-18 (finding that a
deciding official’s belief that an employee had been disruptive in the past did not
rise to the level of a due process violation because she did not testify that she
considered any “disruptions” tha t were not referenced in the proposal notice in
her decision ). Here, the deciding official testified that, after considering these
instances of unprofessional behavior, his decision about the appropriate penalty
changed from a 2-week suspension to removal . HT at 118 -19 (testimony of the
deciding official) .3 Therefore, the ex parte information was plainly material.
¶13 Based on the foregoing, we find that the deciding official’s consideration of
new and material information undermined the appellant’s constitutional due
3 The deciding official testified to the following:
I started going through a couple of my own experiences with [the
appellant]. By the time I got to number 8, for unprofessional behavior for,
you know, all the things that are described in those letters, that’s really
when my mind changed . . . . So when I sat down, honestly, I hadn’t
been —in my head, I’m thinking, it’s probably about a t wo-week
suspension. It’s very serious, but when I got to the eighth instance of this
behavior being repeated to a greater or lesser degree, that’s when my mind
changed, and I said, I think the appropriate decision here is removal.
7
process guarantee of notice and of the opportunity to respond. Accordingly, we
reverse the initial dec ision. Because we reverse the initial decision on due
process grounds, we do not address the appellant’s remaining arguments on
review. See Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶ 10 (2012)
(declining to consider any of the appellant’s other arguments after reversing an
agency removal action on due process grounds).
ORDER
¶14 We ORDER the agency to cancel the appellant’s removal and restore the
appellant effective January 15, 2022. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency m ust complete this action no
later than 20 days after the date of this decision.
¶15 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, n o 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 r equests 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 d ecision.
¶16 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 age ncy about its progress. See 5 C.F.R. § 1201.181 (b).
¶17 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
8
should contain specific reasons why the appellant believes that th e 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).
¶18 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 wi thin the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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 s et 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 be lieve 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 appe al.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the a ppropriate forum with which to file. 5 U.S.C. § 7703 (b).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on wh ich option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immed iately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.caf c.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10
If you are interested in securing pro bono representation for an a ppeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neit her endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed t hat you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claim s—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this c ase,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
11
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
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 Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroacti ve 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 d amages) 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 Remed y 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 e arning 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 CEN TER CHECKLIST FOR BA CK 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 (Payro ll/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 P ayment 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. Provid e 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. | COX_WADE_T_SF_0752_22_0180_I_1_FINAL_ORDER_2062125.pdf | 2023-08-23 | null | SF-0752 | NP |
2,770 | https://www.mspb.gov/decisions/nonprecedential/PATRIE_JOHN_D_PH_4324_18_0222_I_2_FINAL_ORDER_2062210.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN D. PATRIE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
PH-4324 -18-0222 -I-2
DATE: August 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patrick H. Boulay , Esquire, Washington, D.C., for the appellant.
Courtney B. Wheeler , Esquire, and Wendy I. Provoda , Esquire, Windsor,
Connecticut, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for revie w of the initial decision, which
granted the appellant’s request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 . On petition for review, the
agency disputes the administrative judge’s findings on the issue of whethe r 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 manifested an intention to abandon his civilian career . 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 i s 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 req uired
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
close d. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
ORDER
¶2 We ORDER the agency to reemploy the appellant in his prior position
retroactive to January 2016. See Kerr v. N ational 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.
¶3 We also ORDER the a gency to pay the appellant the correct amount of
wages and benefits lost as a result of its failure to reemploy him, as required
under 38 U.S.C. § 4324 (c)(2). 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.
3
¶4 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).
¶5 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 appe llant
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).
¶6 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the De fense 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
documentat ion 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORN EY 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 38 of
the United States Code (38 U.S.C.), section 4324(c)(4). 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
4
your motion for attorney fees and costs with the office that issued the initial
decision on your appeal.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a genera l rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision . 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich 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 t he Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by an y attorney nor warrants that
any attorney will accept representation in a given 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 appro priate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Prote ction Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the distri ct 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/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess 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 ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u 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 describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt 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
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 (s uch 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 t he 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 t o 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 em ployment.
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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805 (g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 A nnual 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 form s 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. | PATRIE_JOHN_D_PH_4324_18_0222_I_2_FINAL_ORDER_2062210.pdf | 2023-08-23 | null | PH-4324 | NP |
2,771 | https://www.mspb.gov/decisions/nonprecedential/COLICELLI_MARCUS_DC_4324_19_0769_M_1_FINAL_ORDER_2061710.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARCUS COLICELLI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-4324 -19-0769 -M-1
DATE: August 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brian J. Lawler , Esquire, San Diego, California, for the appellant.
Michael Potter , Esquire, Providence, Rhode Island, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The ag ency has filed a petition for review of the remand initial decision,
which granted the appellant’s request for corrective action in his Uniformed
Services Employment and Reemployment Rights Act (USERRA) appeal . For the
reasons discussed below, we GRANT th e agency’s petition for review , REVERSE
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 grant of corrective action in the form of 66 workdays
of additional military leave , and DENY the appellant corrective action in that
regard. We AFFIRM the remand initial decision regarding the administrative
judge’s denial of the agency’s challenge to the separate grant of corrective action
in Colicelli v. Department of Veterans Affairs , MSPB Docket No. DC-4324 -19-
0769 -I-1, concerning the appellant’s entitlement to differential pay .
BACKGROUND
¶2 At all relevant times, the appellant was an agency attorney who also served
as a Judge Advocate in the U.S. Army Reserves. Colicelli v. Department of
Veterans Affairs , MSPB Docket No. DC -4324 -19-0769 -I-1, Initial Appeal File
(IAF), Tab 14 at 7, 20 -21. From October 2016 to February 2017, he was ordered
to active duty to attend military training for newly appointed Judge Advocates at
Fort Benning, Georgia , and Charlottesville, Virginia . Id. at 5, 7, 20 . From March
to Septembe r 2018, he again was ordered to active duty, this time to serve as a
Trial Defense Counsel at Fort Meade, Maryland . IAF, Tab 14 at 11, 20. The
appellant served both periods under 10 U.S.C. § 12 301(d), which provides for
voluntary active duty of reservists. Id. at 5, 11; see Kluge v. Department of
Homeland Security , 60 F. 4th 1361 , 1363 (Fed. Cir. 2023) .
¶3 Based on his active duty service, the appellant requested the agency provide
him differential pay under 5 U.S.C. § 5538 (a)2 and 22 days of additional paid
military leave under 5 U.S.C. § 6 323(b) for each of calendar years 2016, 2017,
2 Under 5 U.S.C. § 5538 (a), Federal employees who are absent from civilian positions
due to certain military responsibilities may qualify to receive the difference between
their military pay and what they would have been paid in their civilian employment
during the time of their absence. This entitlement is referred to as differential pay.
Adams v. Department of Homeland Security , 3 F.4th 1375 , 1377 (Fed. Cir. 2021) , cert.
denied , 142 S. Ct. 2835 (2022) .
3
and 2018 .3 Colicelli v. Department of Veterans Affairs , MSPB Docket No . DC-
4324 -19-0769 -M-1, Appeal File (M-1 AF), Tab 6 at 152, Tab 11. After the
agency denied these requests, the appellant filed a Board appeal alleging that the
denials violated USERRA, specifically 38 U.S.C. § 4311 . IAF, Tab 1, Tab 14
at 17-18.
¶4 Following the appellant’s withdrawal of his hearing request , the
administrative judge issued an initial decision granting in part and denying in part
the appellant’s request for corrective action. IAF, Tab 21, Initial Decision ( ID).
Based on his interpretation of the decision of the U.S. Cour t of Appeals for the
Federal Circuit (Federal Circuit) in O’Farrell v. Department of Defense , 882 F.3d
1080 (Fed. Cir. 2018) , the administrat ive judge granted the appellant’s request for
differential pay , finding that he qualified for such pay because he was ordered to
active duty to serve in a “contingency operation ” as defined in 10 U.S.C.
§ 101(a)(13). ID at 7 -12. The administrative judge then denied the appellant his
request for additional military leave, finding that, although O’Farrell also
supported that request, the appellant did not timely request such leave from the
agency . ID at 4, 12 -14. Neither party pe titioned the Board for review of the
initial decision, which thus became the Board’s final decision. 5 C.F.R.
§ 1201.113 .
¶5 The appellant appealed the initial decision to the Federal Circ uit, to which
he asserted that the agency failed to produce in its response to his appeal emails
indicating that he timely requested additional military leave. Colicelli v.
Department of Veterans Affairs , No. 2020 -2048, 2021 WL 6112979 at *1-2 (Fed.
Cir. Dec. 27, 2021) (per curiam) . Based on this undisputed assertion, the Federal
Circuit vacated the portion of the initial decision denying corrective action and
remanded the case for the administrative judge to order the production of the
3 This was in addition to the 15 days of military leave for each of fiscal years 2017 and
2018 the appellant had been awarded under 5 U.S.C. § 6 323(a). IAF, Tab 14 at 20 -21.
4
appell ant’s requests for additional military leave and re-determine whether the
appellant was entitled to relief. Id. at *2-3.
¶6 On remand, the parties stipulated that th e appellant timely requested
22 days of additional paid military leave during each of calenda r years 2016,
2017, and 2018. M -1 AF, Tab 11, Tab 12 at 7. After the appellant waived his
right to a hearing on remand , M-1 AF, Tab 10 at 1, the administrative judge
granted the appellant’s request for 66 total workdays of addition al military leave.
M-1 AF, Tab 15, Remand Initial Decision (RID) at 4-5. This was in addition to
the grant of differential pay in the previous initial decision, which the
administrative judge observed was final and that the agency had paid the
differential pay . RID at 5 -6.
¶7 The agency filed a petition for review in which it argues, among other
things, that the administrative judge misapplied O’Farrell and that the appellant
was not ordered to serve “in support of a contingency operation” as required for
additional military leav e. Petition fo r Review (PFR) File, Tab 1 at 5, 8 -18. The
appellant filed a response, to which the agency replied. PFR File, Tabs 5 -6.
ANALYSIS
The appellant was not entitled to additional military leave under 5 U.S.C.
§ 6323(b).
¶8 In relevant part, 38 U.S.C. § 4311 provides that a person who performs or
has performed military service shall not be denied any benefit of employment on
the basis of that service. When the benefit in question is only available to
members of the military, an employee making a claim under 38 U.S.C. § 4311 is
only required to show that he was denied that benefit. Adams v. Department of
Homeland Security , 3 F.4th 1375 , 1377 -78 (Fed. Cir. 2021) , cert. denied ,
142 S. Ct. 2835 (2022) .
¶9 Under 5 U.S.C. § 6323 (a), Federal employees who perform certain types of
reserve military duty are entitled to 15 days of paid military leave per fiscal year.
In addition to these 15 days, 5 U.S.C. § 6323 (b) provides in relevant part that an
5
employee who, as a reservist in the armed forces, performs military service as a
result of an order to active duty “in support of a contingency operation” as
defined in 10 U.S.C. § 101 (a)(13), is entitled, during and because of such service,
to an additional 22 workdays of paid military leave per calendar year. In turn,
10 U.S.C. § 101 (a)(13) defines “contingency operation,” as relevant to this case,
as a “military operation” that results in the order to active duty of members of the
uniformed services under any law during a national emergen cy declared by the
President.4
¶10 The record establishes that, for both periods of active duty for which he
claimed additional military leave, the appellant was a U.S. Army reservist ordered
to active duty under a provision of law, 10 U.S.C. § 12301 (d), during a national
emergency declared by the President. 83 Fed. Reg. 46067 (Sept. 10, 2018);
82 Fed. Reg. 43153 (Sept. 11, 2017); 81 Fed. Reg. 60579 (Aug. 30, 2016); IAF,
Tab 14 at 5, 11. At issue i n this case is thus whether the appellant served on
active duty “in support of” a “military operation” which resulted in his orders.
We find that he did not.
¶11 In O’Farrell , 882 F.3d at 1082 -83, 1087, the Federal Circuit held that a
U.S. Army reservist ordered to active duty under 10 U.S.C. § 12301 (d) to replace
a civilian who had, in his own capacity as a U.S. Arm y reservist, deployed to
Afghanistan, was entitled to additional military leave. The Federal Circuit
explained that the phrase “in support of” a contin gency operation in 5 U.S.C.
§ 6323 (b) include d indirect support, and that by replacing an employee who
directly supported a contingency operation through his deployment to
Afghanistan, the petitioner was called to active duty “in support of” a
contingency operation. Id. at 1086 -87.
4 The appellant did not claim, nor does he appear, to be entitled to corrective action
under any other portion of 5 U.S.C. § 6323 (b) or 10 U.S.C. § 101 (a)(13).
6
¶12 The Federal Circu it made two additional points in O’Farrell important to
this case: (1) that the phrase “military operation ,” as part of the definition of
“contingency operation” in 10 U.S.C. § 101 (a)(13), “[a]t t he very least . . .
includes engagement in open hostilities against the nation’s enemies”; and
(2) that its holding “[did] not mean that all reservists called to active duty during
a national emergency will be entitled to additional leave. Instead, they m ust
demonstrate that their call to active duty was ‘in support of a contingency
operation,’ as properly construed.” Id. at 1084 n.4, 1086 n.5. In the latter
statement, it is clear that the Federal Circuit recognized a demarcation past which
an asserted c onnection between an individual’s order to active duty and a
contingency operation is too tenuous to satisfy 5 U.S.C. § 6323 (b).
¶13 Here, there is no indication in the record that either of the appell ant’s orders
to active duty service was in direct support —or even in indirect support of the
kind accepted in O’Farrell —of a military operation. In 2018, the appellant was
ordered to active duty as a Trial Defense Counsel in the continental United States.
IAF, Tab 14 at 11. In that capacity, there is no indication that he performed
duties , which, save perhaps through some unspecific organizational connection
recognized as insufficient in O’Farrell , support ed “engagement in open hostilities
against the na tion’s enemies.” Further, unlike in O’Farrell , there is no indication
that the appellant was ordered to active duty as a Trial Defense Counsel to
replace an individual directly supporting a contingency operation. Likewise ,
there is no indication that the appellant’s order to active du ty to attend training
for new Judge Advocates was itself “in support of a contingency operation.”
Even if it could be claimed that the training was provided to prepare the appellant
for future service in support of a militar y operation, or that there was some other
connection between the training and a military operation, nothing in the record
demonstrates that the appellant’s order to attend the training supported a
contingency operation to the degree accepted in O’Farrell for entitlement to
additional military leave. Thus, finding that the appellant’s orders to active duty
7
were not “in support of a contingency operation” to qualify him for additional
military leave , we reverse the administrative judge’s grant of corrective action.
The agency’s challenge to the administrative judge’s grant of differential pay
exceeds the scope of the remand.
¶14 Finally, o n review , as it did on appeal, the agency challenges the
administrative judge’s prior initial decision grant ing the appellant corrective
action concerning differential pay. PFR File, Tab 1 at 5, 8 -13, 15 -18; M -1 AF,
Tab 12 at 8 -12, 14 -16. The administrative judge denied the challenge, finding the
grant to be final. RID at 3, 5 -6. The administrative judge’s denial was
appropri ate because the challenge exceeded the scope of the Federal Circuit’s
remand, which was limited to the issue of additional military leave. Colicelli ,
No. 2020 -2048, 2021 WL 6112979 at 2-3 & n.**; see, e.g. , Zelenka v. Office of
Personnel Management , 110 M.S.P.R. 205, ¶ 15 n.3 (2008) (refusing to address
an appellant’s argument that exceeded the scope of the issues to be address ed on
remand), rev’d on other grounds , 361 F. App’x 138 (Fed. Cir. 2010); Umshler v.
Department of the Interior , 55 M.S.P.R. 593 , 597 (1992) (finding that an
administrative judge properly limited the scope of remand proceedings consistent
with the Federal Circuit’s remand order), aff’d, 6 F.3d 788 (Fed. Cir. 1993)
(Table) ; 5 C.F.R. § 1201.113 . The agency’s arguments afford no basis to disturb
this denial on review.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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 t he initial decision in this matter, the Board may have updated
the notice 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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
9
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
10
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
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 t o file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y will accept representation in a given case.
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactiv e 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COLICELLI_MARCUS_DC_4324_19_0769_M_1_FINAL_ORDER_2061710.pdf | 2023-08-22 | null | DC-4324 | NP |
2,772 | https://www.mspb.gov/decisions/nonprecedential/HART_JEFF_A_SF_0752_20_0560_I_3_FINAL_ORDER_2061718.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFF A. HART,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -20-0560 -I-3
DATE: August 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff A. Hart , Lakeside, California, pro se.
Jere Diersing , Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
For the reasons set forth below, we DISMISS the appeal as settled.
¶2 After the filing of the petition for review, the agency submitted a settlement
agreement signed by an agency attorney on July 26, 2023, an agency manager on
July 27, 2023, and the appellant on July 29, 2023. The document provides,
among other things, for the withdrawal of the appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
¶3 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 th e 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 ).
¶4 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. Petition for Review File, Tab 3 . Accordingly, we
find that dismissing the appeal wit h prejudice to refiling (i.e., the parties
normally may not refile this appeal) 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 th e record for enforcement
purposes.
¶5 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 PARTIE S 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 e nforcement 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).
3
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C . § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirem ents. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calend ar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer an d to waiver of any
5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no c hallenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial revie w 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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HART_JEFF_A_SF_0752_20_0560_I_3_FINAL_ORDER_2061718.pdf | 2023-08-22 | null | SF-0752 | NP |
2,773 | https://www.mspb.gov/decisions/nonprecedential/RIVERA_SANTIANO_SF_0752_20_0711_I_2_FINAL_ORDER_2061227.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SANTIANO RIVERA,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
SF-0752 -20-0711 -I-2
DATE: August 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lesa L. Donnelly , Anderson, California, for the appellant.
Rachel Trafican , Esquire , and Marcus Mitchell , Esquire, Albuquerque,
New Mexico, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action . For the reasons discussed below, we
GRANT the appellant’s petition for review , REVERSE the initial decision , and
DO NOT SUSTAIN 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 Opinio n and 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
¶2 The appellant was a GS -09 Natural Resource Specialist with the agency’s
San Bernardino National Forest. Rivera v. Department of Agriculture , MSPB
Docket No. SF -0752 -20-0711 -I-1, Initial Appeal File (IAF), Tab 7 at 14 -15. On
January 6, 2020 , the agency proposed to remove him based on charges of conduct
unbecoming and lack of candor. Id. at 37 -39. The proposal stemmed from the
appellant’s arrest by a county sheriff’s office and resulting incarceration between
September 29 and 30, 2019 , while on detail to the position of GS -11 Realty
Specialist at the agency’s Mt. Hood National Forest. Id. at 37, 39 -40; Rivera v.
Department of Agriculture , MSPB Docket No. SF -0752 -20-0711 -I-2, Appeal File
(I-2 AF), Tab 3 at 41. The agen cy alleged that the appellant’s conduct during his
September 29, 2019 arrest was unbecoming because he pounded his head on a
plastic window inside the patrol car, yelled, and accused the officers , without
evidence, of arresting him and targeting him based on his race (Hispanic). IAF,
Tab 1 at 8, Tab 7 at 28 , 37. The agency also alleged his conduct was unbecoming
because, following his incarceration, on October 11, 2019, the appellant
submitted a timecard wherein “[he] coded Sick Leave (62) for [his absenc e on]
September 30, 2019,” a date on which he was incarcerated. IAF, Tab 7 at 37 .
¶3 Subsequently, the appellant admitted that the off -duty traffic accident he
reported to his detail supervisor as the reason for his September 30th absence did
not happen. Id. at 71 -72. Based on that admission, the agency alleged the
appellant lacked candor when he told his detail supervisor that he was absent on
September 30, 2019 , due to his falsely claimed accident. Id. at 37 . The proposal
set forth aggravating factors, such as the appellant’s prior disciplinary record. Id.
at 41 -44. It also listed a number of mitigating factors. Id. Among the factors the
proposing official listed as mitigating was that the appellant and his wife
“recently lost an unborn child.” Id. at 44.
¶4 The appellant responded, both orally and in writing . Id. at 23 -31. He
argued that the penalty of removal was too severe because , as relevant here , his
3
behavior was affected by his and his wife’s grief at the loss of their baby 1 week
before he le ft for his detail at Mt. Hood . Id. at 28 -31. The deciding official
issued a removal decision , effective February 5, 2020, sustaining the agency’s
charge and removal penalty. Id. at 15 -17. Attached to the removal decision was
a “Douglas Factors Work She et” filled out by the deciding official, setting forth
various aggravating and mitigating factors . Id. at 15-22. She acknowledged on
the worksheet that the appellant and his wife’s “recent loss of their unborn child”
was a mitigating factor but found it did not “outweigh or negate the seriousness
of the misconduct.” Id. at 22.
¶5 The appellant filed this appeal to the Board, arguing that the agency did not
prove that the actions at issue in the conduct unbecoming charge amounted to
misconduct, that there wa s a nexus between this off -duty misconduct and the
efficiency of the service, and that the penalty of removal was reasonable. IAF,
Tab 1 at 4, 6; I -2 AF, Tab 6 at 5 -6, 9-10. He also raised the affirmative defenses
of race discrimination and reprisal for prior equal employment opportunity (EEO)
activity. IAF, Tab 1 at 6 ; I-2 AF, Tab 6 at 10 -11, Tab 8 at 3 -5. In his closing
argument, he further alleged , based in part on the deciding official’s hearing
testimony, that the agency violated his due process ri ghts. I-2 AF, Tab 13,
Hearing Recording, Day 2 (HR 2) (the appellant’s closing argument) .
¶6 The administrative judge issued an initial decision sustaining the
specifications and charges related to the appellant’s removal. I-2 AF , Tab 15,
Initial Decision (ID) at 3-19. The administrative judge also determined that the
agency established a nexus between the charged misconduct and the efficiency of
the service and that the penalty of removal was reasonable. ID at 28 -32. Finally,
the administrative judge fo und that the appellant failed to prove his affirmative
defenses. ID at 22 -28. Consequently, the administrative judge affirmed the
removal. ID at 1, 32.
¶7 The appellant has filed a petition for review . Petition for Review (PFR)
File, Tab 1. He argues that the agency violated his due process rights and
4
committed procedural error. Id. at 4-8. He also argues the administrative judge
improperly limited the amount of time he had to present his closing argument. Id.
at 7. The agency has responded. PFR F ile, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The parties do not challenge on review the administrative judge ’s
determination s that the agency proved its charges by preponderant evidence , a
nexus exist ed between the appellant’s actions and the efficiency o f the service,
and the penalty of removal was reasonable. ID at 3-19, 28-32. They also do not
dispute his finding that the appellant did not prove that his race or EEO activity
was a motivating factor in the agency’s decision to remove him. ID at 22 -28.
Rather, the appellant’s arguments on review are limited to claims that the agency
violated his due process rights and committed procedural error and that the
administrative judge erred in limiting his closing argumen t. PFR File, Tab 1
at 4-8. Because , as discussed below, we agree with the appellant that the agency
violated his due process rights by considering his “poor judgment” following the
death of his unborn child as an aggravating factor without providing notice and an
opportunity to respond, we must reverse his removal . In light of this finding, we
find it unnecessary to address h is other arguments on review .
The agency’s removal process violated the appellant’s due process rights.
¶9 The essential requirements of procedural due process are prior notice of the
charges and evidence against the employee and a meaningful opportunity to
respond t o those charges and evidence . Cleveland Board of Education v.
Loudermill , 470 U.S. 532 , 546 (1985). The appellant argued below and reasserts
on review that the agency violated h is due process rights when , as relevant here,
the deciding official considered information not included in the notice of
proposed removal. PFR File, Tab 1 at 4 -6; HR 2 (the appellant’s closing
argument) . Pursuant to Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 -80
(Fed. Cir. 2011), and Stone v. Federal Deposit Insurance Corporation , 179 F.3d
5
1368 , 1376 -77 (Fed. Cir. 1999), a deciding official violates an employee’s due
process rights when she relies upon new and material ex parte information as a
basis for her decision on the merits of a proposed charge or the penalty to be
imposed. Mathis v. Department of State , 122 M.S.P.R. 507, ¶ 6 (2015).
¶10 In Stone , the U.S. Court of Appeals for the Federal Circuit identified the
following factors as useful in determining whether , under the facts of a specific
case, ex parte information is new and material: (1) whether the ex parte
communication introduces cumulative, as o pposed to new, information;
(2) whether the employee knew of the information and had an opportunity to
respond; and (3) whether the communication was “of the type likely to result in
undue pressure upon the deciding official to rule in a particular manner. ” Stone ,
179 F.3d at 1377. Ultimately, the Board’s inquiry in deciding whether an
employee’s due process rights have been violated is “whether the ex parte
communication is so substantial and so likely to cause pr ejudice that no employee
can fairly be required to be subjected to a deprivation of property under such
circumstances.” Id. (italics omitted) ; Mathis , 122 M.S.P.R. 507 , ¶ 7.
¶11 On review, the appellant asserts the agency did not disclose until the
hearing that, in deciding on the penalty of removal, the deciding official relied on
her conclusion that “the [a]ppellant used ‘poor judgment’ when he took the
Mt. Hood detail so soon after his baby died .” PFR File, Tab 1 at 6. The appellant
briefly raised th is alleged due process violation in his closing argument; however,
the administrative judge did not address it in the initial decision. HR 2 (the
appellant’s closing argument). Therefore, we do so here, finding that the agency
violated the appellant’s due process rights in considering the appellant’s “poor
decision” in taking the detail.
¶12 Regarding the first Stone factor, the Board has explained that a deciding
official does not violate an employee’s due process rights when she considers
issues raised by an employee in his response to the proposed adverse action and
then rejects those arguments in reaching a decisi on. Mathis , 122 M.S.P.R. 507 ,
6
¶ 9; Grimes v. Department of Justice , 122 M.S.P.R. 36 , ¶ 13 (2014); see 5 C.F.R.
§ 752.404 (g)(1) (stating that, in rendering a decision on a proposed adve rse
action, the agency will consider the reasons specified in the notice and any
answer of the employee or his representative, or both, made to a designated
official). In so holding, the Board reasoned that an employee is not entitled to
know the particul ar weight the deciding official will attach to his arguments
raised in response to the proposed action. Mathis , 122 M.S.P.R. 507, ¶ 9.
Although the appellant raised the issue of the death of his unborn child in
response to the proposed removal, we find, under the circumstances here, the use
of this unfortunate event as an aggravating factor was indeed new information,
rather than a d etermination by the deciding official as to the weight to give this
factor. IAF, Tab 7 at 28 -31.
¶13 Instead, we find the situation here similar to one in which an agency obtains
ex parte information from a witness after the proposal notice was issued . Such
information may be considered new and material if it constitutes a significant
departure from evidence already in the record and the deciding official considers
it in reaching a decision. Mathis , 122 M.S.P.R. 507 , ¶ 11 (citing Young v.
Department of Housing and Urban Development , 706 F.3d 1372 , 1375 -78 (Fed.
Cir. 2013)). In Young , the court held that the agency violated an appellant’s due
process rights when the deciding o fficial relied on information she obtained from
an individual the appellant had offered as a supporting witness that caused the
deciding official to doubt the veracity of the witness. 706 F.3d at 1374-78. In
finding the information was new, rather than c umulative, the court observed that
the deciding official described the information she obtained from the witness as a
“huge” departure from prior statements. Id. at 1376 -77.
¶14 Here, t he appellant briefly explained how the loss of h is and his wife’s
unborn child affected his behavior in his written reply to the instant proposed
removal. IAF, Tab 7 at 28, 30. During the hearing, the deciding official testified
that in reaching her decision, she considered the appellant’s “instances of poor
7
judgment” as an aggravating factor before describing, amongst other things, his
decision to leave for a detail 1 week after the death of his unborn child. IAF,
Tab 10, Hearing Recording, Day 1 (testimony of the deciding official). The
appellant cou ld not reasonably anticipate that the loss of his unborn child would
be used as an aggravating factor to support his removal. The proposal notice
identified that he “and his wife recently lost an unborn child” as a mitigating
factor. IAF, Tab 7 at 44. T he deciding official also indicated on her “Douglas
Factors Work Sheet” that she considered the appellant’s loss as a mitigating
factor in assessing the appellant’s removal. IAF, Tab 7 at 21 -22. As such , the
appellant could not have known that he should respond to this event as an
aggravating factor. Therefore , we find the deciding official’s consideration of his
“poor judgment” in connection with the death of his child constitutes new and
material information under the first Stone factor.2
¶15 Regarding t he second Stone factor, whether the employee knew of the
information and had a chance to respond to it, the Federal Circuit has found that
ex parte information considered after an appellant responded to the deciding
official and before she rendered h er decision “more than satisfie[d] the second
Stone factor considering that [the appellant] neither learned of the ex parte
communication, nor had an opportunity to respond to it before the deciding
official.” Young , 706 F.3d at 1377 (italics omitted) . Here, t he agency did not
reference the appellant’s “poor judgment” in beginning his detail in the notice of
proposed removal. IAF, Tab 7 at 37 -44. Thus, h is first opportunity to respond to
this information was at the hearing. PFR File, Tab 1 at 6, Tab 3 at 11 -12.
¶16 The agency’s reliance on this factor in imposing his removal without
providing him notice and an opportunity to respond cannot fairly be deemed
2 To the extent that the agency argues in its response to the petition for review that his
poor judgment was at issue in connection with the proposed removal, we are not
persuaded. PFR File, Tab 3 at 11 -12. The proposing official referenced the appellant’s
poor judgment only as it concerned the charged conduct , not in connection with the
death of his child or his decision to begin the detail . IAF, Tab 7 at 40.
8
cumulative or immaterial to the deciding official’s decision. See Stone , 179 F.3d
at 1376 -77. We recognize that the deciding official testified that she considered
other instances of the appellant’s “poor judgment” in making her removal
decision. HR 2 (testimony of the deciding official). Such instances included the
appellant’s decision, while on detail, to go drinking with his wife and then
arguing with her immediately preceding his arrest on September 29, 2019. Id.
These matters were referenced in the materials underlying the appellant’s
removal. IAF, Tab 7 at 49 -51, 58. However, the decision to take a detail
following the death of a child is a private one that cannot be compared to
engaging in public behavior resulting in arrest. Further, t he agency’s specific use
of the death of the appellant’s child as mitigating in the proposed removal
supports the conclusion that these other instances of alleged poor judgment are
not comparable . Id. at 44. Thus, the agency violated the appellant’s due process
rights by denying him notice of the specific information considered and an
opportunity to respond. See Solis v. Department of Justice , 117 M.S.P.R. 458 ,
¶¶ 4, 9 -10 (2012) (concluding an agency violated an appellant’s due process
rights by d enying him notice that his possible Giglio impa irment was considered
to be an aggravating factor).
¶17 Regarding the third Stone factor, there is no evidence in the record that the
information resulted in undue pressure on the deciding official to remove the
appellant. Nonetheless, our reviewing court has emphasized that whether the ex
parte communication was of the type likely to result in undue pressure “is only
one . . . factor[] and is not the ultimate inquiry. ” Ward , 634 F.3d at 1280 n.2.
Specifically, the court recognized that “the lack of such undue pressure may be
less relevant to determining whe ther the ex parte communications deprived the
employee of due process where . . . the [d]eciding [o]fficial admits that the ex
parte communica tions influenced [her] penalty determination.” Id. Therefore,
while the appellant has not pointed to evidence of undue pressure, the deciding
9
official’s testimony is clear evidence of the materiality of the appellant’s “poor
judgment ” in her removal dete rmination .
¶18 Consequently, because the agency violated the appellant’s due process
rights, the appellant’s removal must be reversed, and he must be afforded a “new
constitutionally correct removal procedure.” Ward , 634 F.3d at 1280 . Based on
our disposition, we decline to address the appellant ’s other arguments on review.
ORDER
¶19 We ORDER the agency to cancel the appellant’s removal and to restore h im
effective February 5, 2020 . See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶20 We also ORDER the agency to pa y 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 fa ith 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.
¶21 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. § 1 201.181 (b).
¶22 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
10
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 communicat ions with the agency. 5 C.F.R. § 1201.182 (a).
¶23 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Fina nce 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 necess ary 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AN D 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 the se 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 APPE AL 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 w ith which to file. 5 U.S.C. § 7703 (b).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possib le choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of iss uance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
12
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discriminatio n claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
13
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decisi on. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
Washing ton, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 t he
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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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 Federa l Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visi t our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 noti fied 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 ea rnings 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 l ater 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 fr om 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 CEN TER CHECKLIST FOR BA CK 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 s ubmit 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 Sev erance 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 Rest oration 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. | RIVERA_SANTIANO_SF_0752_20_0711_I_2_FINAL_ORDER_2061227.pdf | 2023-08-21 | null | SF-0752 | NP |
2,774 | https://www.mspb.gov/decisions/nonprecedential/POLLOCK_JAMES_SF_0714_20_0619_I_1_FINAL_ORDER_2061341.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES POLLOCK,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0714 -20-0619 -I-1
DATE: August 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Pollock , Marysville, Washington, pro se.
Holly A. Parr , Esquire, and Stephen Funderburk , Esquire, Seattle,
Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
For the reasons set forth below, we DISMISS the appeal as settled.
¶2 After the appellant filed his petition for review, the agency submitted a
document titled “ SETTLEMENT, ” signed and dated by the appellant on June 28,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
2023 , and by the agency on June 29, 2023. Petition for Review File, Tab 6. The
document provides, among other things, for the withdrawal of the present appeal .
Id. at 4.
¶3 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 w hether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017).
¶4 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. 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. 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 pur poses.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113 (c).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the a ppellant 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).
3
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your clai ms determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Meri t
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If yo u wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of you r case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your ca se, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit , which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 canno t 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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discriminatio n claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decisi on. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
Washin gton, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to th e Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 Feder al Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may vis it our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 R eview Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other c ircuit court 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | POLLOCK_JAMES_SF_0714_20_0619_I_1_FINAL_ORDER_2061341.pdf | 2023-08-21 | null | SF-0714 | NP |
2,775 | https://www.mspb.gov/decisions/nonprecedential/SIX_CYNTHIA_AT_0752_22_0344_I_1_FINAL_ORDER_2061380.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYNTHIA SIX,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
AT-0752 -22-0344 -I-1
DATE: August 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darrin W. Gibbons , Esquire, Richmond, Virginia, for the appellant.
Mark Claytor , Esquire, Fort Lee, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 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 on due process grounds . For the reasons discussed below, we DISMISS
the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
¶2 On August 2, 2023, w hile the agency’s petit ion and the appellant’s cross
petition were still pending before the Board , the appellant submitted a copy of a
settlement agreement, signed and dated by the parties on August 1 and 2, 2023.
Petition for Review File, Tab 11. The agreement provides for the withdrawal of
the appeal in exchange for certain promises made by the agency, and the parties
have further agreed for the agreement to be entered into the record for
enforcement purposes. Id.
¶3 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, th e 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).
¶4 Here, we find that the parties have entered into the settlement agreement,
understand it s terms, and intend for the agreement to be entered into the record
for enforcement by the Board. We further find that the agreement is lawful on its
face and that the p arties freely en tered into it. Accordingly, we find it
appropriate to dismiss the appeal with prejudice to refiling (i.e., the parties
normally may not refile this appeal), and enter the agreement into the record for
enforcement purposes.2
2 In light of this disposition, we deny the appellant’s motion for sanctions as moot.
3
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, se ction 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR ENFORCEME NT 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 a ppeal. 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 RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, t he nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available a ppeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within thei r
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result i n the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals f or the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 d iscrimination. If so, you may obtain
5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calend ar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer an d to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial rev iew 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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
U.S. Court of Appeal s
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circ uit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SIX_CYNTHIA_AT_0752_22_0344_I_1_FINAL_ORDER_2061380.pdf | 2023-08-21 | null | AT-0752 | NP |
2,776 | https://www.mspb.gov/decisions/nonprecedential/HAUPT_MATHEW_DE_0752_21_0040_I_1_FINAL_ORDER_2061389.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MATHEW HAUPT,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DE-0752 -21-0040 -I-1
DATE: August 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aaron Gragg , Fort Huachuca, Arizona, for the appellant.
Brandon Roby , Esquire, F ort Meade, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s indefinite suspension . 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
interpre tation 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 Feder al Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1 201.115 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 At all times relevant to this appeal, the appellant held the position of
Operations Research Analyst with the Department of Defense (DOD), Defense
Information Systems Agency (DISA). Initial Appeal File (IAF), Tab 1 at 1. The
position required tha t he obtain and maintain a security clearance. E.g., IAF,
Tab 28 at 5, Tab 29 at 14, 19, 22.
¶3 In July 2020, the appellant plead guilty to a drug -related felony in an
Arizona court —attempted possession of mushrooms. IAF, Tab 28 at 9, Tab 29
at 33. Soon thereafter , DISA proposed the suspension of his access to classified
information. IAF, Tab 28 at 9, Tab 29 at 33 -34. After a period in which the
appellant submitted a response, DISA issued an August 2020 decision to suspend
his access to classified infor mation and occupancy of a sensitive position. IAF,
Tab 28 at 9, Tab 29 at 35 -36.
¶4 Days later, the agency proposed the appellant’s indefinite suspension from
service, “based on the suspension of [his] access to classified information.” IAF,
Tab 29 at 37 -38. The accompanying specification stated that “[a]ll DISA
employees are required to maintain the ability to access classified information as
part of their duties” and “the DISA Security Office . . . suspended your access to
3
classified information pending the final adjudication of your security clearance by
the DOD [Consolidated Adjudications Facility] CAF.” Id. at 37. Following
another response period, the agency issued its decision to indefinitely suspend the
appellant, effective October 2020. IAF, Ta b 28 at 9, Tab 29 at 96 -98.
¶5 The appellant filed the instant appeal to challenge his indefinite suspension.
IAF, Tab 30 at 1. He withdrew his hearing request and requested a decision on
the written record. IAF, Tabs 32 -33. The administrative judge rever sed the
action, finding that the agency failed to meet its burden of proof. IAF, Tab 37,
Initial Decision (ID) at 4 -12. He also considered but found no merit to the
appellant’s harmful error and due process claims. ID at 12 -16.
¶6 The agency has filed a pe tition for review. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response and the agency has replied. PFR File,
Tabs 3, 5.2
The administrative judge properly found that the agency failed to meet its burden.
¶7 An indefinite suspension la sting 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 his access to classified information has
been suspended and he needs such access to perform his job. Palafox ,
124 M.S.P.R. 54 , ¶ 8. In such a case, the Board lacks the authority to review the
2 After the parties’ petition, response, and reply, the appellant filed several additional
pleadings, PFR File, Tabs 6, 7, 9, 12 -13, 15, 17, to which the agency responded, PFR
File, Tabs 11, 14, 16. The appellant’s additional pleadings appoint a representative and
request that we either dismiss the agency’s petition for failing to meet its interim relief
obligations or enforce the administrative judge’s interim relief order. E.g., IAF, Tab 7
at 4-5, Tab 9 at 4 -5, Tab 12 at 7 -9, Tab 17 at 7. Because we find no reason to grant the
agency’s petition for review, the timeliness and merits of the appellant’s arguments
about interim relief are hereby rendered moot. See, e.g. , Elder v. Department of the Ai r
Force , 124 M.S.P.R. 12 , ¶ 20 (2016) (finding that any dispute over the agency’s
compliance with the interim relief order was moot upon issuance of the Board’s final
decision finding that the agency’s petition did not meet the criteria for review).
4
merits of the decision to suspend access. Palafox , 124 M.S.P.R. 54 , ¶ 8.
However, the Board retains the authority to review whether (1) the appellant’s
position required access to classified information; (2) the appellant’s access to
class ified information was suspended; and (3) the appellant was provided with the
procedural protections specified in 5 U.S.C. § 7513 .3 Palafox , 124 M.S.P.R. 54 ,
¶ 8. The Board also has the authority under 5 U.S.C. § 7701 (c)(2)(A) to review
whether the agency provided the procedural protections required under its own
regulations. Palafox , 124 M.S.P.R . 54 , ¶ 8. Additionally, because a tenured
Federal employee has a property interest in continued employment, the Board
may consider whether the agency provided minimum due process in taking the
indefinite suspension action. Palafox , 124 M.S.P.R. 54 , ¶ 8.
¶8 In this case, the only element in dispute on review is the first —whether the
appellant’s position required the “access to class ified information” the agency
relied upon for its indefinite suspension. Although t he appellant conceded that
his position requires a security clearance , e.g., IAF, Tab 28 at 5, the appellant
indicated that his position does not require “access to classif ied information.”
IAF, Tab 28 at 5, Tab 31 at 4, Tab 35 at 4 -5. Among other things, he explained
that “access to classified information” was not a condition listed in his hiring or
onboarding documents. IAF, Tab 28 at 5, Tab 31 at 4, Tab 35 at 5. The a ppellant
also indicated that he was “functioning in [his] position perfectly well [], even
teleworking from home over an unclassified network[,] as were the majority of
3 In some other cases, the Board has utilized a similar standard that refers to the
employee’s security clearance, rather than their access to classified information. See
Rogers v. Department of Defense , 122 M.S.P.R. 671 , ¶ 5 (2015) (indicating that the
Board will generally only review whether: (1) the employee’s position required a
security clearance; (2) the clearance was denied, revoked, or suspended; and (3) the
employee was provided with the procedural protections specified in 5 U.S.C. § 7313 );
Grimes v. Department of Justice , 122 M.S.P.R. 36 , ¶ 7 (2014) (same). Because the
indefinite suspension action before us was based on the appellant’s suspended access to
classified information, rather than a suspended security clearance, the Palafox standard
is the more appropriate one.
5
DISA Personnel,” without access to classified information, before the agency
acted to s uspend his access to classified information. IAF, Tab 35 at 4.
According to the appellant, he lacked the means to access classified information
before the suspension of his access to classified information because his
“SIPRNet” token had “long expired” f rom a lack of use. IAF, Tab 31 at 4, Tab 35
at 4.
¶9 After considering the parties’ competing arguments and evidence on this
point, the administrative judge found that the agency’s charge failed because
although the appellant’s position required a security c learance, the agency did not
prove that his position required a favorable “access” determination. ID at 4 -12.
In doing so, he recognized and in part relied upon the distinction between the
appellant’s “eligibility for access to classified information,” w hich would be
decided by CAF, and the appellant’s “access to classified information,” which
was decided by DISA. Id.
CAF decision
¶10 On review, the agency has directed us to a January 2021 letter, where CAF
indicated that it was preliminarily revoking the ap pellant’s eligibility for access
to classified information. PFR File, Tab 1 at 5 -6 (referencing IAF, Tab 29
at 106-11). According to the agency, the administrative judge “completely
ignored” that fact in the initial decision. Id. The agency seems to im ply that we
should uphold the appellant’s November 2020 indefinite suspension because his
eligibility for access to classified information was preliminarily revoked in
January 2021. Id.
¶11 We disagree . First, the administrative judge did not ignore this evi dence;
he cited and discussed the CAF letter while considering the distinction between
the appellant’s eligibility for access to classified information and his access to
classified information. ID at 6 n.3. Second, the Board is required to adjudicate
an adverse action solely on the grounds invoked by the agency, which , in this
case, concerned DISA’s August 2020 suspension of the appellant’s “access to
6
classified information,” not CAF’s January 2021 decision as to the appellant’s
“eligibility for access to classified information.” IAF, Tab 29 at 96, 106; see
Gamboa v. Department of the Air Force , 120 M.S.P.R. 594 , ¶ 7 (2014)
(recognizing that the Board is required to adjudicate an adverse action solely on
the grounds invoked by the agency and may not substitute what it considers to be
a more appropriate charge). For the same reason, the agency’s related arguments
about the ad ministrative judge construing its charge too narrowly by focusing on
the “access” requirement are unavailing. PFR File, Tab 1 at 19 -20.
Proposing and deciding officials’ sworn statements
¶12 The agency’s next arguments concern the sworn statements it present ed
from the proposing and deciding officials regarding any “access to classified
information” requirement for his position. PFR File, Tab 1 at 6 -8; IAF, Tab 34
at 5-9. Both indicated that all DISA positions, including the appellant’s, required
a security clearance and access to classified information. IAF, Tab 34 at 5-9.
¶13 The administrative judge did not find these statements persuasive. ID at 6,
10-11. He observed that they both contained some identical language, including
specific references to “DISA Instruction 240 -220-36,” as they asserted all DISA
positions required a current security clearance. ID at 6 & n.3; IAF, Tab 34 at 5 -6.
Yet neither referenced any source as they asserted that the appellant’s position
and all others within DISA required ac cess to classified information. ID at 10-11;
IAF, Tab 34 at 5 -7. The administrative judge next noted that the declarations
were post -hoc and specifically prepared for adjudication of this appeal. ID at 11;
IAF, Tab 34 at 5 -9. Finally, he found that the probative value of the declarations
was diminished by an inaccuracy they both contained —the officials’ reference to
“DISA Instruction 240 -220-36” was erroneous. ID at 6, n.4 & 11; compare IAF,
Tab 34 at 5 -7 (proposing and deciding officials’ sworn statem ents, referencing
“DISA Instruction 240 -220-36”), with IAF, Tab 29 at 22 -27 (agency document
titled “DISA Instruction 240 -110-36”), Tab 36 at 4 (agency representative’s
unsworn assertion that the references to 240 -220-36, rather than 240 -110-36, were
7
mista ken). Also of note, the administrative judge indicated that he was not
concerned about the officials’ making their sworn statements in bad faith; he
explained that they may sincerely but mistakenly believe that the appellant’s
position required access to classified information. ID at 12 n.8.
¶14 On review, the agency challenges the administrative judge’s findings about
these sworn statements. PFR File, Tab 1 at 6 -8. As further detailed below, we do
not find the agency’s arguments persuasive and we instead agree with the
administrative judge’s skepticism of the statements upon which the agency relies .
¶15 The agency first asserts that , although the administrative judge
characterized the proposing and deciding officials’ sworn statements as post -hoc
and prepared specifically for this litigation, that was the inevitable result of the
appellant withdrawing his request for a hearing; the same officials would have
testified if the hearing had occurred. PFR File, Tab 1 at 6. We acknowledge and
appreciate the practic al impact of the appellant withdrawing his request for
hearing. But it was the agency’s burden to prove its charge. See, e.g. , Rogers v.
Department of Defense , 122 M.S.P.R. 671 , ¶¶ 2, 6 (2015) (finding that an agency
proved its charge, which was based on the suspension of access to classified
information); Gamboa , 120 M.S.P.R. 594 , ¶ 11 (finding that the agency did not
prove its charge, which was based on the failure to maintain a security clearance
as a condition of employment). Here, the agency failed t o present any persuasive
evidence that predated this litigation to support its allegation that the appellant’s
position required access to classified information. And the evidence specifically
prepared for this litigation contains several shortcomings abo ut the disputed
issue, despite being specifically created to address the matter. Compare IAF,
Tab 1 at 5 (appellant raising this issue in his initial pleading), with IAF, Tab 34
at 5-9 (agency’s sworn statements, made months later, for purposes of this
litigation).
¶16 The agency next argues that the sworn statements about the appellant’s
position requiring access to classified information are bolstered by the same
8
officials’ similar assertions within their proposal and decision letters. PFR File,
Tab 1 at 7 (referencing IAF, Tab 29 at 37, 96). But the proposal and decision
letters are hardly persuasive evidence of allegations contained within. E.g.,
Gamboa , 120 M.S.P.R. 594 , ¶ 9 (finding that documents created as part of
adjudicatory processes, years after an employee was appointed, did not constitute
preponderant evidence that the agency imposed a security clearance requirement
at th e time of appointment or any other time before the agency took action to
revoke the clearance and remove him). Plus, we agree with the administrative
judge’s explanation that these officials may very well have a good faith but
mistaken belief that all DIS A positions require access to classified information.
We therefore find that these officials ’ statements that the appellant’s position
required access to classified information on two occasions, rather than one, is of
limited value.
¶17 Next, the agency arg ues that the proposing and deciding officials’ assertion
about access to classified information is consistent with DISA Instruction
240-110-36 and its indication that all DISA positions are at least “noncritical
sensitive” and require at least a “secret” l evel security clearance. PFR File, Tab 1
at 7 (referencing IAF, Tab 29 at 22 -27). However, the agency’s implication that
these concepts are altogether indistinguishable is unavailing. See Gamboa ,
120 M.S.P.R. 594 , ¶ 7 (recognizing that not all sensitive positions require a
security clearance or entail access to classified information).
¶18 The agency also argues that the sworn statements were made by officials
who were most qualified to know about the appellant’s position and its
requirements —the proposing official, who was the appellant’s first -line
supervisor, and the deciding official, wh o was the person specifically authorized
to manage the personnel security program. PFR File, Tab 1 at 7 -8. We recognize
and appreciate the nature of these individuals’ positions. But both inaccurately
described the underpinnings of the appellant’s secur ity clearance requirement.
IAF, Tab 34 at 5 -6; supra ¶ 15. And neither could definitively describe the level
9
of clearance the appellant required. They instead described their “understanding”
as to that issue, which further calls into question the degree to which they
considered or knew about the requirements of the appellant’s position. Compare
IAF, Tab 34 at 5 -6 (agency’s sworn statements about the level of clearance
required), with IAF, Tab 29 at 14, 19 (appellant’s position description, explicitly
describing the level of clearance required). Also of note, neither sworn statement
contains any particularized explanation about the appellant’s position or duties in
terms of access to classified information. They instead used similar language,
indicating that “all DISA employees are required to maintain access to classified
information as part of their duties” and “there are no positions at the Agency for
which the maintenance of access to classified information is not required.” IAF,
Tab 34 at 5 -7. The absence of any further explanation is especially glaring, given
the appellant’s repeated assertions that his position did not require access to
classified information, and he had no means to access classified information, even
before DISA officially suspe nded his access. E.g., IAF, Tab 31 at 4, Tab 35
at 4-5.
¶19 For all these reasons, we are unmoved by the agency’s arguments about the
persuasiveness of the proposing and deciding officials’ sworn statements.
Appellant’s nondisclosure agreement
¶20 In another argu ment, the agency asserts that the administrative judge
ignored another piece of evidence regarding its burden of proving that the
appellant’s position required access to classified information —a “Classified
Information Nondisclosure Agreement” signed by th e appellant. PFR File, Tab 1
at 8, 14 (referencing IAF, Tab 29 at 128 -29). However, an administrative judge’s
failure to mention all the evidence of record does not mean that he did not
consider it in reaching his decision. E.g., Marques v. Department o f Health and
Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d , 776 F.2d 1062 (Fed. Cir.
1985) (Table). More importantly, the agency has overstated the significance of
this evidence. The agency points us to a provision which states, “I hereby accept
10
the obligations contained in this Agreement in consideration of my being granted
access to classified information.” PFR File, Tab 1 at 8; IAF, Tab 29 at 128. The
agency suggests that this provision shows that access to classified information
was a requirement of the appellant’s position. PFR File, Tab 1 at 8; IAF, Tab 29
at 128. We disagree. The referenced provision and remainder of the agreement
show that the appellant agreed to certain conditions before the agency would give
him access to classified information; it does not show that his position required
that acce ss to classified information.
¶21 To conclude, the appellant consistently asserted that although his position
did require a security clearance, it did not require the “access to classified
information” the agency cited to indefinitely suspend him from service. The
agency argued otherwise. However, the little evidence the agency relied upon to
support its stance is not persuasive. Accordingly, we agree with the
administrative judge’s determination that the agency failed to satisfy its burden of
proof.
We will not consider the agency’s new argument that “access to classified
information” was a prerequisite to the “security clearance” required by the
appellant’s position.
¶22 Within its petition for review, the agency has also included another
argument that is dist inct from those already discussed. It concerns the relation
between the appellant’s “security clearance,” his “eligibility for access to
classified information,” and his “access to classified information.” PFR File,
Tab 1 at 11 -14. The agency asserts th at the appellant’s position requires a
security clearance that, in turn, requires both eligibility for access to classified
information and access to classified information. Id. Put another way, the
agency is arguing that, without the “access to classifi ed information” that was
11
suspended and relied upon for his indefinite suspension, the appellant is not
holding the “security clearance” his position required.4 Id.
¶23 The Board will not ordinarily consider an argument raised for the first time
in a petitio n 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). With that in mind, we
find that this argument about the appellant’s access to classified information
being a requirement of his security clearance was not one that the agency clearly
articulated before the administrative judge. We will illustrate with a few
examples. First, in its initial arguments, the agency asserted that the “appellant’s
position requires a security clearance which allows him access to classified
information.” IAF, Tab 4 at 7. Th at suggests that the security clearance allows
for access, rather than access being a prerequisite for the security clearance. This
pleading also argued that the appellant’s position requires “a security clearance
and access to classified information,” wh ich suggests that the two are different
requirements, rather than ones in which the former cannot be held or maintained
without the latter. Id. at 12 -13.
¶24 In a subsequent prehearing statement, the agency repeatedly cited evidence
to indicate that the app ellant’s position required a security clearance, but it
summarily stated, without citation or explanation, that the position required “a
security clearance and/or access to classified information.” IAF, Tab 29 at 6.
The agency then submitted the two swor n statements discussed above, but they
are similarly devoid of any indication that “access to classified information” is a
prerequisite for the “security clearance” his position required. IAF, Tab 34
4 This argument directly contradicts another within the agency’s petition. While
discussing the significance of the CAF decision, which was rendered after the appellant
filed this appeal but before the initial decision, the agency stated that “it is true that
appellant had a clearance when h e filed this appeal.” PFR File, Tab 1 at 5 -6. The
agency has not explained this contradiction.
12
at 5-9. We found nothing in the agency’s arguments bel ow to assert or even
suggest that the appellant c ould not maintain his required “ security clearance” if
he lacked “access to classified information.”
¶25 For these reasons, we find that this argument —that “access to classified
information” is functionally equi valent to a “security clearance” for purposes of
this appeal —is a new one that we will not consider for the first time on review.
The agency’s remaining arguments are unavailing.
¶26 The agency has presented a number of other arguments or assertions that do
not neatly fit within one of the categories already addressed. We have considered
each, and will explicitly address a few, but do not find that any require a different
result.
¶27 The agency asserts that the administrative judge’s initial decision in this
appea l is inconsistent with his initial decision in a separate but factually similar
appeal involving a different appellant. PFR File, Tab 1 at 9 -10. Several of the
agency’s other arguments rely on the initial decisions of other administrative
judges. Id. at 15-18. However, the Board is not bound by initial decisions, and
they have no precedential effect, so we will not address these arguments any
further. Special Counsel v. Greiner , 117 M.S.P.R. 117 , ¶ 11 n.5 (2011).
¶28 The agency’s petition also points out that the administrative judge
“independently” relied, in part, on provisions from the DOD manual as he
reversed the agency’s action, eve n though the appellant’s arguments did not. PFR
File, Tab 1 at 10 -11. To the extent that the agency is implying that it was
improper for the administrative judge to consider the agency’s evidence to
determine whether the agency met its burden of proof, w ithout specific prompting
by the pro se appellant, the agency is incorrect.
¶29 In another portion of its petition, the agency states that the question in
dispute in this appeal “is not whether or not the agency has the ability to grant
access or eligibility , but whether the agency has the ability to revoke or suspend
it.” Id. at 11. But that is not the question in dispute. The question in dispute is
13
whether the agency proved the elements of its charge —including proof that the
appellant’s position required access to classified information. Supra ¶ 7.
¶30 The agency has also asserted that this decision and that of the
administrative judge are effectively expanding the Board’s review of cases such
as this, in contravention of binding precedent about the limit ation of our
authority . PFR File, Tab 1 at 19 -20. We disagree. The Board’s authority in
cases such as this is limited. Among other things, the Board may not review the
merits of an underlying security clearance determination, Department of the Navy
v. Ega n, 484 U.S. 518 , 530 -31 (1988), an agency’s “judgment that the position
itself requires the clearance,” Skees v. Department of the Navy , 864 F.2d 1576 ,
1578 ( Fed. Cir. 1989), or an agency’s determination concerning an individual’s
eligibility for a “sensitive” position, Kaplan v. Conyers , 733 F.3d 1148 , 1155
(Fed. Cir. 2013). Here, though, we are simply holding the agency responsible for
proving what it has alleged —that the appellant’s position required “access to
classified information .” This decision does not cons titute a judgment as to the
propriety of any such requirement.
¶31 Finally, we note that the agency’s petition argues that the administrative
judge lacked the authority to reinstate the appellant because of the CAF decision
regarding his eligibility for access to classified information that was issued in
January 2021, whi le this appeal was pending. PFR File, Tab 1 at 25 -27; see
supra ¶ 10. However, in the time that has passed since the agency made that
argument in its petition for review, the appellant has resigned. He did so as part
of a settlement agreement stemming f rom a separate Board appeal that arose out
of a new indefinite suspension the agency imposed after the one at issue in this
appeal. See Haupt v. Department of Defense , MSPB Docket No. DE -0752 -22-
0066 -I-1, Initial Appeal File, Tab 36 at 6, Tab 37. Accordi ngly, the appellant’s
duty status for the period following the CAF decision is moot.
14
ORDER
¶32 We ORDER the agency to CANCEL the appellant’ s indefinite suspension ,
which was effective October 7, 2020. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶33 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 cal culate 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 ORD ER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶34 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).
¶35 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 ful ly 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).
¶36 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
15
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adju stments 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to b e 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 RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the follo wing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding w hich cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
16
filing time limits and requirements. Failure to file within the applica ble time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particul ar forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional i nformation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rule s of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pr o bono representation
for Merit Systems Protection Board appellants before the 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 E EOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discriminatio n. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar da ys after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other se curity. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a reque st 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 deli very or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protec tion
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 allega tions of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for t he Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l 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.ms pb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represen tation 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 noti fied 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 ea rnings 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 l ater 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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 decisi on.
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 incl ude 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 document ation 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 t he 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. | HAUPT_MATHEW_DE_0752_21_0040_I_1_FINAL_ORDER_2061389.pdf | 2023-08-21 | null | DE-0752 | NP |
2,777 | https://www.mspb.gov/decisions/nonprecedential/INDA_FERNANDO_DE_0752_18_0225_I_1_FINAL_ORDER_2060729.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FERNANDO INDA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DE-0752 -18-0225 -I-1
DATE: August 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Victoria Aguilar , Esquire, Greenwood Village, Colorado, for the appellant.
Brian J. Odom , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s indefinite suspension pursuant to the crime situation for
failure to establish reasonable cause to believe that he committed a crime for
which a penalty of imprisonmen t may be imposed . Petition for Review (PFR)
File, Tab 1. 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 inv olved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the agency has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201 .113 (b).
¶2 The appellant asserts in his response to the agency’s petition for review that
the agency failed to comply with the administrative judge’s interim relief order.
PFR File, Tab 3 at 5. Ordinarily, when an appellant challenges the agency’s
certification of compliance with an interim relief order, the Board will issue an
order affording the agency the opportunity to submit evidence of compliance.
5 C.F.R. § 1201.116 (b). If the agency fails to provide evidence of compliance in
response to the order, the Board may, at its discretion, dismiss the agency’s
petition for review. 5 C.F.R. § 1201.116 (e). In thi s case, however, we find that
the agency’s petition does not meet the criteria for review in any event, and the
issuance of our final decision renders moot any dispute concerning the agency’s
compliance with the interim relief order. Ayers v. Department o f the Army ,
123 M.S.P.R. 11 , ¶ 8 (2015). Under these circumstances, it is unnecessary to
issue an order under 5 C.F.R. § 1201.116 (b). Id. If the appellant believes that the
agency is in noncompliance with the Board’s final order, or he seeks an award of
attorney’s fees, he may file a petition for enforcement and/ or request for
attorney’s fees in accordance with the instructions provided below. Id.
3
ORDER
¶3 We ORDER the agency to cancel the appellant’s indefinite suspension and
to restore the appellant effective March 7, 2018 . 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.
¶4 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
Service regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶5 We further ORDER the agency to tell the appellant p romptly 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).
¶6 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 ini tial 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 shou ld include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶7 For agencies whose payroll is administered by either the National Finance
Center of the D epartment 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
4
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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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.), secti ons 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 a ttorney 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the l aw 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 w hich option is most appropriate in any matter.
5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possi ble choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review i n general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of is suance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affe cted by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civ il action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you mu st file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court ‑appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess 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 ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 d amages) 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 Remed y 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 employme nt.
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 sever ance 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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 amou nt 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 emplo yee 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 include d 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. | INDA_FERNANDO_DE_0752_18_0225_I_1_FINAL_ORDER_2060729.pdf | 2023-08-18 | null | DE-0752 | NP |
2,778 | https://www.mspb.gov/decisions/nonprecedential/FREDERICK_DEAN_M_AT_0752_21_0494_I_1_FINAL_ORDER_2060732.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEAN M. FREDERICK,
Appellant,
v.
TENNESSEE VALLEY AUT HORITY,
Agency.
DOCKET NUMBER
AT-0752 -21-0494 -I-1
DATE: August 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marti L. Kaufman , Esquire, Memphis, Tennessee, for the appellant.
Courteney M. Barnes -Anderson , Esquire, and John E. Slater , Esquire,
Knoxville, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s demotion. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains e rroneous
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).
2
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 a ppeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitione r’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). We
also DENY the appellant’s motion to dismiss the agency’s petition for review and
DENY the appellant’s petition for enforcement of the interim relief order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 On April 30, 2021, the agency sent a letter to the appellant proposing his
demotion from his position as Paradise Site Manager, Combined Cycle Plant, for
alleged violations of agency policy . Initial Appeal File (IAF), Ta b 7 at 55.
Specifically, the agency stated that an investigation had substantiated allegations
that the appellant made inappropriate comments and improperly gave gifts to his
subordinate employees . Id. By letter dated June 1, 2021, the agency sustained
the appellant ’s demotion to a “first line leader” position , effective June 21, 2021 .
Id. at 21 -22; IAF, Tab 53, Initial Decision (ID) at 1 n.1 .
¶3 The appellant filed an appeal with the Board. IAF, Tab 1. Although a
hearing was held, the agency elected n ot to present witness testimony or other
documents in support of its charge, instead relying on documents in its agency
file, including a summary of an investigation conducted by the agency . ID at 3 &
n.5; Hearing Record ing. The investigative summary did not include underlying
documents such as sworn or unsworn witness statements or recordings, and it did
3
not include the identity of any witnesses. IAF, Tab 7 at 60 -69. In an initial
decision, the administrative judge reversed the agency’s action , finding that the
agency failed to meet its burden to prove the charges by preponderant evidence .
ID at 3 -9. H e ordered the agency to retroactively restore the appellant to his
position of Paradise Site Manager, Combined Cycle Plant, effective June 21,
2021 , and he ordered the agency to provide interim relief if a petition for review
was filed by either party . ID at 9-11. Consistent with 5 C.F.R. § 1201.116 (a), th e
administrative judge instructed the agency that a petition for review must be
accompanied by a certification that it complied with the interim relief order. ID
at 10 -11.
¶4 The agency has filed a petition for review , the appellant has filed a
response, a nd the agency has filed a reply . Petition for Review (PFR) File,
Tabs 1, 6-7. The appellant has filed a motion to dismiss the agency’s petition for
review , and the agency has filed a response . PFR File, Tabs 3, 5. The appellant
has also filed a petitio n for enforcement , and the agency has filed a response.
PFR File, Tabs 8 -9.
We deny the appellant’ s motion to dismiss the agency’s petition for review and
his motion for enforcement.
¶5 The appellant has requested that the Board dismiss the agency’s petitio n for
review because it failed to include a certification that it had complied with the
interim relief order. PFR File, Tab 3 at 4 -5; see 5 C.F.R. § 1201.116 (e). One day
after the appellant filed his motion to dismiss, the agency filed a pleading
certifying that it had complied with the interim relief order by reinstating the
appellant to a Plant Manager position and paying him back pay . PFR File, Tab 4
at 4. We exercise our discr etion to address the petition for review on the merits
and deny the motion to dismiss. See Thome v. Department of Homeland Security ,
122 M.S.P.R. 315 , ¶ 16 (2015) (explaining that the Board’s authority to dismiss
an agency petition unde r 5 C.F.R. § 1201.116 (e) is discretionary, not mandatory).
4
¶6 The appellant’s petiti on for enforcement is also premised on the agency’s
purported failure to comply with the interim relief order . PFR File, Tab 8. The
Board’s regulations do not allow for a petition for enforcement of an interim
relief order. Bryant v. Department of the A rmy, 2022 MSPB 1 , ¶ 6; see 5 C.F.R .
§ 1201.182 (a) (providing for petitions for enforcement of final Board orders).
The Board has treated a petition for enforcement of an interim relief order as a
motion to dismiss the agency’s petition for review. See Jolivette v. Depart ment of
the Navy , 100 M.S.P.R. 216 , ¶ 5 n.1 (2005). As set forth above , we exercise our
discretion to decide the petition for review on the merits and deny the petition for
enforcement.2
We deny the agency’ s petition for review and affirm the initial decision.
¶7 In its petition for review, the agency asserts that the administrative judge
abused his discretion in disallowing certa in evidence and that he erred in
affording too little weight to the agency’s investigative summary , which it argues
substantiated the charges against the appellant . PFR File, Tab 1 at 9 n.7, 13-24.
The agency has attached to its petition for review the d ocument that it contends
the administrative judge incorrectly declined to consider. Id. at 29 -32.
¶8 We first find that the administrative judge did not abuse his discretion in
denying the agency’s motio n to file additional evidence. Pursuant to t he
adminis trative judge’s order , IAF, Tab 16 at 1, the agency filed its prehearing
submissions on November 29, 2021 , wherein the agency identified two hearing
witnesses and stated that it was not filing additional prehearing exhibits because
it intended to rely on d ocuments already in the record , IAF, Tab 26 at 4 -6. On
April 13, 2022, the agency filed a motion entitled Motion to Amend Agency’s
Initial Response. IAF, Tab 38. In its motion, the agency asserted that it had
recently learned that it inadvertently omitt ed a doc ument from its initial response,
2 If the appellant believes that the agency is not in compliance with this Final Order, he
may file a petition for e nforcement consistent with the procedures set forth in ¶¶ 12 -15.
5
and it requested to add the document to the record. Id. at 4. The appellant
opposed the agency’s motion. IAF, Tab 39. The administrative judge denied the
motion, finding that the deadline for submitting the agen cy file and prehearing
submissions had expired and that the evidence the agency sought to introduce was
not newly discovered. IAF, Tab 45 at 2.
¶9 The Board will not find reversible error in an administrative judge’s
discovery rulings absent an abuse of discretion that prejudiced the appellant’s
substantive rights. See Wagner v. Environmental Protection Agency , 54 M.S.P.R.
447, 452 (1992), aff’d , 996 F.2d 1236 (Fed. Cir. 1993) (Table). The agency has
not established that the administrative judge committed an abuse of discretion in
denying a s untimely its request to file additional evidence. See Defense
Intelligence Agency v. Department of Defense , 122 M.S.P.R. 444 , ¶ 16 (2015)
(finding that the administrative judge did not abuse her discretion in failing to
consider untimely prehearing submissions and closing brief) ; Fritts v. Department
of Homeland Security , 102 M.S.P.R. 265 , ¶ 15 n.2 (2006) (finding no abuse of
discretion when the administrative judge excluded proffered exhibits because they
were untimely submitted after the pr ehearing conference) .
¶10 As to merits , the agency disagrees with the administrative judge’s weighing
of the evidence in the record and argues that he afforded too little weight to its
investigative summary . PFR File, Tab 1 at 13 -24. The Board generally will not
disturb an administrative judge’s conclusions when, as here, the initial decision
reflects that the administrative judge considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility.
See Cros by v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987). The
agency has not provided a basis to disturb the administrative judge ’s factual
findings. To the exte nt the agency argues that the administrative judge
disregarded the investigative summary entirely because it was hearsay, we
disagree. PFR File, Tab 1 at 13 -14. The administrative judge appropriately
6
considered several factors in dete rmining the weight t o afford the agency’s
hearsay evidence, and we agree with his conclusions. ID at 4 -8 (identifying the
factors to be weighed in considering hearsay evidence, pursuant to Borninkhof v.
Department of Justice , 5 M.S.P.R. 77 , 87 (1981), and applying those factors).
¶11 Based on the foregoing, we deny the agency’s petition for review and affirm
the initial decision reversing the appellant’s demotion.
ORDER
¶12 We ORDER the agency to cancel the appellant ’s demotion and to restore
the appellant to the position of Paradise Site Manager, Combined Cycle Plant,
effective June 21, 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.
¶13 We also ORDER the agenc y to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under Tennessee Valley Authority
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.
¶14 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully ca rried 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).
¶15 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
7
belie ves 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 communicati ons with the agency. 5 C.F.R. § 1201.182 (a).
¶16 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finan ce 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 necessa ry 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
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 RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
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 noti ce, the
Board cannot advise which option is most appropriate in any matter.
8
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Fa ilure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have qu estions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Was hington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pr obono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 Feder al Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court n o later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a cou rt-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
10
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess 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.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 “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants 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 Cir cuit or any other circuit court 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 d amages) 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 c ompleted “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 e arning 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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 decisi on.
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 amoun ts.
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 provid e 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 Ope rations at 504 -255-4630. | FREDERICK_DEAN_M_AT_0752_21_0494_I_1_FINAL_ORDER_2060732.pdf | 2023-08-18 | null | AT-0752 | NP |
2,779 | https://www.mspb.gov/decisions/nonprecedential/AMUNDSEN_SHANNON_DE_0752_20_0360_I_1_FINAL_ORDER_2060831.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHANNON AMUNDSEN,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DE-0752 -20-0360 -I-1
DATE: August 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant.
Mikel C. Deimler , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s separation . For the reasons discussed below, we GRANT
the agency’s petition for review , VACATE the initial decision, and DISMISS the
appeal as moot .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required t o follow or distinguish them in any fu ture decisions. In contrast,
a precedential decision issued as an Opinion and 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
¶2 The appellant has a lengthy history of Federal employment, most recently as
a Tax Examiner for the agency’s office in Ogden, Utah. Initial Appeal File
(IAF), Tab 1 at 1. In September 2019, she and the agency settled a complaint the
appellant had filed with the Equal Employment Opportunity Commission
(EEOC). IAF, Tab 31 at 12 -15. Among other things, the settlement agreement
provided that the agency would pay the appellant a certain lump sum and the
appellant would immediately apply for disability retirement. Id. at 12.
Additional provisions, about which the parties disagree, generally indicated that
the agency would either remove the appellant for m edical inability to perform her
work duties or, as a last resort, effectuate her resignation by June 30, 2020. Id.
at 12-13. The settlement agreement further provided that if the appellant believed
that the agency failed to comply, she must challenge the alleged noncompliance
with the agency’s Office of Civil Rights & Diversity (OCRD), after which she
could further challenge the matter with the EEOC. Id. at 14.
¶3 Although the appell ant did eventually apply for disability retirement, she
did not do so until March 2020. IAF, Tab 13 at 12 -13. She then requested that
the agency extend the resignation date contemplated by the settlement
agreement —June 30, 2020 —by six months, to ac commod ate the processing of her
application for disability retirement. IAF, Tab 31 at 71 -72. The agency denied
that request in April 2020. Id. The appellant submitted another request for delay
in mid -June 2020, but the agency denied that request as well. IA F, Tab 12
at 12, 14-16.
¶4 On June 29, 2020, the day before the resignation contemplated by the
parties’ settlement agreement, the appellant reque sted that the agency remove her
for medical inability to perform. IAF, Tab 31 at 37. She attached a letter from
her physician, detailing the appellant’s medical condition and limitations. Id.
at 39-47. On June 30, 2020, the agency responded, indicating that it could not
remove the appellant for medical inability to perform, so it would instead separate
3
her by res ignation, pursuant to the settlement agreement. Id. at 55 -56. The
agency did so, effective that same day. IAF, Tab 11 at 117, Tab 45 at 6.
¶5 The appellant filed two complaints to challenge the agency’s action. She
first filed a complaint through the proc ess identified in the parties’ settlement
agreement —the OCRD and the EEOC —arguing that the agency had breached the
agreement by, inter alia , failing to remove her for medical inability. See, e.g .,
Petition for Review (PFR) File, Tab 6 at 62, 66 -67, Tab 7 at 20 -21. The appellant
next filed the instant Board appeal, alleging that her separation by resignation
was involuntary. IAF, Tab 1 at 4, 6.
¶6 In the instant appeal, the administrative judge reversed the appellant’s
separation. IAF, Tab 51, Initial Dec ision (ID). He found that the appellant’s
separation was an actual removal, rather than a voluntary or involuntary
resignation, and it was within the Board’s j urisdiction. ID at 10 -12. The
administrative judge further found that the agency violated the parties’ settlement
agreement and, therefore, committed a harmful procedural error by effectuating
the appellant’s separation by resignation. ID at 13 -22. In the alternative, the
administrative judge found that even if the appellant’s separation was a
resignation, it was an involuntary one that would similarly require reversal. ID
at 11, 25. Lastly, he found that th e appellant failed to prove her discrimination or
reprisal claims. ID at 22 -25. The administrative judge ordered the agency to
cancel the separation and retroactively restore the appellant. ID at 25 -27.
¶7 The agency filed a timely petition for review, along with certification that it
had provided the appellant with interim relief. PFR File, Tab 1. The appellant
filed a response but did not file a cross peti tion for review to reassert her
discrimination and reprisal claims. PFR File, Tab 3.
¶8 While the petition for review in this Board appeal was pending, the Acting
Clerk of the Board issued an order, requesting additional information. PFR Fi le,
Tab 5. Both parties filed responses. PFR File, Tabs 6 -7. Among other things,
these responses included evidence that the appellant’s challenge through the
4
OCRD and EEOC has concluded. The result was an EEOC decision finding that
the agency had breac hed the parties’ settlement agreement and ordering the
agency to reevaluate the appellant’s request that she be remo ved for medical
inability. PFR File, Tab 6 at 95 -96. In turn, that resulted in the cessation of the
interim relief afforded by the initial decision in this Board appeal as the agency
revoked the appellant’s resignation and replaced it with a retroactive removal for
medical inability. Id. at 81, 86, 100. As further detailed below, we find that
these intervening events have rendered this appeal moot.
¶9 The parties have disagreed about which of the two settlement agreement
provisions regarding the appellant’s separation applied, but there appears to be no
dispute that one did. E.g., IAF, Tab 8 at 5 -7, Tab 31 at 12 -13. In other words,
the parties seem to agree that the appellant should have been either (1) removed
for medical inability to perform and obligated to not challenge the removal, or
(2) separated b y automatic resignation. Furthermore, their disagreement about
which of these options applied is precisely the type of disagreement contemplated
by another provision in the ir settlement agreement —one indicating that if the
appellant believes that the agen cy is noncompliant, she “shall” file a complaint
with the agency’s Office of Civil Rights & Diversity and then, if still unsatisfied,
she “may” further appeal the matter before the EEOC. IAF, Tab 31 at 14.
¶10 As previously mentioned, the appellant pursued tw o different avenues for
relief. The first was a complaint through the process identified in the parties’
settlement agreement —the OCRD and the EEOC —arguing that the agency had
breached the agreement by failing to remove her for medical inability. See, e. g.,
PFR File, Tab 6 at 62, 66 -67 (recognizing the appellant’s July 22, 2019 notice of
noncompliance). The second was the instant Board appeal, arguing that her
resignation was involuntary. IAF, Tab 1 at 4, 6 (Board appeal, filed
July 29, 2020).
¶11 While t he petition for review was pending in the instant appeal, the
appellant’s challenge through the OCRD and EEOC came to a conclusion. The
5
OCRD found that the agency complied with the settlement agreement, but the
EEOC disagreed. PFR File, Tab 6 at 62 -70, 8 9-98.
¶12 In a February 22, 2021 decision, the EEOC ruled that the agency breached
the parties’ settlement agreement by evaluating the appellant’s medical ability to
work, generally, rather than her medical ability to perform her work duties.2 Id.
at 95. At the appellant’s request, the EEOC ordered specific performance of the
parties’ settlement agreement, i.e., review of the appellant’s June 29, 2020
request that she be removed for medical inability under the proper standard. Id.
Notably, the EEOC order fu rther instructed the agency as follows:
If Complainant’s application is granted, the Agency shall revoke the
resignation executed on June 30, 2020, and take all administrative
actions necessary to effectuate [the contract provision regarding
removal for me dical inability]. In the event the application is
denied, Complainant’s resignation shall stand.
Id. at 96. Pursuant to this decision, the agency retroactively removed the
appellant for medical inability to perform on the date it had previously separated
her by resignation. Id. at 81, 86, 100.3 In a May 20, 2021 decision, the EEOC
denied the appellant’s request for consideration, while recognizing this
retroactive removal for medical inability.4 Id. at 99 -101. By the appellant’s own
telling, the OCRD and EEOC matter is now closed, presumably because she did
2 We note that this is a different conclusion than that of the administrative judge in this
appeal. The administrative judge found that the appellant’s request for removal was
adequate because she pres ented evidence that would have satisfied the Board’s standard
for evaluating a charge of medical inability to perform. ID at 18 -22.
3 In concert with a separate appeal against the Office of Personnel Management (OPM),
the appellant submitted additional do cumentation which further evidences that the
removal for medical inability is retroactive to June 30, 2020 —documentation that
included the agency’s proposal and decision letters. E.g., Amundsen v. Office of
Personnel Management , MSPB Docket No. DE -844E -22-0039 -I-1, Initial Appeal File
(0039 IAF) , Tab 5 at 80.
4 The EEOC decision describes the appellant’s request for reconsideration as one
concerning back pay and attorneys’ fees. PFR File, Tab 6 at 100.
6
not avail herself of the option to appeal the EEOC decision. PFR File, Tab 6
at 100, Tab 7 at 9 -10.
¶13 A case is moot when the issues presented are no longer “live” or the parties
lack a legally cogni zable interest in the outcome of the case. Hess v. U.S. Postal
Service , 124 M.S.P.R. 40 , ¶ 8 (2016). An appeal w ill be dismissed as moot if, by
virtue of an intervening event, the Board cannot grant any effectual relief in favor
of the appellant. Id. Thus, an agency’s complete rescission of the action
appealed, and an appellant’s restoration to the status quo ante, may render an
appe al moot. Id.
¶14 Here, even if we were to agree with the appellant and find the original
June 30, 2020 resignation involuntary, we could not return the appellant to duty
because the now -final EEOC decision resulted in that resignation being revoked
and replac ed with a removal for medical inability on the same date —a removal
that she agreed to not contest. See IAF, Tab 31 at 12 -13. Ordinarily, we might
need to further consider the appellant’s allegations of discrimination and reprisal
to determine whether the y could result in additional relief. See generally Hess ,
124 M.S.P.R. 40, ¶ 8 (noting that if an appellant raises a claim for compens atory
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); Fahrenbacher v. Department of
Veterans Affair s, 89 M.S.P.R. 260 , ¶ 9 (2001) (finding that the Board adjudicates
claims of discrimination and reprisal under the standards applicable for proof
under the associated statutes after the appellant has established that the Board has
jurisdiction over the appeal by proving that the retirement was involuntary). But
the appellant has effectively abandoned those claims. She did not file a cross
petition for review, and she did not raise the matters in her response to the
agency’s petition or her response to the show cause order. PFR File, Tabs 3, 7.
¶15 In her response to our show cause order, the appellant did argue that the
EEOC deci sion has no effect on this Board appeal. PFR File, Tab 7 at 10. It
7
seems as if she is taking that position, not because she wishes to return to work,5
but because she hopes that the Board will award backpay for the period between
her separation and the start of interim relief awarded by the initial decision in this
appeal —interim relief that ended because of the EEOC decision.6 Id. at 9 -10;
compare ID at 28 -29 (ordering inter im relief if the agency filed a petition for
review), with PFR File, Tab 1 at 26 (certifying that the agency provided interim
relief by restoring the appellant t o duty on January 4, 2020), Tab 6 at 86 (showing
that the agency ended the interim relief on April 4, 2021, due to the EEOC’s
decision and the removal for medical inability). However, doing so would require
that we ignore the result of the EEOC appeal, i.e., revocation of the resignation
and replace ment of that resignation with a retroactive removal for medical
inability. Among other things, that would be contrary to the well -established
principle that status quo ante relief does not entitle an appellant to be placed in a
better position than they would have enjoyed had the personnel action not
occurred. See Gingery v. Departmen t of Defense , 121 M.S.P.R. 423 , ¶ 8 (2014).
¶16 In sum, we vacate the initial decision because intervening events have
rendered this appeal moot.7 The June 30, 2020 separation challenged in this
5 In the appellant’s appeal against OPM, she is citin g her removal for medical inability
to support her claim that OPM should have granted her disability retirement application
that was left pending due to the litigation surrounding her separation. E.g., 0039 IAF,
Tab 5 at 18 -20, 60 -61.
6 While making this argument, the appellant identifies her removal for medical inability
as occurring on April 5, 2021. PFR File, Tab 7 at 10. However, as previously noted,
that removal was retroactive to June 30, 2020. Supra ¶ 12.
7 Because we find this appeal moot, we have not considered whether the settlement
agreement’s provision about challenging noncompliance through the OCRD and EEOC
constituted a waiver of Board appeal rights. See Lee v. U.S. Postal Service ,
111 M.S.P.R. 551 , ¶ 7 (2009) (explaining that a settlement agreement may include a
waiver of Board appeal rights, even if it does not explicitly refer to the Board ), aff’d
367 F. App’x 137 (Fed. Cir. 2010). Nor have we considered whether the EEOC
decision has any preclusive effect. See Peartree v. U.S. Postal Service , 66 M.S.P.R.
332, 336 (1995) (explaining that doctrines of claim preclusion and issue preclusion both
concern the preclusive effects of a prior adjudication and are based on similar policy
8
appeal has been revoked and replaced with a removal for medical inability on the
same date, pursuant to the parties’ settlement agreement and the EEOC decision
about the same, which the appell ant agreed t o not contest. Accordingly, we
dismiss this appeal for that reason.
NOTICE OF APPEAL RIG HTS8
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
summ ary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which case s fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
concerns —to “relieve parties of the cost and vexa tion of multiple lawsuits, conserve
judicial resources, and, by preventing inconsistent decisions, encourage reliance on
adjudication” ) quoting Allen v. McMurry , 449 U.S. 90 , 94 (1980). For similar reasons,
we reach no conclusion about whether the administrative judge was correct to decide
that the appellant’s separation constituted a removal, rather than a resignation.
8 Since the issuance of the initial decision in this ma tter, the Board may have updated
the notice 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
about whether a particular forum is the appropria te one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants b efore the 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 revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
10
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after
you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action in volves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
11
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities l isted in 5 U.S.C. § 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 practi ce described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of app eals 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 pet ition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
9 The original statutory provision that provided for judicial rev iew of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additi onal information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’ s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regard ing pro bono representation
for Merit Systems Protection Board appellants b efore the 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 inf ormation for the courts o f appeals can be found at
their respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AMUNDSEN_SHANNON_DE_0752_20_0360_I_1_FINAL_ORDER_2060831.pdf | 2023-08-18 | null | DE-0752 | NP |
2,780 | https://www.mspb.gov/decisions/nonprecedential/WILMOTH_JOEL_DA_0752_21_0109_I_1_FINAL_ORDER_2060839.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOEL WILMOTH,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-0752 -21-0109 -I-1
DATE: August 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel J. Gamino , Esquire, Oklahoma City, Oklahoma, for the appellant.
Jermiah Phelix , Esquire, and Michele S. McNaughton , Esquire, Tinker A ir
Force Base , Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed its chapter 75 removal action . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
interpretation of statute or regulation or the erroneous a pplication 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 affec ted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we 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
¶2 Effective December 23, 2020, the age ncy removed the appellant from his
position as a W S-11 Aircraft Engine Mechanical Work Inspector Supervisor
pursuant to 5 U.S.C. chapter 75. Initial Appeal File (IAF), Tab 5 at 14, 16 -19,
80-86. The agency’s notice of proposed removal stated as follows: “[t]he
reasons (sic) for this proposed action is yo ur deliberate attempt to coerce your
subordinate to lie.” Id. at 80. The notice of proposed removal thereafter
identified the “specific reason” for the proposed action as follows: “On 13 Dec
2019, you attempted to coerce [agency employee K.B.] to lie about a statement he
gave confirming inappropriate comments made by you.” Id. The notice
explained that K.B. had provided agency management with a written statement
confirming that he had heard the appell ant make an inappropriate comment to a
group of agency employees in February 2019 , which the appellant had, on
December 13, 2019, asked him to retract . Id. The appellant appealed the
agency’s action to the Board and requested a he aring on the matter. IAF, Tab 1
at 2.
3
¶3 Following a hearing conducted via Zoom for Government, the
administrative judge issued an initial decision finding that the agency had failed
to prove it s charge and reversing the agency’s removal action. IAF, Tab 30,
Initial Decision ( ID) at 1, 12. The administrative judge concluded that the
incident described in the agency’s notice of proposed removal had occurred as
alleged, i.e., that the appellant had asked K.B. to retract his written statement
regarding the appellant’s February 20 19 inappropriate comment . ID at 6-9. In so
concluding, the administrative judge found “the appellant’s outright denial of the
conversation [with K.B.] to be inherently improbable,” explaining , among other
things, that the appellant’s demeanor and body la nguage while testifying
“suggested nervousness and evasiveness.” ID at 9. The administrative judge also
concluded that the appellant had, in asking K.B. to retract his written statement,
“acted deliberately or with intent.” ID at 9 -10. To this end, he reasoned that “the
most logical result of the appellant’s actions was to spare himself from suffering
another disciplinary action.”2 ID at 10. The administrative judge concluded,
however, that the agency fa iled to show that the appellant’s conduct consti tuted
an attempt to coerce his subordinate to lie. ID at 10-12. To this end, he found
that the appellant and K.B. did not have a supervisor/subordinate relationship
during the relevant timeframe. ID at 11. He also found that, although the
appellant’s r equest was highly inappropriate and likely constituted conduct
unbecoming a supervisor and/or Federal employee, that was not the charge at
issue ; rather, the agency had charged the appellant with attempting to coerce his
subordinate to lie. ID at 11-12.
¶4 The agency has filed a petition for review, and the appellant has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. In its petition, the agency
2 As set forth in the initial decision, ID at 3 n.1, p rior to the events giving rise to this
appeal, the appellant received written reprimands on October 31, 2018, and
November 22, 2019, for discourteous conduct and i nappropriate conduct, respectively ,
IAF, Tab 5 at 97 -105.
4
argues the following: (1) the administrative judge misconstrued the language of
the agency’s char ge; (2) the administrative judge erroneously analyzed whether
the appellant coerced his subordinate instead of whether he attempted to coerce
his subordinate; and (3) the agency proved the essence of the charge. P FR File,
Tab 1 at 4 -7.
¶5 Following the close of the record on review, t he appellant filed a motion for
interim relief. PFR File, Tab 5 at 4 -6. He also filed a motion to strike the
agency’s petition for review, arguing that the agency did not include a certificate
indicating that it had compli ed with the administrative judge’s interim relief
order. PFR File, Tab 4 at 4 -5; ID at 13 -14. The agency did not respond to either
motion.
ANALYSIS
The Board declines to dismiss the agency’ s petition for review for failure to
compl y with the administrati ve judge’ s interim relief order.
¶6 When, as here, the appellant was the prevailing party in the initial decision
and the decision granted the appellant interim relief, any petition for review filed
by the agency must be accompanied by a certification that th e agency has
complied with the interim relief order. 5 C.F.R. § 1201.116 (a). The agency’ s
failure to provide the required certification may result in the dismissal of th e
agency’s peti tion for review. 5 C.F.R. § 1201.116 (e). Here, t he agency failed to
provide the requisite certification with it s petition; indeed, the agency’s petition
did not address interim relief at all. PFR File, Tab 1 at 4 -7.
¶7 The appellant has submitted two filings wherein he contends that the agency
failed to comply with the administrative judge’s interim relief order and request s
that the Board both order such relief and “strike” the agency’s petition for review .
PFR File, Tab 4 at 4 -5, Tab 5 at 4 -6. The Board will not entertain a motion to
enforce an interim relief order; rather, it will treat such a motion as a m otion to
dismiss the petition for review. Batten v. U.S. Postal Service , 101 M.S.P.R. 222 ,
¶ 6, aff’d , 208 F . App’x 868 (Fed. Cir. 2006). Accordingly, we construe both of
5
the appellant’s filings as req uests to dismiss the agency’ s petition for review for
noncompliance with the administrative judge’s interim relief order .
¶8 An appellant’ s motion to dismiss a petition for review for noncompliance
with an interim relief order must be filed before the record on review closes,
unless it is based on new and material evidence that was not readily available
before the record closed. Forma v. Department of Justice , 57 M.S.P.R. 97 , 102,
aff’d , 11 F.3d 1071 (Fed. Cir. 1993) (Table). Here, the appellant submitted both
of his motions after the close of the record on review, i.e., more than 25 days
after the date of servi ce of the agency’s petition for review , and he has not shown
that his motions are based on any information that was not readily available to
him before the close of the record. See 5 C.F.R. § 1201.116 (d). Accordingly, we
find the appellant’s motions untimely filed without good cause shown. However,
even if the appellant’s motions had been timely filed , we would exercise our
discretion not to dismiss the petition for review because the issue of the agency’ s
compliance with the interim relief order is now moot by virtue of our final
decision . See Guillebeau v. Department of the Navy , 362 F.3d 1329 , 1332 -34
(Fed. Cir. 2004) (explaining that t he Board has discretion in deciding whether to
dismiss a petition for review for failure to comply with an interim relief order );
see also Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 20 (2016)
(conclud ing that the Board’s issuance of a final decision rendered moot the
parties’ dispute concerning the agency’ s compliance with the interim relief
order ).
The agency’s linguistic argument is unpersuasive and, in any event, is not
material to the outcome of this appeal .
¶9 The agency contends that the administrative judge erred in finding that it
failed to prove its charge . PFR File, Tab 1 at 4-7. To this end , the agency argues
that the administrative judge misconstrued the language of the charge, i.e., that ,
as written, the charge did not require the agency to prove that the appellant was
K.B.’s direct supervisor . Id. at 7. The agency aver s that the charge merely used
6
the term “your [s]ubordinate,” and the appellant could, on occasion, dictate
K.B.’s work as signments. Id. We find this assertion unpersuasive .
¶10 The agency is required to prove the charge as it is set out in the notice of
proposed removal . Parbs v. U.S. Postal Service , 107 M.S.P.R. 559 , ¶ 8 (2007).
In resolving the issue of how a charge should be construed, the structure and
language in the proposal notice and the decision notice will be examined.
George v. Department of the Army , 104 M.S.P.R. 596 , ¶ 7 (2007 ), aff’d ,
263 F. App’x 889 (Fed. Cir. 2008) . The nature of a charge should be construed in
light of the accompanying specifications and circumstances. Id.
¶11 Here , although the notice of proposed removal did not specifically identify
a “charge ,” it identified the “specific reason” for the appellant’s removal as
“Deliberate Attempt to Coerce your Subordinate to Lie .”3 IAF, Tab 5 at 80
(emphasis added). The notice of proposed removal also stated as follows: “ [t]he
reasons (sic) for this proposed action is your deliberate attempt to coerce your
subordinate to lie.” Id. (emphasis added). The decision letter used identical
language. Id. at 16. Thus , the charge/reason, as written, did not describe K.B. as
“a” subordinate; rather, it used the possessive adjective “your” to signify that
K.B. was in the appellant’s chain of command, as oppose d to subordinate in a
general sense, i.e., lower in grade .4 Cf. Robb v. Department of Defense ,
77 M.S.P.R. 130 , 133 -34 (199 8) (exp laining the distinction between the charge
3 Generally, in a proposal notice, an agency sets out the charge(s) levied against the
employee, or the reason(s) for the action, each followed by one or more specifications
or specific instances of behavior underlying that charge. However, there is no
requirement that the notice be in any particular form. Schifano v. Department of
Veterans Affairs , 70 M.S.P.R. 275 , 279 (1996).
4 K.B. had previously worked directly for the appellant. ID at 8 n.8. Moreover, at the
time of the conversation between K.B. and the appellant, K.B. was working in the
appellant’s building , and, th erefore, the appellant could dictate K.B.’s work
assignments for the day. ID at 11. Nevertheless, we find that a different outcome is not
warranted; indeed, it is undisputed that the appellant could not exercise typical
supervisory functions over K.B., e .g., he could not rate K.B.’s performance or
approve/deny K.B.’s leave requests. Id.
7
itself and the narrative outlining the charge and finding that the latter, which is
descriptive in nature, is not an element of the charge ). In any event, this
linguistic dispute is not material to the outcome of this appeal. Indeed, as set
forth in greater detail below, inherent to a charge of coercion is some degree of
threat. As discussed herein, we discern no basis to disturb the administrative
judge’s conclusion that the ag ency failed to show that the appellant threatened
K.B. in any capacity ; rather, the evidence showed only that the appellant asked
K.B. to recant his statement. ID at 11-12. Thus, even if the agency had charged
the appellant with “ Deliberate Attempt to Co erce a Subordinate to Lie ,” a
different outcome would not be warranted.
The agency’s contention regarding coercion versus attempted coercion is both
unclear and unpersuasive .
¶12 The agency argues that the administrative judge erroneously analyzed the
charge by requiring it to show that the appellant coerced his subordinate instead
of showing that he attempted to coerce his subordinate. PFR File, Tab 1 at 5 -6.
The agency assert s that it “is axiomatic in American jurisprudence that,
fundamental to an attempt charge, it is of no consequence if the actor succeeds or
not, or is even capable of success – the only requirement is that the actor take
action in furtherance of his goal.” Id. at 5. We find this assertion unpersuasive .
¶13 The Board has infrequently analyzed a charge of coercion. In Johnson v.
Department of Transportation , 13 M.S.P.R. 652 , 654 (1982), aff’d , 735 F.2d 510
(Fed. Cir. 1984), the Board considered the appropriate legal standard for proving
coercion in the context of an appellant’s claim of coercion as a defense for his
having participat ed in a strike against the Government . In so doing, t he Board
rejected both the standard for coercion generally applicable in criminal cases, i.e.,
threat of imminent and unavoidable death or serious bodily harm , and the
standard generally applicable in civil cases, i.e., threats to persons and/ or
8
property , to include economic compulsion .5 Johnson , 13 M.S.P.R. at 656-59.
Instead, the Board held that the appellant was required to show “ that his failure to
report for work was the result of a threat or other intimidating conduct, directed
toward him, sufficient to instill in him a reasonable fear of physical danger to
himself or others, which a person of ordinary firmness would not be expected to
resist .” Id. at 656, 661.
¶14 Here, we find that the agency failed to satisfy any of the above -discussed
standards regarding coercion ; indeed, the record is devoid of evidence that the
appellant threatened K.B ., either explicitly or implicitly,6 in any capacity . As set
forth in the initial decision, K.B. never indicated that “the appellant threatened
his job or job duties, made quid pro quo promises to take certain actions if [K.B.]
agreed to do as he requested, or that the appellant even ordered him to retract the
statement .” ID at 11 (emphasis in original) . Indeed , K.B. did not testify as to the
possible consequences of his refusal. Id. Instead, the record reflected that the
appellant asked K.B. to recant his statement, that K.B. de clined to do so , and that
K.B. thereaf ter “went about his business without further incident .” ID at 11-12.
¶15 The agency’s contention —that the administrative judge erroneously
analyzed the charge by requiring the agency to show that the appellant coerced
his subordinate instead of requiring th e agency to show that he attempted to
coerce his subordinate —is unclear . PFR File, Tab 1 at 5 -6. The agency
5 In his initial decision, the administrative judge stated that “[t]he Board has held that
coercion may be found where it is based on threats to, among other things, i nterfere
with a business or occupation.” ID at 10 (citing Johnson v. Department of
Transportation , 13 M.S.P.R. 652 , 657 -58 (1982)). This statement was imprecise. In
Johnson , the Board referenced interference with a business or occupation in the context
of summarizing the test of duress or undue influence generally appli cable in civil
actions ; the Board, however, rejected this standard . Johnson , 13 M.S.P.R. at 657 -58.
This imprecision is not material to the outcome of this appeal. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984).
6 Indeed, as discussed above , the appellant did not have typical supervisory authority
over K.B. ; thus, the appellant’s request could not reasonably be construed as an implicit
threat to K.B. ’s position at the agency . ID at 11.
9
seemingly argues that it proved attempted coercion because the administrative
judge found that the appellant intentionally requested that K.B. ret ract his
statement so as to avoid discipline . Id. at 5 & n.1 . This finding, however, is not
material to an attempted coercion charge ; indeed, the finding pertains to the
appellant’ s intent to avoid discipline , not his intent to threaten to exert undue
influence on K.B ., i.e., to coerce him.7 ID at 9-10; see United States v. Isabella ,
918 F.3d 816 , 831 (10th Cir. 201 9) (explaining, in the criminal law context, that ,
to prove an “attempt ,” the Government must show both specific intent to commit
the charged crime and a substantial step towards completion of the same) . Thus,
the agency’s argument does not provide a basis to disturb the initial decision.
The agency failed to prove the essence of the charge .
¶16 Last, the agency contends that it proved “the essence” of the charge because
“the [administrative judge] found that the [a]gency proved every other aspect of
the charge besides coercion.” PFR File, Tab 1 at 6. To this end, t he agency a vers
that the administrative judge found that the conversation between the appellant
and K.B. underlying the charge had taken place as all eged and that the appellant
had acted deliberately . Id. We find these assertions unavailing.
¶17 If an agency chooses to label an act of misconduct, it is bound to prove the
elements that make up the legal definition of that charge. Otero v. U.S. Postal
Service , 73 M.S.P.R. 198 , 202 (1997). Here, the agency did not charge the
appellant with misconduct or with having an inappropriate con versation with
K.B.; rather, it elected to charge him with attempting to coerce his subordinate .
7 For purposes of his analysis, t he administrative judge broke the charge of “Deliberate
Attempt to Coerce your Subordinate to Lie ” into three distinct elements: (1) whether
the factual allegations were true, i.e., whether the December 13, 2019 conversation
between the appellant and K.B. took place as alleged ; (2) whether the appellant acted
deliberately, or with intent , during the course of the same, i.e., whether the appellant
intentionally requested that K.B. retract his statement so as to avoid discipline ; and
(3) whether the appellant ’s request constituted an attempt to coerce his subordinate to
lie. IAF, Tab 5 at 80; ID at 5-12. The agency’s apparent argument conflates the latter
two elements. PFR File, Tab 1 at 5 -6.
10
IAF, Tab 5 at 80. T hus, the agency did not prove the charge as written . See
Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir. 1990)
(explaining that the Board may not split a single charge into several independent
charges and then sustain one o f the newly formulated charges, which represents
only a portion of the original); see also Alvar ado v. Department of the Air Force ,
103 M.S.P.R. 1, ¶ 9 (2006) (stating that the Board is bound to decide cases
according to how the charge is written, not how it could or should have been
written ). Accordingly , we find no basis to disturb the initial decision .
ORDER
¶18 We ORDER the agency t o cancel the removal action and to restore the
appellant effective December 23, 2020 . See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶19 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act an d/or Postal
Service regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no la ter than 60 calendar days after the date of this decision.
¶20 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).
¶21 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
11
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 s pecific 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).
¶22 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and co sts. 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 of fice that issued
the initial decision on your appeal.
12
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determi nes the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which mu st be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calend ar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer an d to waiver of any
14
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess 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 ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
15
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9 The o riginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, per manently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circ uit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILMOTH_JOEL_DA_0752_21_0109_I_1_FINAL_ORDER_2060839.pdf | 2023-08-18 | null | DA-0752 | NP |
2,781 | https://www.mspb.gov/decisions/nonprecedential/HERROD_MICHAEL_L_PH_0752_19_0250_I_1_FINAL_ORDER_2060889.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL L. HERROD,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
PH-0752 -19-0250 -I-1
DATE: August 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire , Virginia Beach, Virginia, for the appellant.
Jeffrey S. Chang , Concord, New Hampshire, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency h as 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 , VACATE the initial decision , and DISMISS the
appeal for lack of jurisdiction .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 The Adjutant General of the New Hampshire Air National Guard (NHANG)
employed the appellant as a GS -9 Command and Control Specialist. Initial
Appeal File (IAF), Tab 4 at 8. The appellant was employed as a dual status
technician pursuant to 32 U.S.C. § 709 . IAF, Tab 4 at 8 -9. 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 concerning that position; and (4) wear the appropriate military uniform
while performing duti es 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).
¶3 The appellant ’s NHANG enlistment contract ended on April 26, 2019. IAF,
Tab 28 at 14. The appellant ’s NHANG unit commander found that the appellant
“did not meet the standard required by [Air Force Instruction] 36-2606 and was
unfit to continue to serve in the [NHANG].” Id. Accordingly, the unit
commander did not select the appellant for reenlistment and, effective April 26,
2019, he was honorably discharged from the NHANG and the Air Force Reserve .
Id. at 14, 20. The appellant was thus also separated from his Command and
Control Specialist position, effective April 26, 2019, due to the involuntary loss
of his military membership. IAF, Tab 1 at 10, Tab 28 at 23 , 166 .
¶4 The appellant filed this appe al of his separation , arguing that there was “no
basis for the agency ’s action ” and that he was den ied due process. IAF, Tab 1
at 4. The agency filed a motion to dismiss, arguing , as relevant here, that the
Board is without jurisdiction to hear his appea l because his separation was based
entirely upon his loss of his military membership, which was in turn based on his
fitness for duty in the NHANG . IAF, Tab 5 at 8 -9, 13 . In such a case, the agency
argued, the appellant ’s removal is appealable only to the NHANG ’s Adjutant
General. Id.
3
¶5 The appellant withdrew his request for a hearing and the administrative
judge issued an initial decision based on the written record. IAF, Tab 23 at 4,
Tab 31, Initial Decision (ID). She found that, pursuant to the National Defense
Authorization Act for Fiscal Year 2017 (NDAA for 2017), the appellant was a
chapter 75 employee, and thus the Board had jurisdiction over his separation . ID
at 3-4. She determined that he 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 she 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. She determined that the agency denied the
appellant his due process rights when it failed to provide an opportunity to
respond to its separation notice . ID at 4-5. As a result, the administrative judge
reversed the removal action, and ordered the agency to cancel the removal and
retroactively restore the appellant, effective April 26, 2019 .2 ID at 5.
¶6 The agency h as filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response opposing the agency ’s petition for
review , and the agency has filed a reply . PFR File, Tab s 3-4. With the
permission of the Acting Clerk of the Board, the agency has also filed a
supplemental pleading, arguing that the decision that the U.S. Court of Appeals
for the Federal Circuit has issued in Dyer , 971 F.3d 1377 , is dispositive. PFR
File, Tab s 6, 8-9. The appellant has not responded to this submission.
2 The administrative judge did not order the agency to provide interim relief pursuant to
5 U.S.C. § 7701 (b)(2)(A).
4
DISCUSSION OF ARGUME NTS 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.
¶7 The Board ’s jurisdiction is limited to thos e 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. Ci r. 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).
¶8 The agency argues that the administrative judge erred in finding that dual
status military technicians , such as the appellant, are considered tenured Federal
employees with adverse action appeal rights regardless of the basis upon which
the adverse action at issue was taken . PFR File, Tab 1 at 19 -20. For the
following reasons, w e agree that the administrative judge erred by finding that the
Board ha s jurisdiction over this appeal even though the appellant was separated
because he lost his military membership.
¶9 The administr ative 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 138 2; see also
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 , section 709(f)(4) provides that personnel
decisions that “concern[]” a dual status technician ’s “fitness for duty in the
reserve components” are appealable only to the adjutant g eneral of the
jurisdiction concerned .3 32 U.S.C. § 709(f)(4) , (g)(1) .
3 The NDAA for 2017 limits dual status National Guard Technician appeals of most
agency actions to the adjutant general of the relevant jurisdiction when the appeal
concerns activity occurring while the member is in a military pay status , or concerns
fitness for duty in the reserve components. 32 U.S.C. § 709(f)(4) . The law affords
appeal rights pursuant to 5 U.S.C. §§ 7511 -7513 concerning any activi ty not covered by
subsection (f)(4). 32 U.S.C. § 709(f)(5). Office of Personnel Management regulations
implementing the NDAA for 2017, which became effective on December 12, 2022, state
5
¶10 After the initial decision was issued in this matter, the Federal Circuit
issued its decision in Dyer , 971 F.3d 1377 . There, the court held that under
32 U.S.C. § 709 , “termination of dual -status employment . . . as the 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 the loss of his
membership in the NHANG . IAF, Tab 1 at 10, Tab 28 at 23, 166 . Thus, under
the court’s reasoning in Dyer , as well as the a pplicable statute , we find that the
Board lacks jurisdiction over his termination.
¶11 The appellant ’s attorney argues on review that Air National Guard members
may not be selected for reenlistment for reasons other than their fitness for duty,
such as a lack of need in a specific career field due to the Air National Guard’s
own over -hiring or changes in new aircraft that leave certain members ’ skills
obsolete. PFR File, Tab 3 at 5 -6. The appellant ’s argument is not persuasive.
Termination from dual status employment on the basis of loss of National Guard
membership concerns fitness for duty in a reserve component regardless of the
“reason for separation” from the National Guard . Dyer , 971 F.3d at 1383-84.
Thus, it follows that the Board lacks jurisdiction regardless of the reason.
32 U.S.C. § 709(f)(4), (g)(1).
¶12 The appellant ’s attorney also argues that the Board has jurisdiction because
the Board may review his appeal 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) . PFR File Tab 3 at 7 . In Egan , the Court held
that adve rse actions and performance -based removals or reductions in grade of dual
status National Guard Technicians are not appealable to the Board except as provided
by 32 U.S.C. § 709(f)(5) . 5 C.F.R. §§ 432.102 (b)(16), 752.401(b)(17 ); see Probation on
Initial Appointment to a Competitive Position, 87 Fed. Reg. 67,765, 67,782 -83
(Nov. 10, 2022).
6
that the Board has limited authority to review whether an agency observed the
procedural protections of 5 U.S.C. § 7513 when taking an adverse action under
5 U.S.C. chapter 75 for reasons pertaining to a negative security clearance
determination. Egan , 484 U.S. at 531. The court in Dyer found that Egan was
inapposite to the removal of a dual status technic ian 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 ” but was “compelled by statute due [to] his failure to meet a requirement of
employment provided for by statute. ” Dyer , 971 F.3d at 1383 -84.
¶13 Because we conclude the Board lacks jurisdiction over th e instant appea l,
we vacate the initial decision and dismiss this appeal for lack of jurisdiction .
NOTICE OF APPEAL RIG HTS4
This is the Board’s final decision in this matter. 5 C.F.R. § 1201.113 (c).
You may obtain review of this final decision . 5 U.S.C. § 7703 (a)(1). By statute,
the nature of your claims determines the time limit for seeking such review and
the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer
the following summary of available appeal rights, the Merit Systems Protection
Board does not provide legal advice on which option is most appropriate for your
situation and the rights describe d below do not represent a statement of how
courts will rule regarding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing 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 decisi on in this matter, the Board may have updated
the notice 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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given 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
8
were affected by an action that is appealable to t he Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. distri ct court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court ‑appoi nted lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed th rough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC ’s Office of Federal Operations within 30 calendar days after you recei ve
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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.
10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeal s
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circ uit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HERROD_MICHAEL_L_PH_0752_19_0250_I_1_FINAL_ORDER_2060889.pdf | 2023-08-18 | null | PH-0752 | NP |
2,782 | https://www.mspb.gov/decisions/nonprecedential/GIACHETTI_SARA_M_DC_1221_19_0101_W_3_FINAL_ORDER_2060905.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SARA M. GIACHETTI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-1221 -19-0101 -W-3
DATE: August 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dominick D. Schumacher , Esquire, and Kristin D. Alden , Esquire,
Washington, D.C., for the appellant.
Christine Beam , Esquire , and Jillian Barry , Esquire, Pittsburgh,
Pennsylvania, for the agency.
Stephen Butera , Esquire, Clarksburg, West Virginia, 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
found that she failed to establish a prima facie case of whistleblower reprisal in
1 A nonprecedential order is one that the Board has determi ned does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
her individual right of action (IRA) appeal . For the reasons discussed below, we
GRANT the appellant’s petition for review and REVERSE the initial decision to
find that the appellant made a prima facie case of whistleblower reprisal and also
find that the agency failed to prove by clea r and convincing evidence that it
would have taken one of the personnel actions in the absence of the appellant’s
protected disclosure. The appellant is granted corrective action .
BACKGROUND
¶2 The appellant is currently employed as the Dir ector of Logisti cs, GS -15, at
the agency’s Office of Acquisition, Logistics, and Construction (OALC) in
Washington, D.C. Giachetti v. Department of Veterans Affairs , MSPB Docket
No. DC -1221 -19-0101 -W-1, Initial Appeal File ( IAF), Tab 1 at 1. At the time
relevant to this appeal, the appellant served as the Director of Acquisition
Business Service (ABS). Giachetti v. Department of Veterans Affairs , MSPB
Docket No. DC -1221 -19-0101 -W-3, Appeal File (W -3 AF), Tab 1 at 10. In that
position, the appellant’s first -level superv isor was the Executive Director of the
Office of Acquisition Operations (OAO), and her second -level supervisor was the
Acting Chief Acquisition Officer. IAF, Tab 5 at 6; W -3 AF, Tab 16 at 4, 10.
¶3 On January 26, 2018, the appellant filed a complaint with the Office of
Special Counsel (OSC) asserting that, in reprisal for making four disclosures
concerning the Executive Director, as detailed below, the agency took a series of
personnel actions against her . IAF, Tab 1 at 14 -49. On August 30, 2018, OSC
closed its file in the matter and informed the appellant of her right to seek
corrective action from the Board. Id. at 50.
¶4 Thereafter, the appellant filed the instant IRA appeal wherein she asserted
the same arguments made before OSC. IAF, Tab 1 at 6-49. Sp ecifically, in her
IRA appeal, she alleged : (1) in or about April 2015, she disclosed to the
Executive Director and later to the Acting Chief Acquisition Officer that the
Executive Direct or violated the Anti -Deficiency Act, other fiscal and acquisition
3
laws, and the Federal Acquisition Regulations (FAR) when she approved the
ratification of unauthorized commitments (UCs);2 (2) in 2015, she disclosed to the
Executive Director and the Acting Chief Acquisition Officer that the agency
issued orders in excess o f $25 million without “policy or legal review” in
violation of FAR 1.602 -2(c); (3) on July 1, 2015, she disclosed to the Acting
Chief Acquisition Officer that the Executive Director and the Director of the
Strategic Acquisition Center (SAC) provided false information in a response to a
Congressional inquiry; and (4) on September 8, 2015, she disclosed to the
Executive Director an “unlawful approval of an improper acq uisition.” IAF,
Tab 1 at 7, Tab 20 at 1 -2; W-3 AF, Tab 10 at 34 -69. She further alleged that, in
reprisal for making these disclosures, the agency took a series of personnel
actions against her, including denying her a promotion in 2015, not selecting her
for two other positions for which s he applied in 2016, giving her unjustifiably
low evaluations in 2015 and 2016, denying a grievance of her 2015 performance
evaluation, denying her an opportunity to complete the Senior Executive Service
Candidate Development Program (SESCDP), and subjecting her to a hostile work
environment. IAF, Tab 1 at 8-11, Tab 20 at 3 -4.
¶5 After finding that the Board has jurisdiction over the appellant’s claims,
IAF, Tab 20, the administrative judge issued an initial decision on the written
record,3 W-3 AF, Tab 21, Initial Decision (ID). He found that the appellant fail ed
to prove by preponderant evidence that any of her four disclosures were protected
under 5 U.S.C. § 2302 (b)(8) either because they concerned policy disputes or
because the appellant failed to pro ve that she had a reasonable belief that her
2 According to the appellant, an “unauthorized commitment” is an agreement for the
provision of goods or services that is not binding solely because the Government
representative who made it lacked the authority to enter into that agreement on behalf
of the Government. W -1 AF, Tab 1 at 15.
3 Although the appellant initially requested a hearing, W -1 AF, Tab 1 at 12, she later
withdrew that request, Giachetti v. Department of Veterans Affairs , MSPB Docket
No. DC-1221 -19-0101 -W-2 Appeal File, Tab 5.
4
disclosures evidenced any of the sort of wrongdoing contemplated by
section 2302(b)(8)(A). ID at 8 -23. He further concluded that the appellant failed
to prove that she made protected disclosures that were a co ntributing factor to any
personnel action and thus denied her request for corrective action. ID at 23.
¶6 The appellant then filed a petition for review. Petition for Review (PFR)
File, Tab 5. Therein, she argues that the administrative judge inappropria tely
gave her statements less weight than those of agency officials because he
erroneously believed that she did not submit a sworn declaration. Id. at 25. She
also argues that he erred in concluding that disclosures one, two and three were
not protected under 5 U.S.C. § 2302 (b)(8).4 Id. at 24 -31. The appellant also
reasserts that the agency took the above -outlined personnel actions against her
and that the disclosures were a contributing factor to those personnel actions. Id.
at 31 -32. The agency has filed a response to the appellant’s petition for review,
to which the appellant has replied. PFR File, Tabs 7 -8.
DISCUSSI ON OF ARGUMENTS ON R EVIEW
¶7 In an IRA appeal, the appellant bears the burden of establishing a prima
facie case of whistleblower retaliation. Lu v. Department of Homeland Security ,
122 M.S.P.R. 335 , ¶ 7 (201 5). To meet that burden, an appellant must prove, by
preponderant evidence, that she made a protected disclosure under 5 U.S.C.
§ 2302 (b)(8) and that the disclosure was a contributing factor in a personnel
action taken against her. 5 U.S.C. § 1221 (e)(1); Lu, 122 M.S.P.R. 335 , ¶ 7. If an
appellant does so, the agency is then 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); Lu, 122 M.S.P.R.
335, ¶ 7.
4 The appellant concedes on review that her fourth disclosure involved a policy dispute,
and therefore, does not challenge the administrative judge’s conclusion that she failed
to prove that the disclosure was protected under 5 U.S.C. § 2302 (b)(8). PFR File, Tab 5
at 25 n.8. Accordingly, we will not consider that fourth disclosure here.
5
¶8 As explained below, we agree with the administrative judge that the
appellant failed to prove that disclosure s 2 and 3 were protected under 5 U.S.C.
§ 2302 (b)(8). ID at 14 -18. However, we find that the appellant proved by
prepon derant evidence that she made a protected disclosure under 5 U.S.C.
§ 2302 (b)(8) when she made her first disclosure regarding the ratification of the
UCs. Because the record was fully developed be low, we have also considered
whether the appellant proved by preponderant evidence that her protected
disclosure was a contributing factor to the alleged personnel actions. See, e.g. ,
Forte v. Department of the Navy , 123 M.S.P.R. 124 , ¶ 27 (2016) (finding that the
Board may decide an issue on review, rather than remanding, when the
administrative judge applied an incorrect standard but the record was fully
developed). We also find that the appellant has shown by preponderant evidence
that her protected disclosure was a contributing factor to her 2015 and 2016
performance appraisals and to the significant change in her duties,
responsib ilities, and working conditions.
The appellant proved by preponderant evidence that she made a protected
disclosure under 5 U.S.C. § 2302 (b)(8).
¶9 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); Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285 , ¶ 18 (2013). A reasonable belief exists if a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant could reasonably conclude that the actions of the
Government evidence one o f the categories of wrongdoing listed in
section 2302(b)(8)(A). Chavez , 120 M.S.P.R. 285 , ¶ 18. The appellant need not
prove that t he matter disclosed actually established one of the types of
wrongdoing listed under section 2302(b)(8)(A); rather, she must only show that
6
the matter disclosed was one which a reasonable person in her position would
believe evidenced any of the situations specified in section 2302(b)(8)(A). Id.
Disclosure 1: The appellant proved by preponderant evidence that her
disclosure regarding the unlawful ratification of the UCs is protected
under 5 U.S. C. § 2302 (b)(8)(A) .
¶10 The appellant asserted that, in or around April 2015, she disclosed to the
Executive Director and later to the Acting Chief Acquisition Officer that the
Executive Direct or violated the Anti -Deficiency Act, other fiscal and acquisition
laws, and the FAR when she approved the ratification of prior UCs. W -3 AF,
Tab 10 at 7, 37.
¶11 In her final brief and submission to OSC , the appellant explained that the
agency’s Office of Inspector General (OIG) conducted an administrative
investigation i nto the agency’s expenditures related to its July and August 2011
conferences. Id. at 8, 37. The OIG found numerous excessive and unnecessary
costs and determined that several of these acquisitions were made by personnel
lacking authority to obligate the Government to pay them, otherwise known as
UCs. W -3 AF, Tab 11. Regarding a certain category of UCs, the OIG
recommended that “the VA Secretary take action to ratify any legal agreements
made by VA employees where there was no previous authority to comm it
payments.” Id. at 67. OALC responded to the recommendation by stating that
the FAR provides clear guidance for the processing of ratifications; however,
whether the expenditures in question are ratifiable is subject to the determination
by the appropr iate Head of Contracting Activity (HCA), subject to advice from a
contracting officer and legal review. W -3 AF, Tab 13 at 21.
¶12 On January 29, 2013, the then -HCA reported to the OIG that review of the
UCs revealed that they did not meet legal requirements for ratification “due to
noncompliance with [the] FAR,” and that the individuals responsible for the UCs
would be held pecuniaril y liable. W -3 AF, Tab 10 at 9, Tab 13 at 21. According
to the appellant, sometime later, agency officials again submitted th e UCs for
7
ratification and a new HCA again determined that the UCs were not ratifiable.
W-3 AF, Tab 10 at 9. After the second HCA departed from the position, the
agency again submitted the same requests for ratification a third time, which fell
to the th en-HCA, who is the current Executive Director in the instant appeal. Id.
In her role as the HCA at the time, sometime in May of 2014, the current
Executive Director also determined that the UCs were not ratifiable. Id.;
W-3 AF, Tab 14 at 8 -11. Accordin g to the appellant, shortly after this third
determination was made, the Executive Director s ent the UCs to the SAC
Director, who ratified the UCs, and the Executive Director approved the
ratification on May 6, 2014, despite her earlier assertion that such ratification was
against the FAR. W -3 AF, Tab 10 at 10. The appellant asserted that , once she
learned of the ratification, she met with the Executive Director in April of 2015 to
express her concerns over the legality of the ratifications and expressed similar
concerns to the Acting Chief Acquisition Officer in July of 2015. Id. at 7, 12.
¶13 In the initial decision, the administrative judge stated that the appellant
failed to submit a sworn affidavit and that the “only source for her version of
events is the material she presented to OSC.” ID at 9. Conversely, he relied
substantially on sworn affidavits from the Executive Director and the Acting
Chief Acquisition Officer and concluded that the appellant’s disclosure “points to
her disagreement with the agency’s choice of remedy to correct problems
identified years earlier in the IG report,” and that here, “persons senior to the
appellant held a different view about how to proceed.” ID at 13 -14. He also
stated that a protected disclosure must be “specif ic and detailed, [and] not vague
allegations of wrongdoing regarding broad or imprecise matters,” and concluded
that the appellant’s disclosure “lacked specificity” because it was not clear which
of the ratifications from the OIG she claimed were illegal. ID at 13 (quoting
Rzucidlo v. Department of the Army , 101 M.S.P.R. 616 , ¶ 13 (2006)). As such, he
found that the appellant fai led to prove by preponderant evidence that this
disclosure was protected under section 2302(b)(8)(A). ID at 13 -14.
8
¶14 On review, the appellant argues that the administrative judge erred in
stating that she failed to submit a sworn statement , and therefore, asserts that he
did not give her version of events proper weight. PFR File, Tab 5 at 25. She also
claims that, had he given her statements proper weight, they would have provided
the detail and specificity sufficient for the disclosure to be regarded as protected.
Id. at 25 -27. Additionally, she again asserts that she reasonably believed that her
disclosure evidenced a violation of law, rule, or regulation, and therefore, that it
is protected under section 2302(b)(8). Id.
¶15 We agree with the appellant. The appellant clearly indicated in her final
brief that the statements made in her pleading and the accompanying narrative
submitted to OSC were made under the penalty of perjury and are true and correct
to the best of her pers onal information, knowledge, and belief. W -3 AF, Tab 10
at 32. Such a statement carries evidentiary weight and, when credible, can be
sufficient to establish the facts asserted therein. See Donato v. Department of
Defense , 34 M.S.P.R. 385 , 389 (1987) (stating that an unsworn statement made
under penalty of perjury is the equivalent to an affidavit under 28 U.S.C. § 1746
and finding that an administrative judge erred in assigning less probative value to
such a statement); see generally Willingham v. Department of the Navy ,
118 M.S.P.R. 21 , ¶ 7 (2012) (explaining that a statement made under penalty of
perjury, if not inherently incredible and not disputed or rebutted by the other
party, proves the facts it asserts), appeal dismissed per curiam , 526 F. App’x 975
(Fed. Cir. 2013). Moreover, both the Executive Director and the Acting Chief
Acquisition Officer admitted that they recalled speaking with the appellant
regarding her concern over the UCs. W-3 AF, Tab 16 at 4 -5, 11.
¶16 Regarding the substance of the disclosure, the appellant alleged, with record
support and without agency dispute, that at least three other individuals expressed
concern over the legality of the ratifications of the UCs. W -3 AF, Tab 10 at 9,
Tab 13 at 21, Tab 14 at 5 -6, 8 -11. This shared belief, combined with the
appellant’s 29 years of experience in the acquisition field, leads us to find that
9
she has demonstrated that her belief that the ratification of the UCs violated law,
rule, or regulation was a reasonable one. W -3 AF, Tab 10 at 38; see Schlosser v.
Department of the Interior , 75 M.S.P.R. 15 , 21 ( 1997) (concluding that an
appellant can establish a reasonable belief that he made a protected disclosure by
showing that he was familiar with the alleged illegal conduct and was therefore in
a position to form such belief, and that his belief was shared b y other similarly
situated employees). Accordingly, we find that the appellant proved by
preponderant evidence that this disclosure is protected under 5 U.S.C.
§ 2302 (b)(8)(A). See Reid v. Merit Systems Protection Board , 508 F.3d 674 , 676,
678 (Fed. Cir. 2007) (conc luding that a disclosure of a potential violation of the
FAR can constitute a protected disclosure).
Disclosure 2: The administrative judge correctly found that the appellant
failed to prove by preponderant evidence that her disclosure regarding the
agency’s issuance of orders in excess of $25 million without policy or legal
review in violation of the FA R was protected under 5 U.S.C.
§ 2302 (b)(8)(A).
¶17 In the appellant’s second alleged protected disclosure, she claimed that, in
June of 2015, she disclosed to the Executive Director that the agency is sued
orders, by way of an invalid type of contract, in excess of $25 million without
policy or legal review in violation of the FAR. W -3 AF, Tab 10 at 13 -14.
Specifically, she asserted that the Executive Director asked her for potential
approaches to acq uiring medical/surgical supplies and sent the appellant a
memorandum “requesting a single -award indefinite -delivery, indefinite -quantity
requirements type contract” for such an acquisition. Id. at 13. The appellant
asserted that there “is no such contrac t type.” Id. She further asserted that, based
on that invalid type of contract, the Executive Director authorized the issuance of
orders exceeding $25 million without policy or legal review , which she claimed
was in violation of FAR 1.602 -2(c). Id. at 1 4. FAR 1.602 -2(c) provides that
contracting officers “shall [r]equest and consider the advice of specialists in
audit , law, engineering, information security, transportation, and other fields, as
10
appropriate.” 48 C.F.R. § 1.602 -2(c). The appellant asserted that “no reasonable
person with a modicum of knowledge about [F]ederal contract law would
consider it appropriate to waive audit and/or lega l review of acq uisitions
exceeding $25 million.” W -3 AF, Tab 10 at 14.
¶18 In the initial decision, the administrative judge appears to have only
addressed the portion of the appellant’s disclosure that dealt with the type of
contract the Executive Director asked the appellant to draft. ID at 17 -18. He
disagreed with the appellant’s assertion that the type of contract was not a valid
contract type because the FAR permits both single award and multiple -award
indefinite -delivery indefinite -quantity (IDIQ) contracts. ID at 18 (referencing
FAR part 16). The administrative judge found that the appellant’s contention to
the contrary “undermines [his] ability to find that a disinterested observer with
knowledge of the essential facts known to a nd readily ascertainable by the
employee could reasonably conclude that she identified [G]overnment actions that
violate 5 U.S.C. § 2302 (b)(8)(A).” Id. As such, the administrative judge found
that the appellant failed to present preponderant evidence that she had a
reasonable belief in her disclosure that the IDIQ contract was not an authorized
type of contract or that it lacked proper review. Id.
¶19 On review, the appellant claims that the admini strative judge
“fundamentally misunderstood” the contract the Executive Director asked the
appellant to create by failing “to grasp the differences between requirements
contracts and IDIQ contracts, which complicates the single award/multiple award
analysi s.” PFR File, Tab 5 at 28 -29 (emphasis in original). She asserts that,
although the FAR recognizes IDIQ contracts and requirements contracts, it does
not provide for a single -award contract that has characteristics of both. Id. She
claims that a requir ements contract is generally granted to a single contractor and
that an IDIQ contract is generally granted in multiple awards but that the
“single -award indefinite -delivery, indefinite quantity requirements type contract”
desired by the Executive Director is not contemplated by the FAR. Id. She
11
reiterates that she believes such a contract is unlawful and that the Executive
Director sought to waive the requirement for legal review of actions up to
$25 million. Id.
¶20 Although the appellant is correct that the initial decision did not discuss the
nuances between the two types of indefinite -delivery contracts —an IDIQ contract
and a requirements contract —we nonetheless agree with the administrative
judge’s conclusion that the appellant failed to prove that she had a reasonable
belief in the alleged illegality of the above -described contract . ID at 17 -18. The
crux of the appellant’s challenge to the legality of the contract appears to be that
the FAR does not provide for a single -award IDIQ contract, and that a
single -award contract is typically a requirements contract. PFR File, Tab 5
at 28-29. However, the FAR provision governing IDIQ contracts makes clear
that, although a contracting officer must “give preference to making multiple
awards of indefinite -quantity contracts,” 48 C.F.R. § 16.504 (c)(1)(i), it
nonetheless contemplates single -award IDIQ contracts and provides an
enumerated list of considerations for determining the number of cont racts to be
awarded, 48 C.F.R. § 16.504 (c)(1)(ii)(A). Additionally, it provides circumstances
in which multiple -award IDIQ contracts must not be awarded, indicating that in
some circumstances, single -award IDIQ contract s are appropriate. 48 C.F.R.
§ 16.504 (c)(1)(ii)(B). Thus, t he plain language of the FAR itself provides for the
very type of contract, even if r are, that the appellant asserts is unlawful.
Therefore, given this plain language, we ultimately agree with the administrative
judge that no reasonable person —particularly one with the appellant’s
self-described expertise in procurement —would conclude tha t the type of contract
requested by the Executive Director evidenced a violation law, rule, or regulation.
¶21 Turning to the question of whether the appellant had a reasonable belief that
the contract illegally lacked proper review, we rely on the plain lan guage of the
relevant FAR provision. The appellant asserted that the agency violated
FAR 1.602 -2, which provides that “[c]ontracting officers shall [r]equest and
12
consider the advice of specialists in audit, law, engineering, information security,
transpor tation, and other fields, as appropriate.” 48 C.F.R. § 1.602 -2(c).
However, she has not shown that the substance of the contract required the advice
of specialists . The plain language of the regulation explains that such request and
consideration shall be sought “as appropriate.” 48 C.F.R. § 1.602 -2(c). Thus,
here, it appears th at the appellant believed that, under the circumstances, such
consideration and advice was appr opriate, while the contracting officer apparently
did not. Such policy disputes are not covered as protected disc losures . See Webb
v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 8 (201 5) (stating that general
philosophical or policy disagreements with agency decisions or actions are not
protected unless they separately constitute a disclosure of one of the categories of
wrongdoing listed in section 2302(b)(8)(A)). As such, we find that the
appellant’s second disclosure is not protected under 5 U.S.C. § 2302 (b)(8).
Disclosure 3: The administrative judge correctly found that the appellant
failed to prove by preponderant evidence that her disclosure regarding the
alleged false information provided to Congress was protected under
section 2302(b)(8)(A).
¶22 In the appellant’s third alleged disclosure, she claimed that, on July 1, 2015,
she told the Acting Chief Acquisition Officer that the Executive Director and the
SAC Director provided false information in response to a Congressional inquiry.
W-3 AF, Tab 10 at 14. Specifically, the a ppellant asserted that, in June 2015, the
Executive Director tasked her with preparing the agency’s response to a
Congressional inquiry that required a list of all positions for which contract
employees are used in any phase of the contracting process. Id. at 15. Several
agency employees determined that they needed to report that OAO employed four
contract employees. Id. at 43; IAF, Tab 9 at 16. According to the appellant, the
Executive Director later told the appellant that she and the SAC Director did not
want to report the use of any contract employees, and she removed the appellant
from the task. W -3 AF, Tab 10 at 15, 43. On September 11, 2015, the agency
generated a memorandum in response to the Congressional inquiry, which stated
13
that OAO does “n ot use contractor employees in contract management and
oversight roles.” IAF, Tab 9 at 28. According to the appellant, when she met
with the Acting Chief Acquisition Officer on July 1, 2015, she disclosed that the
Executive Director provided false inform ation to Congress. W -3 AF, Tab 10
at 16, 44.
¶23 Below, the administrative judge considered the appellant’s version of events
as set forth above, and also considered the Executive Director’s statements that
she did not recall telling the appellant not to pro vide accurate information about
contract employees to Congress, and that, regarding the memorandum submitted
to Congress, she had had back surgery that summer and was out on sick leave for
8 weeks, only returning to work on September 16, 2015 —5 days after the
memorandum was issued. ID at 15; W -3 AF, Tab 16 at 5. The administrative
judge also considered the Executive Director’s assertion that the memorandum
was drafted by someone else and that, although the signature on the memorandum
purported to be hers, she did not recognize it. ID at 15; W -3 AF, Tab 16 at 5.
Based on the foregoing, he found that the appellant failed to present preponderant
evidence that she had a reasonable belief in the disclosure that the Executive
Director lied to Congress. ID at 15-16.
¶24 On review, the appellant appears to attempt to reframe the disclosure from
claiming, as she did below, that she disclosed that the Executive Director and the
SAC Director provided false information to Congress, to claiming that she
disclosed that those two officials were “ preparing to make a false report to
Congress.” PFR File, Tab 5 at 29 (emphasis added). The record below, however,
is clear about the substance of the appellant’s allegation. In her final brief, she
asserted that she notified t he Acting Chief Acquisition Officer that the Executive
Director and the SAC Director “provided false information in response to a
Congressional inquiry.” W -3 AF, Tab 10 at 14. Her narrative details the
situation leading up to the issuance of the memorand um, and further alleges that
in her July 1, 2015 meeting with the Acting Chief Acquisition Officer, she raised
14
the Executive Director’s “untruthful response to a Congressional inquiry.” Id.
at 17. Additionally, in her narrative statement, she asserted that the
“misrepresentation of fact in response to a Congressional inquiry was the event
that triggered [her] decision to meet with” the Acting Chief Acquisition Officer.
Id. at 43. Thus, now here below did the appellant claim that she disclosed that the
agency officials were preparing to lie. Because the appellant’s submissions
below are identical to those submitted to OSC and there is no documentation
concerning any other arguments made befo re OSC in the record, the appellant has
failed to prove that she exhausted this claim before OSC, and, therefore, we
cannot consider it here. See Mason v. Department of Homeland Security ,
116 M.S.P.R. 135 , ¶ 8 (2011) (stating that the Board may consider only matters
that the appellant first raised and exhausted before OSC).5
¶25 With respect to the disclosure as framed in the proceeding below , we agree
with the administrative judge that the appellant failed to prove that she had a
reasonable belief in the contents of this disclosure. The Executive Director stated
that she was out on sick leave during the relevant time period that the
memo randum was written and submitted, IAF, Tab 9 at 28; W-3 AF, Tab 16 at 5,
and the appellant has not disputed that fact either below or on review, W -3 AF,
Tab 10; PFR File, Tab 5. Additionally, although the Board does not claim any
expertise in handwriting, it is clear on its face that the signature on the
5 The Board has recently clarified 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 a sufficient basis to
pursue an investigatio n. 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 her whistleblowing activities before the Board than she did to OSC. An
appellant may demonstrate exhaustion through her initial OSC complaint, evidence that
she amended the original complaint, including but not limited to OSC’s determination
letter and other letters from OSC referencing any amended allegations, and her written
responses to OSC referen cing the amended allegations. She may also establish
exhaustion through other sufficiently reliable evidence, such as an affidavit or a
declaration attesting that she raised with OSC the substance of the facts in the Board
appeal. Id.
15
memorandum, while purporting to be that of the Executive Director, does not
even remotely resemble other signatures of the Executive Director contained in
the record, IAF, Tab 9 at 28; W -3 AF, Tab 13 at 44 , Tab 16 at 9, Tab 17 at 48,
lending support to her assertion that someone else signed the document for her,6
W-3 AF, Tab 16 at 5. Moreover, the appellant h as alleged that she made this
disclosure on July 1, 2015, but the memorandum containing the purport ed false
information was not issued until September 11, 2015. IAF, Tab 9 at 28. Based
on the foregoing, we agree that the appellant failed to prove by preponderant
evidence that she had a reasonable belief in the disclosure that the Executive
Director li ed to Congress.
The agency’s denial of the appellant’s promotion, nonselection of the appellant
for two positions, 2015 and 2016 performance evaluations, and significant change
in duties, responsi bilities, and working conditions constitute personnel actions
under 5 U.S.C. § 2302 (a)(2)(A).
¶26 Because the administrative judge found that the appellant failed to make a
protected disclosure, he did not proceed to adjudicate whether any of the
disclosures contributed to a personnel action. IAF, Tab 20 at 2 -4; ID at 5-7, 23.
As explained above, because the record is fully developed and because we have
found that the appellant proved that she made a protected disclosure, we fully
adjudicate her claims here. See, e.g. , Forte , 123 M.S.P.R. 124 , ¶ 27; see also
Schnell v. Department of the Army , 114 M.S.P.R. 83 , ¶¶ 17 -24 (adjudicating the
remainder of an appellant’s IRA appeal after concluding that the administra tive
judge erred in finding that the appellant failed to prove that he exhausted his
remedy with OSC ).
¶27 The appellant has alleged that, in reprisal for her disclosures, the agency
took a series of personnel actions against her, including denying her a promo tion
in 2015, not selecting her for two other positions for which she applied in 2016,
6 Although unclear, it is possible that someone else signed the document and wrote
“for” before the Executive Director’s name. W -1 AF, Tab 9 at 28.
16
giving her unjustifiably low performance evaluations in 2015 and 2016, denying a
grievance of her 2015 performance evaluation, denying her an opportunity to
complete the SESCDP training program, and subjecting her to a hostile work
environment. IAF, Tab 1 at 8-11, Tab 20 at 3 -4. As explained below, we find
that the appellant proved by preponderant evidence that these constitute personnel
actions under 5 U.S.C. § 2302 (a)(2)(A) excep t for the 2015 grievance denial and
the alleged blocking of her participation in the training program.
The appellant’s denial of a promotion, nonselection, and performance
appraisals a re personnel actions under 5 U.S.C. § 2302 (a)(2)(A).
¶28 As an initial matter, it appears undisputed that the agency did not select the
appellant for a promotion in 2015 or for details to two position s for which she had
applied in or around June of 2016, namely a Deputy Chief of Staff position and an
Associate Deputy Assistant Secretary (ADAS) for the Office of Procurement
Policy, Systems, and Oversight position.7 IAF, Tab 9 at 174, 177;8 W-3 AF,
7 The record in this case is long and convoluted. It appears that the appellant has also
alleged that she applied for two oth er positions in the National Acquisition Center and
was not selected for either position. W -3 AF, Tab 10 at 60. It is unclear whether these
nonselections were the ones accepted for adjudication below by the administrative
judge, or whether the two nonsel ections were the two details set forth here. However,
the appellant has offered no further information regarding these nonselections by the
National Acquisition Center, such as the dates she applied, the dates she was not
selected, who was responsible for the selections, and so forth. As such, we find these
allegations to be too vague to consider here. See McDonnell v. Department of
Agriculture , 108 M.S.P.R. 443 , ¶ 7 (2008) (stating that the Board lacks IRA jurisdiction
over conclusory, vague, or unsupported allegations). Because her allegations contain
more information regarding the detail positions, we have considered those per sonnel
actions.
8 Regarding the detail to the ADAS position, there is some record evidence suggesting
that ultimately no one was selected for the position. IAF, Tab 9 at 177. Although there
may be a question as to whether a nonselection for a positio n that was ultimately never
filled —a situation somewhat comparable to the cancellation of a vacancy
announcement —can constitute a personnel action, see, e.g., Costin v. Department of
Health and Human Services , 64 M.S.P.R. 517 , 530 (1994) , the record elsewhere
suggests that soon after the agency informed the appellant that no one would be detailed
to the ADAS position, it did place somebody in that role, IAF, Tab 9 at 179; W -3 AF,
Tab 10 at 60.
17
Tab 10 at 42 , 59-60, Tab 15 at 13 . Decisions to not promote or to not appoint an
applicant, otherwise known as nonselections, are enumerated personnel actions
under 5 U.S.C. § 2302 (a)(2)(A)(i) -(ii). Additionally, the record contains the
appellant’s 2015 and 2016 performance evaluations, W -3 AF, Tab 17 at 48 -56,
61-67, and a performance evaluation is a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(viii).9
The appellant’s claim of a hostile work environment qualifies as a
personnel action under 5 U.S.C. § 2302 (a)(2)(A)(xii) because it involves a
significant change in duties, responsib ilities, and working conditions.
¶29 In her claim of a hostile work environment, the appellant generally alleged,
among other things, that the Executive Director’s attitude towards her
substantially deteriorated , that her workload was increased and additional
assistance was not provided, that she was excluded from high -visibility, complex
projects , that she experienced several issues related to leave, that her
relationships and authority with subordinates were weakened by the Executive
Director, and that she w as forced into uncomfortable situations with a subordina te
by the Executive Director. IAF, Tab 20 at 2 -4; W -3 AF, Tab 10 at 42 -69. She
also alleged that the Acting Chief Acquisition Officer avoided contact and
decreased communications with her. W -3 AF, Tab 10 at 44.
¶30 A hostile work environment claim can constitute a personnel action under
5 U.S.C. § 2302 (a)(2)(A)(xii) when the components of the claim amount to a
significant change in duties, res ponsibilities, or working conditions. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17 , ¶ 16. When determining
whether an appellant has experienced a “significant change in duties,
9 The appellant’s summary rating for her 2015 performance appraisal was “Excellent,”
and her summary rating for her 2016 performance appraisal was “Fully Successful.”
W-3 AF, Tab 17 at 53, 65. Although these are typically favorable, or, at a minimum,
acceptable ratings, 5 U.S.C. § 2302 (a)(2)(A) does not differentiate between levels of
ratings. Rather, that section simply provides that “a performance evaluation under
chapter 43 of this title or under title 38” constitutes a personnel act ion. 5 U.S.C.
§ 2302(a)(2)(A)(viii).
18
responsibilities, or working conditions,” the Board must consider the alleged
agency actions both collectively and individually because, even if an alleged
action does not co nstitute a covered personnel action individually, the cumulative
effect of certain actions could constitute a significant change in duties,
responsibilities, and worki ng conditions. See Holderfield v. Merit Systems
Protection Board , 326 F.3d 1207 , 1209 -10 (Fed. Cir. 2003). Ultimately, the
Board must decide, based on the totality of the circumstances, whether the
agency’s actions have practical and significant effects on the o verall nature and
quality of an employee’s working conditions, duties, or responsibilities. Skarada ,
2022 MSPB 17 , ¶¶ 16, 18.
¶31 The appellant’s specific allegations that her workload substantially
increased and she was not allowed to hire anybody to o ffset that workload relate
directly to a change in duties, responsibilities, and working conditions, as
contemplated by 5 U.S.C. § 2302 (a)(2)(A)(xii). Specifically, the appellant stated
that, afte r she made her disclosures, she was “swamped” with work and became
responsible to provide bimonthly Program Management Reviews in which she had
to prepare and provide all briefings on all ABS workload, a requirement not
imposed on any other office. W -3 AF , Tab 10 at 42. She also asserted that she
was required to report monthly on all ABS’s completed contracts requiring
closeout, even though she had closed out the most and had the fewest requiring
closeout of any OAO office. Id. Additionally, she claimed that the Executive
Director did not allow her to fill vacancies and reduced her total staff by over
68% while assigning additional tasks not relevant to the office’s function. Id.
at 48. Ultimately, the appellant stated, these actions resulted in her working “14
to 24 hours per day, 7 days per week, every week, including holidays.” Id. at 44.
¶32 The appellant’s statements are corroborated, to an extent, by the record.
For example, th e Executive Director asserted in her sworn statement that
“[d]uring 2015, there were changes with regards to delegations, and that impacted
the review workload that was going [the appellant’s] way.” W -3 AF, Tab 16 at 6.
19
Similarly, the Executive Director acknowledged that the appellant was not able to
fill vacancies in her office because of hiring freezes. Id. Additionally, the Acting
Chief Acquisition Officer confirmed in his sworn statement that the appellant had
told him that “she was not getting the staff that she needed and that she was
getting too much work,” and that she was working more than 8 -hour days. Id.
at 10-11. As such, we find that the appellant proved the substance of her claims
regarding her workload. Further, we find that such an inc rease of workload
without additional assistance would have a practical and significant effect on the
overall nature and quality of her duties, responsibilities, and working conditions.
See Skarada , 2022 MSPB 17 , ¶ 16. Accordingly, we find that she proved by
preponderant evidence that she was subjected to a personnel action under
5 U.S.C. § 2302 (a)(2)(A)(xii).
The appellant has failed to show by preponderant evidence that the denial
of her grievances of her performance appraisals in 2015 and the alleged
denial of SESCDP training constitute personnel actions under 5 U.S.C.
§ 2302 (a)(2)(A).
¶33 The appellant filed two grievances of her 2015 performance appraisals, both
of which were denied. IAF, Tab 9 at 114 -15, 127. She has asserted that those
denials constitute personnel actio ns. W -3 AF, Tab 10 at 29-30. The denial of a
grievance is not an enumerated personnel action under 5 U.S.C. § 2302 (a)(2)(A).
Although such an action could conceivably relate to a “decision concerning pay,
benefits, or awards,” as set forth in section 2302(a)(2)(A)(ix), the underlying
operative decision concerning pay, benefits, or awards is the performance
appraisal itself, and we have already found that to be a personnel action u nder
section 2302(a)(2)(A)(viii). Under the facts of this case, we decline to extend the
law to the situation presented here, and, therefor e, we find that the 2015
grievance decisions of the 2015 performance appraisal are not covered personnel
actions und er section 2302(a)(2)(A).
¶34 The appellant has also asserted that the agency denied her the opportunity to
complete SESCDP training. Specifically, she asserted that she was accepted into
20
the SESCDP training program, but that the Executive Director prevented her
participation in the program by “overwhelming [her] with tasks, precluding [her]
from filling personnel vacancies, and blocking [her] from moving to other
positions” so that she was unable to work on the SESCDP requirements. W -3 AF,
Tab 10 at 52 -53. Under 5 U.S.C. § 2302 (a)(2)(A)(ix), a decision concerning
training constitutes a personnel action if such training may reasona bly be
expected to lead to an appointment, promotion, performance evalu ation, or other
action set forth in section 2302(a)(2)(A) . However, in this case, there is no
evidence of any “decision” to deny the appellant the SESCDP training.
Moreover, the agency has asserted, and the appellant has not disputed either
below or on review, that the appellant ultimately completed the SESCDP training
program. W -3 AF, Tab 10 at 68, Tab 15 at 28. As such, we find that the
appellant failed to prove by preponderant evidence that the agency made a
decision to deny her training and that such a decision constituted a personnel
action under 5 U.S.C. § 2302 (a)(2)(A).
The appellant proved by preponderant evidence that her protected disclosure was
a contributing factor to the agency’s decision to give her lower performance
appraisals in 2015 an d 2016, and to the significant change in duties,
responsibilities, and working conditions, but failed to make such a showing with
respect to its decision not to promote her in 2015 and not to select her for a detail
to either the Deputy Chief of Staff or t he ADAS positions in 2016.
¶35 To prove that a disclosure was a contributing factor in a personnel action,
the appellant must demonstrate that the fact of, or the content of, the protected
disclosure was one of the factors that tended to affect th e personnel action in any
way. Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶ 18 (2015). The
knowledge/timing test allows an employee to demonstrate that the disclosure was
a contributing factor in a personnel action through circumstantial evidence, such
as evidence that the official taking the personnel action knew of the disclosure
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
21
the personnel acti on. Id. Once this test has been met, we must find that the
appellant has shown that her whistleblowing was a contributing factor in the
personnel action at issue, even if , after a complete analysis of all of the evidence,
a reasonable factfinder could no t conclude that the appellant’s whistleblowing
was a contributing factor in the personnel action. Id. We address the
contributing factor issue separately with respect to each personnel action.
The appellant proved that her protected disclosure was a con tributing
factor to the agency’s issuance of her 2015 and 2016 performance
appraisals.
¶36 Regarding the appellant’s performance appraisals, the 2015 performance
appraisal is dated October 14, 2015, and the 2016 performance appraisal is dated
October 20, 201 6. W -3 AF, Tab 17 at 53, 65. The appellant asserted below that
she made her protected disclosure regarding the unlawful ratification of the UCs
in April of 2015. W-3 AF, Tab 10 at 7, 12, 42. A personnel action taken within
approximately 1 -2 years of th e appellant’s disclosure satisfies the timing prong of
the knowledge/timing test. Mastrullo , 123 M.S.P.R. 110 , ¶ 21. Because both of
the performance appraisals were issued within 18 months of the appellant’s
April 2015 protected disclosure, we find that she has met the timing prong of the
knowledge/timing test. See id . Further, t he record reflects that the agency
official res ponsible for those apprai sals is the Executive Director , W-3 AF,
Tab 17 at 48-56, 61 -67, and t he appellant has sufficiently established that the
Executive Director was aware of her April 2015 d isclosure, W -3 AF, Tab 16 at 4.
Thus, we also find that the ap pellant has met the knowledge prong of the
knowledge/timing test. Because the appellant has met both prongs of the test, we
therefore find that she proved by preponderant evidence that her April 2015
protected disclosure was a contributing factor to the 2 015 and 2016 performance
appraisals. See Mastrullo , 123 M.S.P.R. 110 , ¶¶ 18, 21.
22
The appellant proved that her protected disc losure was a contributing
factor to the significant change in duties, responsibilities, and working
conditions.
¶37 Regarding the significant change in duties, responsibilities, and working
conditions, the appellant asserted in her sworn statements, and the Executive
Director confirmed, that the Executive Director was the agency official
responsible for the appellant’s workload and the staffing levels of her office .
W-3 AF, Tab 10 at 21-23, 48, 53, 58, Tab 16 at 6. Neither party appears to
dispute that the time frame in question for this personnel action runs from April
2015 through the time the Executive Director retired in October of 2016. W -3
AF, Tab 10 at 21 -23, Tab 16 at 6 . We have already stated that the Executive
Director was aware of the disclosure because it was made to her, W -3 AF, Tab 16
at 4, and the appellant has sufficiently established that the personnel action
occurred within 1 -2 years of the April 2015 disclosure, W -3 AF, Tab 10 at 42, 48.
As such, she has met the knowledge/timing test and has proven that her protected
disclosure was a contributing factor to this personnel action. See Mastrullo ,
123 M.S.P.R. 110 , ¶¶ 18, 21.
The appellant failed to prove that her protected disclosure was a
contributing factor to the agency’s decision to not promote her in 2015 .
¶38 Regarding the agency’s decision not to promote the appellant in 2015, the
appellant asserted that that decision occurred in April 2015, and the agency has
submitted into the record the selection register for the position, dated April 13,
2015, which shows that the appellant was not on the list of best -qualified
candidates , and , thus, could no t have been se lected for the position . W -3 AF,
Tab 10 at 42, Tab 16 at 23. As such, the operative date for the decision not to
promote the appellant is April 13, 2015. While the appellant asserted generally
throughout the appeal that her disclosure occurred in April 2015, her most
specific allegation is in her final brief where she states she raised her concern
over the ratification of the UCs “as early as late April 2015.” Id. at 12. It is the
appellant’s burden to show by preponderant evidence that her protected disc losure
23
was a contributing factor to this personnel action, see Lu , 122 M.S.P.R. 335 , ¶ 7 .
We find that she has not provided sufficient evidence to establish that her
disclosure occurred before the agency made the decision to not promote her.
Accordingly, we find that the appellant failed to prove by preponderant evidence
that her protected disclosure was a contributing factor to the agency’s decision to
not promote her.
The appellant failed to prove that her protected disclosure was a
contributing factor to the agency’s decision to not select her for the detail
to the ADAS position in 2016.
¶39 Regarding her c laim that the agency did not select her for the detail to the
ADAS position in reprisal for her protected disclosure, the appellant asserted that,
in May of 2016, she sought the detail to the ADAS position with the Office of
Procurement Policy, Systems, an d Oversight, where she would be working under
the Deputy Assistant Secretary, and that she informed the Executive Director that
she was seeking that detail. W -3 AF, Tab 10 at 59. She further stated that she
later attended a meeting with the Deputy Assist ant Secretary, the Executive
Director, and the departing ADAS, where she informed the Deputy Assistant
Secretary that she wished to be detailed to his office as an ADAS, and that he told
her to contact his assistant. Id. at 59 -60. The appellant stated th at the Executive
Director later told her that the three officials had discussed her potential detail
after she had left the meeting, and that she was ultimately informed that no one
would be detailed to the position. Id. at 60.
¶40 It appears undisputed that the decision to not select the appellant for the
detail to the ADAS position occurred sometime around May 2016, IAF, Tab 9
at 177, which is within 1 -2 years of the appellant’s April 2015 protected
disclosure, which satisfies the timing component of the kno wledge/timing test.
Mastrullo , 123 M.S.P.R. 110 , ¶ 21. Based on the record, the Deputy Assistant
Secretary was the agency of ficial responsible for the decision regarding the detail,
IAF, Tab 9 at 177; W -3 AF, Tab 10 at 59-60; however, the appellant has not
24
asserted, much less proven, that he was aware of her protected disclosure.
Nonetheless, in addition to proving actual know ledge to meet the knowledge
component of the knowledge/timing test, an appellant may also show that the
official taking the personnel action had constructive knowledge of the protected
disclosure. Nasuti v. Department of State , 120 M.S.P.R. 588 , ¶ 7 (2014); Dorney
v. Department of the Army , 117 M.S.P.R. 480 , ¶ 11 (2012). An appellant may
establish constructive knowledge by demonstrating that an individual with actual
knowledge of the disclosure or activity influenced the official accused of taking
the retaliatory action. Nasuti , 120 M.S.P.R. 588 , ¶ 7; Dorney , 117 M.S.P.R. 480 ,
¶ 11.
¶41 Here, the appellant alleged that the Executive Director, who had knowledge
of the protecte d disclosure, W -3 AF, Tab 16 at 4, discussed the appellant’s
potential detail with t he Deputy Assistant Secretary, W-3 AF, Tab 10 at 59 -60.
The Executive Director acknowledged the discussion, but asserted that she did not
approach the Deputy Assistant Sec retary, and that he, instead, approached her and
offered the unsolicited statement that “he was not interested in [the a]ppellant
joining his organi zation.” W -3 AF, Tab 16 at 8. Although it is undisputed that
the Executive Director and Deputy Assistant D irector discussed the appellant’s
potential detail, it is the sequence of events that is determ inative. The appellant
has not challenged the Executive Director’s contention that, when the Deputy
Assistant Secretary approached the Executive Director, he ha d already made his
decision regarding the appellant’s possible detail , and her speculation regarding
their conversation is insufficient to establish influence. See Duncan v.
Department of the Air Force , 115 M.S.P.R. 275 , ¶ 9 (2010) (finding that an
appellant’s speculation did not rise to the level of preponderant evidence), aff’d ,
674 F.3d 1359 (Fed. Cir. 2012) . Therefore, we find that the appellant failed to
meet her burden to prove by preponderant evidence that the Executive Director
influenced the Deputy Assistant Secretary’s decision to not detail the appellant to
his office, and has, thus, failed to establish either constructive or actual
25
knowledge on the part of the Deputy Assistant Secretary . Accordingly, we find
that the appellant failed to meet the knowledge prong of the knowledge/timing
test.
¶42 When an appellant fails to meet the knowledge/timing test, the Board will
consider other evidence, such as evidence pertaining to the strength or weakness
of the agency’s reasons for taking the personnel acti on, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
whether these individuals had a desire or motive to retaliate against the appellant.
See Dorney , 117 M.S.P.R. 480 , ¶ 15.
¶43 Here, there is almost no evidence in the record regarding the strength or
weakness of the agency’s reasons for not detailing the appellant to this role.
Important ly, at this stage of the proceedings , it is the appellant’s burden to
establish that her protected disclosure was a contributing factor to a personnel
action and this lack of evidence cuts against her . Further, her protected
disclosure was not personally directed at the Deputy Assistant Secretary, nor did
the Deputy Assistant Secretary have any knowledge of it. This lack of knowledge
suggests that the Deputy Assistant Secretary could not have given the protected
disclosure any weight and that he could not have had any desire or motive to
retaliate based thereon. Cf. Dorney , 117 M.S.P.R. 480 , ¶ 15 (stating that any
weight given t o a whistleblowing disclosure, either alone or in combination with
other factors, can satisfy the contributing factor standard ); cf. Sherman v.
Department of Homeland Security , 122 M.S.P.R. 644, ¶¶ 3-4, 9 (2015)
(explaining that a disclosure could have been a contributing factor in a negative
performance evaluation only if the r eviewing official learned of it before making
his decision) . Based on the foregoing , we find that the appellant failed to prove
that her protected disclosure was a contributing factor to this action.
26
The appellant failed to prove that her protected disclosure was a
contributing factor to the agency’s d ecision to not select her for the Deputy
Chief of Staff position in or around May or June 2016.
¶44 The appellant asserted that, in or around May or June 2016, she applied for
the Deputy Chief of Staff position. W -3 AF, Tab 10 at 59. The record
establishes t hat the Chief of Staff was more likely than not the selecting official
for this position. IAF, Tab 9 at 175. The appellant claimed that , after she met
with the Chief of Staff, he indicated that he was going to call the Acting Chief
Acquisition Officer, b ut that after his conversation with the Acting Chief
Acquisition Officer , the appellant never heard back from the Chief of Staff again.
W-3 AF, Tab 10 at 59. We interpret these statements to amount to an allegation
that the Acting Chief Acquisition Offic er influenced the Chief of Staff’s decision
not to hire the appellant for the position.
¶45 As explained above, an appellant may establish either actual or constructive
knowledge to meet the knowledge portion of the knowledge/timing test, and can
show constr uctive knowledge by demonstrating that an individual with actual
knowledge of the disclosure or activity influenced the official accused of taking
the retaliatory action. Nasuti , 120 M.S.P.R. 588 , ¶ 7 ; Dorney , 117 M.S.P.R. 480 ,
¶ 11. Here, the appellant has established that the Acting Chief Acquisition
Officer had actual knowledge of her protected disclosure, W -3 AF, Tab 16
at 10-11, and has alleged that he influenced the Chief of Staff’s decision
regarding her nonselection, W -3 AF, Tab 10 at 59. However, she has not
produced any evidence of such influence, such as when the two officials met, how
long they spoke, or what they spoke about, whether the Acting Chief Acquisition
Officer was aware that the appel lant was seeking the position, or any other
corroboration of her claim. It is the appellant’s burden of proof to establish that
her protected disclosure was a contributing factor to the nonselection . 5 U.S.C.
§ 1221 (e)(1); Lu, 122 M.S.P.R. 335 , ¶ 7 . Her bare assertion, without more, is
insufficient to establish constru ctive knowledge by preponderant evidence, see
27
Duncan , 115 M.S.P.R. 275 , ¶ 9. As such, we find that the appellant failed to
prove the knowledge prong of the knowledge/timing test.
¶46 As set forth above, when an appellant fails to meet the knowledge/timing
test, the Board will generally consider other evidence , such as evidence related to
the strength or weakness of the agency’s reasons for the personnel action,
whether the proposing or deciding official was the subject of the appellant’s
protected disclosure, and whether those officials had a desire or motive to
retaliate against the appellant. See Dorney , 117 M.S.P.R. 480 , ¶ 15 . Here, like
our above analysis of the ADAS nonselection, although the record lacks evidence
regarding why the agency did not select the appellant for this detail, the appellant
has not shown that its decision was weak or unsupported. Further, the appellant’s
protected disclosure regarding the unlawful ratificat ion of the UCs was not
directed at the Chief of Staff, and the appellant failed to prove that he had either
actual or constructive knowledge of the disclosure. Again, such lack of
knowledge suggests that the Chief of Staff could not have given the appella nt’s
protected disclosure any weight, nor could he have had any desire or moti ve to
retaliate based thereon. Cf. Sherman , 122 M.S.P.R. 644 , ¶¶ 3-4, 9 ; Dorney ,
117 M.S.P.R. 480 , ¶ 15. Accordingly, we find that the appellant failed to prove
by preponderant evidence that her protected disclosure was a contributing factor
to this personnel action.
The agency proved by clear and convincing evidence that it would have given the
appellant the same performance rating in 2015 and would have changed her
duties, responsibilities, and working conditions even in the abs ence of her
protected disclosure, but failed to prove that it would have given her the same
performance rating in 2016 in the absence of her protected disclosure.
¶47 Once the appellant makes a prima facie showing of whistleblower reprisal,
the burden shifts to the agency to prove by clear and convincing evidence that it
would have taken the same personnel action in the absence of the protected
disclosure. Lu, 122 M.S.P.R. 335 , ¶ 7. Clear and convincing evidence is that
measure or degree of proof that produces in the mind of the trier of fact a firm
28
belief as to the allegations sought to be established; it is a higher standard than
the “preponderance of the evidence” standard. Sutton v. Department of Justice ,
94 M.S.P.R. 4 , ¶ 18 (2003), aff’d , 97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R.
§ 1209.4 (e). In determining whether an agency has shown by clear and
convincing evidence that it would have taken the same personnel action in the
absence of whistleblowi ng, 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 offi cials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated. Soto v.
Department of Veterans Aff airs, 2022 MSPB 6 , ¶ 11; see also Carr v. Social
Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).10 The Board does
not view these factors as discrete elements, each of which the agency must prove
by clear and convincing evidence, but rather weighs these factors together to
determine whether the evidence is clear and convincing as a whole. Lu,
122 M.S.P.R. 335 , ¶ 7. The Board must consider all the evidence, including
evidence that fairly detracts fro m the conclusion that the agency met its burden.
Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012). Again,
because the record is fully developed in this m atter, we consider these questions
here without remand. See Forte , 123 M.S.P.R. 124 , ¶ 27 .
10 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act , Pub. L. No. 115 -195, 132 Stat. 1510 (2018 ), appellants may
file petitions for judicial review of Board decisions in whistleblower reprisal cases with
any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
29
The agency proved by clear and convincing evidence that it would have
given the appellant the same performance appraisal rating in 2015 even in
the absence of her protected disclosure but failed to prove the same with
respect to her 2016 performance appraisal rating.
¶48 Regarding the 2015 and 2016 performance appraisals, we first look to the
strength of the agency’s evidence in issuing the ratings. See Carr , 185 F.3d
at 1323 . With respect to the appellant’s 2015 performance appraisal, the
Executive Director rated the appellant “Excellent.” W -3 AF , Tab 17 at 53.
Although this is the second -highest possible rating, the appellant asserted that the
evaluation “provided objectively inaccurate numbers and statements regarding
[her] performance, omitted most of [her] accomplishments during the rating
period, omitted [her] most significant accomplishments, and understated the
accomplishments that [the Executive Director] referenced.” W -3 AF, Tab 10
at 50. In a sworn statement, the Executive Director asserted that she does “not
view an Excellent as a low rating.” W -3 AF, Tab 16 at 8. The performance
appraisal itself shows that the Executive Director gave the appellant the highest
rating (“Exceptional”) in six of the seven rating categories and the middle rating
level (“Fully Successful”) in the remainin g seventh category, which was
“Teamwork and Cooperation.”11 W-3 AF, Tab 17 at 52. The narrative
accompanying the performance evaluation set s forth the basis for the rating in
each category, explained the appellant’s accomplishments in a brief, yet
thoroug h, manner, and acknowledged that her most significant contribution
during the rating period was the mobilization of her workforce to address a
backlog of more than 6,000 contract closeouts. Id. at 55 -56. The appellant’s
challenge s to this narrative are vague and unspecific, and do not undercut in any
meaningful way the narrative’s evidentiary value .12 W-3 AF, Tab 10 at 50.
11 To receive an overall performance rating of “Outstanding,” an agency employee m ust
achieve an “Exceptional” rating for all elements. W -3 AF, Tab 17 at 53.
12 The appellant’s only discernable specific challenge to her performance appraisal
relates to the “Teamwork and Cooperation” element, wherein she argues that the agency
30
¶49 With respect to the 2016 performance evaluation, the Executive Director
rated the appellant “Fully Successfu l.” W -3 AF, Tab 17 at 65. This rating has
two rating categories above it and two below it. Id. The appellant has not
explained in her pleadings below or in a sworn statement why she was dissatisfied
with this rating, and the Executive Director stated i n her sworn statement that she
does not consider “Fully Successful” to be a low rating. W -3 AF, Tab 16 at 8.
The appraisal shows that the appellant received “Fully Successful” ratings for
five out of the six rated elements, and an “Exceptional” rating fo r the sixth
element. W -3 AF, Tab 17 at 64. Unlike the appellant’s 2015 performance
appraisal, however, the narrative summary of the appellant’s performance for
2016 is limited to one brief paragraph discussing only one of the critical
elements. Id. at 6 7.
¶50 Based on the foregoing, we find that the agency presented strong and
convincing evidence to support the 2015 performance appraisal rating, but we
also find that it presented almost no substantive evidence to support the 2016
performance appraisal rati ng. Thus, this factor weighs in favor of the agency
with respect to the 2015 performance appraisal but against it with respect to t he
2016 performance appraisal.
¶51 Regarding the existence and strength of the agency’s motive to retaliate, the
Executive Director stated in her affidavit that she did not rate the appellant
“Excellent” in 2015 or “Fully Successful” in 2016 “as retaliation for or as any
relation to any disclosure made to or about me.” W -3 AF, Tab 16 at 8. However,
the Executive Director was the agency official responsible for both appraisals,
and the Board has found that when the deciding official for the personnel action
is the subject of an appellant’s disclosure, as is undisputedly the case here, that
official may have a motive to retalia te against her. See Mithen v. Department of
did not correctly assess her travel, W -3 AF, Tab 10 at 50, but that challenge appears to
relate more directly to the Executive Director’s response to the appellant’s grievance of
the appraisal , as opposed to the appraisal narrative itself , id. at 59 .
31
Veterans Affairs , 119 M.S.P.R. 215 , ¶ 9 (2013). Further, we have found that
those re sponsible 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. Wilson
v. Department of Veteran s Affairs , 2022 MSPB 7 , ¶ 65; Smith v. Department of
the Army , 2022 MSPB 4 , ¶¶ 28 -29. The record establishes that the Executive
Director was in a senior leadership role in the work unit and was presumably
responsible for its overall performance, and , thus, may w ell have been motivated
to retaliate against the appellant because the criticism included in the disclosure
reflects on her in h er capacity as a manager. See id . Moreover, the record also
reflects that the relationship between the Executive Director and the appellant
was tense and strained. Thus, despite the Executive Director’s statement that the
appraisals were not in retaliation, we nonetheless find that this factor favors the
appellant.
¶52 The third Carr factor involves comparing employees who are similarly and
not identically situated. Soto , 2022 MSPB 6 , ¶ 11; see also Whitmore , 680 F.3d
at 1373. In this case , the appellant has admitted that at least 45% of agency
employees do not get “Outstanding” ratings. W -3 AF, Tab 10 at 51. The agency
has not presented any other evidence on this point, W -3 AF, Tabs 16-18, but it
does not dispu te the appellant’s contention. Because it is the agency’s burden of
proof, when the agency fails to introduce relevant comparator evidence, the third
Carr factor is effectively removed from consideration, although it cannot weigh
in favor of the agency. Soto , 2022 MSPB 6 , ¶ 18; see also Rickel v. Department
of the Navy , 31 F.4th 1358 , 1365-66 (Fed. Cir. 2022) (“The lack of evidence on
the third Carr factor appears neutral[.]”) (internal citation omitted). Considering
the appellant’s own admission with the agency’s lack of other substantive
evidence, we find that this factor weighs mostly neutral, if not slightly in favor of
the agency . See Siler v. Environmental Protection Agency , 908 F.3d 1291 , 1299
32
(Fed. Cir. 2018) (holding that in the absence of relevant comparator evidence, the
third Carr factor cannot favor the agency).
¶53 Weighing these factors against one another and on the whole with respect to
the 2015 performance appraisal, we find that the first factor warrants significant
weight, particularly give n the detailed narrative provided for that year’s
performance appraisal. Moreover, by the appellant’s own admission, nearly half
of agency employees receive ratings lower than “Outstanding,” and it is
unrealistic to assume that those half are all whistleb lowers, suggesting that other
similarly situated employees who are not whistleblowers also receive d ratings
below “Outstanding.” Although the Executive Director may have had a motive to
retaliate, we nonetheless find that the agency met its burden to show by clear and
convincing evidence that the appellant would have received the same rating in her
2015 performance appraisal even in the absence of her disclosure.
¶54 However, the agency’s near -complete lack of evidence to support the
appellant’s 2016 performance appraisal is concerning. Additionally, the fact that
the agency rated the appellant at a higher level just the year prior forecloses any
hypothetical justification that the appellant’s 2016 rating was consistent with
prior ratings. Indeed, the appellant dropped a performance level in nearly every
element from 2015 to 2016. W-3 AF, Tab 17 at 52, 64. The Board has held that,
when an agency fails to provide any narrative evidence to supp ort a performance
rating and there is no reason to believe that the performance rating is consistent
with other ratings, the agency fails to meet its burden to show by clear and
convincing evidence that it would have given an appellant the same performance
rating even in the absence of a protected disclosure. See Rumsey v. Department
of Justice , 120 M.S.P.R. 259 , ¶¶ 35 -38 (2013). This , combined with the
Executive Director’s potential motive to retaliate against the appellant , leads us to
find that the agency failed to prove by clear and convincing evidence that it
would have given the appellant the same performance rating in 2016 even in the
absence of her protected disclosure.
33
The agency proved by clear and convincing evidence that it would have
made significant changes to the appellant’s duties, responsibilities, and
working conditions even in the absence of her disclosure.
¶55 As exp lained above, the gravamen of the appellant’s hostile work
environment claim under 5 U.S.C. § 2302 (a)(2)(A)(xii) relate s to her workload
and staffing levels.13 Regarding the strength of the agency’ s evidence in support
of these changes, the Executive Director stated in her affidavit that, in 2015,
“there were changes with regards to delegations, and that impacted the review
workload that was going [the appellant’s] way.” W -3 AF, Tab 16 at 6. She a lso
claimed that she intended to allow the appellant to fill vacancies in her office, but
that there was a hiring freeze around that time imposed by the Supply Fund
Board. Id. The appellant has not disputed these points. W -3 AF, Tab 10. The
Executive Director further stated that when people are leaving the agency without
those positions being filled and there is still work coming in, it can seem like the
workload is increasing. W -3 AF, Tab 16 at 6. However, the agency has not
addressed the specific tasks identified by the appellant, such as her claim that she
was required to provide bimonthly Program Management Reviews in which she
had to prepare and provide all briefings on all of the ABS workload and to report
monthly on all of ABS’s compl eted contracts requiring closeout. W -3 AF, Tab 10
at 42. Furthermore , the appellant asserted that no other office was subject to
these requirements . Id. Although the record does not establish who imposed the
above -referenced delegation changes (which c ould have been responsible for the
additional assignments to the appellant’s workload), and for what purposes he or
she imposed them , the Executive Director nonetheless stated that she “moved
work away from [the appellant’s] organization to places that had more capacity”
13 We reiterat e that, although we have considered the appellant’s additional allegations
concerning the difficulties she faced in the workplace, such as her allegations that the
Executive Director discouraged her from taking leave and withdrew her prior support
for the restoration of the appellant’ s leave, those allegations are too vague to be
considered here. See supra ¶ 32 n. 10.
34
and “provided several people from other parts of OAO on details at various times
to help with workload.” W -3 AF, Tab 16 at 6. The appellant does not appear to
dispute this assertion. W -3 AF, Tab 10. We find these explanations convincing
and conclude that this factor favors the agency.
¶56 Regarding the second factor, as noted above, it is undisputed that the
Executive Director was responsible for the appellant’s workload and staffing
level. W -3 AF, Tab 10 at 21 -23, 48, 53, 58 , Tab 16 at 6 . In her affidavit, she
stated she “did not increase [the appellant’s] workload” or “prevent [her] from
hiring additional personnel” as retaliation or for any reason relating to [her]
disclosures she made to or about me.” W -3 AF, Tab 16 at 6 -7. Again, h owever,
we incorporate our analysis of this factor from above, namely, that the Executive
Director was the subject of the appellant’s disclosure and held a leadership role in
the work unit and was presumably responsible for its performance overall, and as
such, could have had a motive to retaliate against the appellant. See Wilson ,
2022 MSPB 7 , ¶ 65 ; see also Whitmore , 680 F.3d at 1370 . As we have found
above, this factor favors the appellant.
¶57 Regarding the third Carr factor, the agency has not presented any evidence
showing that it treats similarly situated employees who are not whistleblowers the
same as the appellant in this regard. Whether the agency’s lack of evidence here
is due to the fact that there are not any employe es similarly situated to the
appellant, given her leadership role, or because it failed to conduct a search in the
first instance is not answered by the record. As previously explained, when the
agency fails to introduce relevant comparator evidence, the third Carr factor is
effectively removed from consideration, although it cannot weigh in favor of the
agency. Soto , 2022 MSPB 6 , ¶ 18 .
¶58 Weighing the three Carr facto rs as they relate to the significant change in
duties, responsibilities, and working conditions, we place significant weight on
the Executive Director’s explanation that delegations changed in 2015 and that
there was a hiring freeze. Although we acknowled ge that the Executive Director
35
could have had a motive to retaliate, and the agency failed to produce any
evidence with regard to the third Carr factor, we nonetheless accept the agency’s
explanation for these actions and its assertion that it did move wor k away from
the appellant when possible. As such, we find that the agency proved by clear
and convincing evidence that it would have increased the appellant’s workload
and disallowed her from filling vacancies even in the absence of her disclosure.
¶59 In con clusion, we reverse the initial decision to find that the appellant
established a prima facie case of whistleblower reprisal , and we further find that
the agency failed to prove by clear and convincing evidence that it would have
given the appellant the sa me performance rating in 2016 even in the absence of
her protected disclosure. Accordingly , for the foregoing reasons, we find that the
appellant is entitled to corrective action under 5 U.S.C. § 1221 (g)(1) with respect
to her 2016 performance appraisal.
ORDER
¶60 We ORDER the agency to change the appellant’s 2016 performance
appraisal such that her rating in each element and the overall rating are the same
as the ratings she earned in 2015, ratings that were not tainted by reprisal for
whistleblowing.14 Brewer v. Department of the Interior , 76 M.S.P.R. 363, 372
14 We recognize that some of the elements and metrics in the appellant’s performance
standards appear to have changed between 2015 and 2016. W-3 AF, Tab 17 at 48 -52,
61-64. However, at least five elements are substantially similar. Id. Where the
appellant’s ratings in 2015 and 2016 differ in those five elements, the 2016 rating shall
be changed to match the 2015 rating, which was not tainte d by reprisal for
whistleblowing. Specifically, the appellant’s 2016 ratings in the “Pre -Award
Function,” “Contract Management,” and “Human Resources” elements shall be raised to
“Exceptional.” The appellant’s 2015 and 2016 ratings in the “Customer Care and
Service” and “Teamwork and Cooperation” elements are the same, and thus do not
require a change. Id. at 52, 64. Additionally, the appellant’s 2016 appraisal included
“Employee Engagement” as an element, which was not included in her 2015 appraisal.
Id. at 52, 64, 66. Thus, we cannot compare her rating in that element to one that was
not tainted by reprisal. Because the “Fully Successful” rating given by the agency in
the “Employee Engagement” element was the product of reprisal, the agency shall
change the appellant’s rating in that element to “Exceptional.”
36
(1997); see 5 U.S.C. § 1221 (e)(1). We also ORDER the agency to provide the
appellant with any other relief associated with the higher ratings, including
awards and bonuses, such that she is placed as nearly as po ssible in the situation
she would have been in had the agency not retaliated against her. 5 U.S.C.
§ 1221 (g)(1)(A)(i); see Rumsey , 120 M.S.P.R. 259 , ¶ 50. The agency must
complete this action no later than 20 days after the date of this decision.
¶61 We also ORDER the agency to pay the appellant, if applicable, the amount
of back pay, interest on back pay, and other benefits under the Office of
Perso nnel 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 ne cessary 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 days a fter the date of this decision.
¶62 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 to describe the
actions it took to carry out the Board’s Order. The appellant, if not no tified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶63 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 in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain the 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 communication with the agency. 5 C.F.R. § 1201.182 (a).
¶64 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
37
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 pr ocess 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.
¶65 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 APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled t o 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 , 1202.202, 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T 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
38
expert witness fee s, and costs, 5 U.S.C. §§ 1214 (g)(2), 1221(g)(1)(A)(ii), 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 appea l.
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 proh ibited 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 RIGH TS15
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
15 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot adv ise which option is most appropriate in any matter.
39
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
40
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
41
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raise s 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.16 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).
16 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circui t court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
42
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 payr oll 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 prov ide 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 Civili an 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.
Docume ntation 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 re ceived 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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805 (g).
NATIONAL FINANCE CEN TER CH ECKLIST 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 cou rts.
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 mu st 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 unemploy ment, 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. | GIACHETTI_SARA_M_DC_1221_19_0101_W_3_FINAL_ORDER_2060905.pdf | 2023-08-18 | null | DC-1221 | NP |
2,783 | https://www.mspb.gov/decisions/nonprecedential/SANTOS_NICK_SF_0752_20_0114_I_1_FINAL_ORDER_2060932.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NICK SANTOS,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -20-0114 -I-1
DATE: August 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward J. Southcott , Esquire, and Richard L. Pinckard , Esquire, San
Diego, California, for the appellant.
Diana Mondragon , Chula Vista, California, for the agency.
Julianne Kelly -Horner , San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a 60 -day suspension. For the reasons
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
discussed below, we GRANT the petition for review and REVERSE the initial
decision. Th e removal action is SUSTAINED.
DISCUSSI ON OF ARGUMENTS ON R EVIEW
We deny the appellant’s request to order compliance with the interim relief order
and/or dismiss the agency’s petition for review.
¶2 In her initial decision, the administrative judge ordered the agency to
provide interim relief under 5 U.S.C. § 7701 (b)(2)(A) in the event a petition for
review was filed by either party. Initial Appeal File (IAF), Tab 31, Initial
Decision (ID) at 19 -20. The Board’s regulations provide that when, as in this
case, the appellant was the prevailing party in the initial decision and the decision
granted the appellant interim relief, any petition or cross petition for review filed
by the agency must be accomp anied by a certification that the agency has
complied with the interim relief order. 5 C.F.R. § 1201.116 (a). If the agency
files a petition or cross petition for review and has not pro vided the interim relief
ordered, the appellant may request dismissal of the agency’s petition. 5 C.F.R.
§ 1201.116 (d). If the agency fails to demonstrate compliance with the interim
relief order, the Board has discretion to dismiss the agency’s petition pursuant to
5 C.F.R. § 1201.116 (e), but is no t required to do so.
¶3 Here, the agency’s petition for review was accompanied by declarations by
a management official and a payroll accountant, purportedly certifying the
agency’s compliance with the interim relief order. Petition for Review (PFR)
File, Tab 1 at 24 -25. The appellant challenged the agency’s certification, arguing
that he had not in fact received interim pay and benefits.2 PFR File, Tab 3.
He requested that the Board order the agency to comply with the interim
2 Upon receiving the appellant’s challenge to the agency’s certification, the Board
should have issued an order providing the agency an opportunity to submit evidence of
compliance. 5 C.F.R. § 1201.116 (b). It is unnecessary to issue such an order now, as
the agency has already responded to the appellant’s challenge, and the issue of
compliance can be resolved on the basis of the e xisting record. See Buckler v. Federal
Retirement Thrift Investment Board , 73 M.S.P.R. 476 , 483 (1997).
3
relief order, and/or dism iss the agency’s petition. Id. at 6; see also PFR File,
Tab 5 at 7 -8. In response, the agency argued that it had taken “appropriate
administrative action” to ensure that the appellant receives interim pay and
benefits, and that this was sufficient for co mpliance . PFR File, Tab 4 at 5 -8.
The agency further explained that the appellant is on administrative leave status
because it has determined that his return to the workplace would be unduly
disruptive. Id. at 9 -12; see 5 U.S.C. § 7701 (b)(2)(A)(ii), (B). The agency
subsequently provided evidence that, as of September 21, 2020, approximately
3 weeks after the petition for review was filed, the appellant had received pay and
benefits in accordance with the interim relief order. PFR File, Tab 6 at 14 -18.
¶4 We deny the appellant’s request to order compliance with the interim relief
order, as there is no authority that provides for filing such a request. See Dean v.
Department of the Army , 57 M.S.P. R 296, 300 (1993 ). We further find that
interim pay and benefits were not unreasonably delayed, and that the agency
complied with the interim relief order. See Buckler v. Federal Retirement Thrift
Investment Board , 73 M.S.P.R. 476 , 483 -84 (1997); Salazar v. Department of
Transportation , 60 M.S.P.R. 633 , 639 (1994). Accordingly, we deny the
appellant’s request to dismiss the agency’s petition for review.
The appellant did not contest the charge of conduct unbecoming a Supervisory
Border Patrol Agent.
¶5 The agency b ased its charge of conduct unbecoming on the following
specification:
On September 2, 2018, while off -duty, the San Diego Police
Department (SDPD) found you uncooperative, argumentative, and
you appeared to be intoxicated. SDPD detained and transported yo u
to McAlister Institute Inebriate Reception Center (MHRC). You
admitted to Customs and Border Patrol (CBP) Office of Professional
Responsibility (OPR) investigators you had consumed approximately
seven (7) alcoholic beverages throughout the day.
4
IAF, T ab 7 at 73. The appellant does not dispute this charge, and acknowledges
that he engaged in conduct unbecoming a supervisor. Hearing Transcript (HT)
at 174.
¶6 On review, the appellant asserts that the administrative judge
mischaracterized the testimony of the SDPD officer when she stated that the
officer “could not identify the point at which the appellant was uncooperative or
argu mentative.” PFR File, Tab 1 at 22-23; see ID at 8 n.2. However, as the
administrative judge went on to explain, it was unne cessary for her to decide
whether the appellant was uncooperative or argumentative, because the ap pellant
did not dispute that he engaged in conduct unbecoming during t he interaction. ID
at 8 n.2. As the charge is uncontested, t he alleged error does not affect the result,
and therefore does not require further review. See Panter v. Department of the
Air Force , 22 M.S.P.R. 281 , 282 (1984).
The charge of lack of candor is sustained.
¶7 To prove a charge of lack of candor, the agency must prove that (1) the
appellant gave incorrect or incomplete statements, and (2) did so knowingly.
Fargnoli v. Department of Commerce , 123 M.S.P.R. 330 , ¶17 (2016). Unlike
falsification, lack of candor does not require an intent to deceive. Id., ¶ 16.
A lack of candor charge may involve a failure to disclose something that, under
the circumstances, should have been disclosed in order to make the given
statement accurate and complete. Ludlum v. Department of Justice , 278 F.3d
1280 , 1284 (Fed. Cir. 2002).
Specification 1
¶8 In the first specification , the agency alleged the following:
On September 2, 2018, while off -duty, you were examined by
Emergency Medical Services (EMS). SDP D arrived at the scene and
told EMS that if EMS cleared you, then you would be going with
SDPD. Shortly thereafter, an EMS employee asked you if you had
any pertinent health history that you should know about. You said
5
you were a type (1) diabetic. In y our interview with CPB OPR
investigators, you stated you were not diabetic.
IAF, Tab 7 at 73. It is undisputed that the appellant gave EMS incorrect
information when he stated that he was a type 1 diabetic. See IAF, Tab 18 at 9,
Tab 21 at 22 (stipulating that the appellan t has never had diabetes).
The administrative judge found, however, that , because the appellant was so
intoxicated the police found it necessary to take him to a detox facility, it was “as
likely as not that the appellant did not knowing ly make a misstatement.”
ID at 10-11.
¶9 We disagree. The agency has provided the SDPD officer’s body camera
footage from the incident, which records the following dialog between the
appellant and one of the EMS paramedics:
Paramedic: Do you have any pertinent past medical history we should know
about, like say, diabetes, high blood pressure?
Appellant: Diabetes, high blood pressure.
Paramedic: You are a diabetic?
Appellant: Yes.
Paramedic: What type of diabetic are you?
Appellant: Type 1.
Paramedic: What do you take, [what] medicine?
Appellant: Nothing.
Paramedic: So you’re a type 1 diabetic who takes no medication
whatsoever?
Appellant: Correct.
Paramedic: I don’t think I’ve ever met anyone who does that. Do you know
any medications that you’re su pposed to be taking?
Appellant: Uh, metformin.
6
Paramedic: Okay, type 1 diabetics don’t usually take metformin.3
IAF, Tab 8, 647f -file 2, at 3:07 -3:44.
¶10 It is clear from this exchange that, more likely than not, the appellant
knowingly gave incorrect information to EMS. We have considered the
appellant’s theory that, in his intoxicated state, he simply parroted the words
“high blood pressure, diabetes.” HT at 177 (closing statement). However, while
that might plausibly account for the appellant’s initial response to the
paramedic’s inquiry, it does not explain why he would have gone on to state that
he was a type 1 diabetic and that he was taking metfo rmin for that condition .
Though untrue, these statements were directly responsive to the paramedic’s
questions and were not nonsensical or merely repetitive. Moreover, while the
SDPD officer who arrested the appellant outside the bar may have judged the
appellant unable to exercise care for his safety or th e safety of others, see Cal.
Penal Code § 647(f), this does not imply that the appellant was too intoxicated to
understand that his later stateme nts to the paramedics were incorrect . On the
probable ca use form, the arresting officer checked only 5 of the 21 signs and
symptoms indicating the appellant was under the influence of an intoxicant ,
see IAF, Tab 7 at 105, and the police camera video taken before and during the
appellant’s encounter with EMS does not show that the appellant was incoherent,
showing signs of difficulty processing information, or struggling to speak clearly .
Lastly, the fact that the appellant had a clear incentive to remain in the care of
EMS, instead of being returned to poli ce custody, lends further support to a
finding that he knowingly misinformed EMS that h e had a condition that could
require further medical treatment. Based on the above considerations, we sustain
the specification.
3 We take official noti ce under 5 C.F.R. § 1201.64 that metformin is prescribed to treat
type 2 diabetes. See https://medlineplus.gov/druginfo /meds/a696005.html (last visited
Feb. 17, 2023).
7
Specification 2
¶11 In the second specifi cation, the agency alleged the following:
On September 2, 2018, while off -duty, EMS determined that you did
not need to go anywhere by ambulance and you did not need EMS
treatment after they examined you. Next, an SDPD Officer
handcuffed you and stated he had no other choice but to book you
into county jail. While in SDPD custody, you stated that you
believed you had a heart condition at that time, and SDPD
acknowledged your heart condition. An SDPD Officer asked if you
felt that way because of the posit ion you were in or because there
was something medically wrong with you. You answered that you
would like to see a doctor. Consequently, you were released by
SDPD to EMS for further medical evaluation at University of
California San Diego Hospital in Hil lcrest, via ambulance.
Thereafter, when you were advised by EMS you were not in SDPD
custody, you chose to go home rather than seeing a doctor or
admitting yourself to a hospital.
IAF, Tab 7 at 73.
¶12 Body camera footage of the incident shows that, after the appellant was
cleared by EMS and returned to police custody, the following exchange occurred:
Officer: Do you think there’s something wrong with your heart?
Appellant: Yes sir.
Officer: Yes, you think there’s something wrong with you?
Appellant: Absolutely, yes sir.
Officer: Would you like to go to the hospital?
Appellant: Yes sir.
Officer: Are you going to give these medics any problems?
Appellant: No sir.
Officer: Step out of the vehicl e. [Appellant exits vehicle.]
Officer: And what is it you think is wrong with you?
Appellant: My heart’s beating very very fast.
Officer: Okay, that’s not totally abnormal. Do you have a heart condition?
Appellant: I believe I do right now, sir.
8
Officer: Is it because of the position you’re in, or do you think there’s
something medically wrong with you?
Appellant: I’d like to see a doctor, sir.
IAF, Tab 11, 647f, at 2:02 - 2:38.
¶13 We agree with the administrative judge that the agency has not shown by
preponderant evidence that the appellant gave incorrect or incomplete information
during this exchange. It is undisputed that the appellant has a history of panic
attacks, IAF, Tab 18 at 9, and while EMS found the appellant’s heart rate and
blood pres sure were normal at the time of his initial evaluation, the record does
not contain medical evidence concerning the appel lant’s condition at the time
he reported symptoms to the SDPD officer. It is true that, regardless of his actual
condition, the appell ant would have had incentive to state that he was unwell so
that he would be taken to the hospital instead of jail. Nonetheless, we cannot
determine from the record whether the appellant may have develop ed a real or
perceived heart condition following h is return to police custody . Accordingly,
we affirm the administrative judge’s finding that the agency failed to prove this
specification.
Specification 3
In its third specification, the agency alleged the following:
On December 12, 2018, during your inte rview with CBP OPR
investigators, you claimed you felt like you were having a panic
attack on September 2, 2018, but you omitted to EMS and SDPD that
you felt like you were having a panic attack, nor did you answer that
you suffered from panic attacks when asked specifically about your
health.
IAF, Tab 7 at 74. Although the agency placed these allegations under a single
specification, the agency appears to allege here that the appellant knowingly gave
incomplete information on two occasions: first , in his statements to EMS,
and second, in his separate statements to the SDPD officer.
9
¶14 We first address the appellant’s statemen ts to EMS. As noted above,
the EMS paramedic specifically asked the appellant if he had “any pertinent past
medical history we should know about,” and offered high blood pressure and
diabetes as examples. Under those circumstances, the appellant should have
disclosed his history of panic attacks, and by failing to do so, he gave EMS
incomplete in formation. However, considering that the appellant was intoxicated
and may have been distracted by the paramedic’s specific mention of high blood
pressure and diabetes, it is as likely as not that the appellant forgot to menti on his
history of panic attac ks and did not knowingly conceal that information.
¶15 We also find that that the agency has also not shown that the appellant
exhibited lack of candor by failing to inform the SDPD officer of his history of
panic attacks. In this case , the agency has not s hown that the appellant gave
incomplete inform ation, knowingly or otherwise. The officer did not specifically
ask the appellant about his medical history, and we do not see how, under those
circumstances, it was incumbent on the appellant t o attempt a sel f-diagnosis.
We therefore do not sustain the specification.
¶16 In sum, we sustain specification 1 of the lack of candor charge, and do not
sustain specifications 2 and 3. When more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge. Burroughs v. Department of the
Army , 918 F.2d 1 70, 172 (Fed. Cir. 1990). Accordingly, the charge of lack of
candor is sustained.
The administrative judge correctly found that the agency failed to prove the
charge of misuse of position.
¶17 The agency based its third and final charge on a single specification, as
follows:
On September 2, 2018, while off -duty, you interfered with the SDPD
as they were questioning your friend. An SDPD officer stated that
he could not leave your friend in her condition. Then, you told
officers they had discretion w hether to detain her .
10
IAF, Tab 7 at 74. We agree with the administrative judge that the agency failed
to prove the charge.
¶18 In the hearing order, the administrative judge cited Mann v. Department of
Health and Human Services , 78 M.S.P.R. 1 , 8 (1998), for the proposition that, in
order to prove a charge of misuse of position, the agency must prove that the
appellant misused his position f or private gain, and that the charge cannot be
sustained if no gain has been shown. At the prehearing conference, the agency
argued that Mann was not the applicable precedent, and that under Burkett v.
General Services Administration , 27 M.S.P.R. 119 , 121 (1985), it was only
required to show that the appellant used his office with the purpose of obtaining
private gain, regardless of whethe r he actually be nefited. IAF, Tab 25 at 3.
In her summary of the prehearing conference, the administrative judge stated that
he agreed with the agency’s argument and would apply the standard set forth in
Burkett . Id. In the initial decision, however, t he administrative did not apply
Burkett , but again cited Mann as the controlling precedent. ID at 7 -8.
¶19 The agency correctly observes that the administrative judge’s reliance on
Mann was inconsistent with her prior ruling. However, to the extent t he
administrative judge may have erred by relying on Mann rather than Burkett ,
the error is of no consequence, because the agency has not shown that the
appellant used his public office for the purpose of obtaining private gain,
successfully or otherwise . Body camera footage of the incident shows that the
appellant identified himself as “law enforcement” in the c ontext of arguing that
the SDPD officers had “discretion” to refrain from taking one of his companions
to the detox facility. IAF, Tab 11, AXON_B ody_2_Video_2018 -09-02_2234 ,
at 3:30 -3:42. In addition, the SDPD officer acknowledged in his testimony that
the appellant did not state “I’m a cop; give my friend a break,” or otherwise ask
for professional co urtesy. HT at 74. Given these facts, we find it more likely
than not that the appellant identified himself as a law e nforcement officer for the
purpose of claiming expertise on police procedures, and not for the purpose of
11
obtaining favorable treatment. Because the agency has not shown by
preponder ant evidence that the appellant used his public office for the purpose of
obtaining private gain, we agree with the administrative judge that the agency
failed to establish the charge.
The agency proved nexus.
¶20 An agency may show nexus between off -duty mi sconduct and the efficiency
of the service by three means: (1) a rebuttable presumption in certain egregious
circumstances; (2) preponderant evidence that the misconduct adversely affects
the appellant’s or coworkers’ job performance or the agency’s trust and
confidence in the appellant’s job performance; or (3) preponderant evidence that
the misconduct interfered with or adversely affected the agency’s mission.
Hoofman v. Department of the Army , 118 M.S.P.R. 532 , ¶ 16 (2012), aff’d , 526 F.
App’x 982 (Fed. Cir. 2013). In this case, the agency has provided evidence that
the appellant’s off -duty conduct adversely affected its trust and confidence in
the appellant’s ability to serve as a Supervisory Border Patrol Agent. See
HT at 148-49 (testimony of the deciding official). We discern no error in
administrative judge’s finding that the agency established nexus, and the
appellant does not contest that finding on review.
The penalty of removal is within the bounds of reasonableness.
¶21 When the Board sustains fewer than all of the agency’s charges, the Board
may mitigate the agency’s penalty to the maximum reasonable penalty so long as
the a gency has not indicated in either its final decision or in proceedings before
the Board that it desires that a lesser penalty be imposed on fewer charges.
Lachance v. Devall , 178 F.3d 1246 , 1260 (Fed. Cir. 1999). Th e agency has not so
indicated. Accordingly, we will consider whether the agency’s chosen penalty of
removal is within the bounds of reasonableness for the sustained misconduct.
¶22 In evaluating the reasonableness of a penalty, the Board will consider,
first and foremost, the nature and seriousness of the misconduct and its relation to
12
the employee’s duties, positions, and responsibilities, including whether the
offense was intentional or was frequently repeated. Saiz v. Department of the
Navy , 122 M.S.P.R. 521 , ¶ 11 (2015). A higher standard of conduct and a higher
degree of trust are required of an incumbent of a position with law enforcement
duties. Luongo v. Department of Justice , 95 M.S.P. R. 643 , ¶ 13 (2004), aff’d ,
123 F. App’x 405 (Fed. Cir. 2005) (Table). Moreover, a gencies are entitled to
hold supervisors to a higher standard than nonsupervisors because they occupy
positions of trust and responsibility. Edwards v. U.S. Postal Service ,
116 M.S.P.R. 173 , ¶ 14 (2010). As the adm inistrative judge observed,
the sustained charge of conduct unbecoming is by itself a se rious offense,
especially considering the involvement of the local police department, which is a
necessary partner of the Border Patrol. ID at 15; see HT at 145 (testim ony of the
deciding official) . Furthermore , as we have found here , the appellant
compo unded that offense by knowingly providing incorrect information to other
first responders.
¶23 We have considered relevant mitigating factors, including the appellant’s
length of service, his record of performance -based awards, and the rehabilitative
potentia l evidenced by his willingness to admit to conduct unbecoming.
However, considering that the sustained charge of lack of candor could
potentially result in the appellant’s Giglio impairment,4 it is doubtful that
an alternative sanction, such as a suspensi on or demotion to a nonsupervisory law
enforcement position, would be a viable option in this case. We find that the
penalty of removal is within the bounds of reasonableness, and we therefore
sustain it.
4 In Giglio v. United States , 405 U.S. 150 , 154 (1972), the Supreme Court held that the
Government must disclose evidence affecting the credibility of Government witnesses.
Subsequent case law has extended this rule to require Government agencies to review
the personnel files of Government witnesses and disclose material that could cast doub t
on their credibility or potential for bias. See United States v. Henthorn , 931 F.2d 29 ,
30-31 (9th Cir. 1991).
13
NOTICE OF APPEAL RIG HTS5
This is 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. § 770 3(a)(1). By statute, the
nature of your claims determines the time limit for seeking such review and the
appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the
following summary of available appeal rights, the Merit Systems Protection
Board does not provide legal advice on which option is most appropriate for your
situation and the rights described below do not represent a statement of how
courts will rule regarding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular f orum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a pet ition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the in itial decision in this matter, the Board may have updated
the notice 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
15
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
16
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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,” wh ich is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb. gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representat ion in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to fil e petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov /Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SANTOS_NICK_SF_0752_20_0114_I_1_FINAL_ORDER_2060932.pdf | 2023-08-18 | null | SF-0752 | NP |
2,784 | https://www.mspb.gov/decisions/nonprecedential/LOLLAR_CLIFTON_D_DA_1221_14_0324_C_1_ORDER_2060421.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CLIFTON D. LOLLAR,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-1221 -14-0324 -C-1
DATE: August 17, 2023
THIS ORDER IS NONPRECEDENTIAL1
Ashok Bail , Esquire, Houston, Texas, for the appellant.
Larry Zieff , Esquire , Williston, Vermont, for the agency.
Michelle M. Murray , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Li mon, Member
ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the compliance initial decision, which granted 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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’s petition for enforcement in part. 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 appl ication 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 re view. Therefore, we DENY the petition for review and the cross
petition for review and AFFIRM the compliance initial decision to find the
agency in noncompliance as to the appellant’s special act award, and ORDER the
agency to submit satisfactory evidence of compliance.
BACKGROUND
¶2 The appellant, a GS -14 Supervisory Criminal Investigator, filed an
individual right of action (IRA) appeal claiming that the agency took several
personnel actions against him in retaliation for various protected disclosures.
Lollar v. Department of Homeland Security , MSPB Docket No. DA-1221 -14-
0324 -W-1, Initial Appeal File, Tabs 1, 6. On December 13, 2016, the
administrative judge issued an initial decision granting corrective action as to
some of the claimed prohibited personne l practices. Lollar v. Department of
Homeland Security , MSPB Docket No. DA -1221 -14-0324 -W-3, Appeal File ,
Tab 35, Initial Decision (ID). Neither party petitioned for review, and the initial
decision became the Board’s final decision. See 5 C.F.R. § 1201.113 .
3
¶3 On May 31, 2017, the appellant filed a petition for enforcement alleging
that the agency was in noncompliance because it miscalculated the performance
award it owed him, failed to award him a quality step increase (QSI), and failed
to pay him a special act award. Lollar v. Department of Homeland Security ,
MSPB Docket No. DA -1221 -14-0324 -C-1, Compliance File (CF), Tab 1 at 7 -16.
The administrative judge issued a compliance initial decision granting the
appellant’s petition for enforcement in part. CF, Tab 6, Compliance Initial
Decision (CID). She found the agency in compliance as to the performance
award and the QSI but in noncompliance as to the special act award. CID at 4 -7.
She therefore ordered the agency to calculate and pay the appellant a special act
award. CID at 7.
¶4 The agency has filed a petition for review, arguing that it should not be
required to pay the appellant a special act award because this relief was not
speci fied in the ordering paragraphs of the merits initial decision. Lollar v.
Department of Homeland Security , MSPB Docket No. DA -1221 -14-0324 -C-1,
Compliance Petition for Review (CPFR) File, Tab 1; ID at 45 -46. The appellant
has filed a response in opposition, as well as a cross petition for review disputing
the administrative judge’s findings on the perform ance award calculation .2 CPFR
File, Tab 3.
ANALYSIS
The agency’s petition for review is denied.
¶5 In her compliance initial decision, the administ rative judge found that the
agency was in noncompliance concerning the special act award. CID at 6 -7. She
found it undisputed that the agency had taken no action to calculate or pay the
appellant a special act award. CID at 6. Although the agency conte nded that it
2 The appellant does not appear to dispute the administrative judge’s finding of
compliance regarding the QSI.
4
was not required to do so because the initial decision’s ordering paragraphs
contained no mention of a special act award, the administrative judge found that
it was otherwise clear from the initial decision that she had granted corrective
action in this regard. CID at 6 -7. She therefore ordered the agency to calculate
and pay the appellant a special act award and to provide the appellant evidence of
its compliance. CID at 7.
¶6 On petition for review, the agency maintains that, under the terms of the
initial decision, it is not required to pay the appellant a special act award. CPFR
File, Tab 1. The agency argues that it is only required to comply with the
directions in the initial decision under the section captioned “Order.” Id. at 5 -6.
The agency also disputes the administrative judge’s finding that it was “clear”
that she intended the agency to pay the appellant a special act award. Id. at 7.
The agency argues that, if this were the administrative judge’s intention, she
should have incl uded this in the ordering paragraphs of the initial decision
because “the agency cannot be expected to sift through dicta in the merits [initial
decision] to discern the [administrative judge ’s] intent.” Id. The agency further
argues that the appellant is essentially using the petition -for-enforcement process
to challenge the outcome of the merits proceedings , an approach that the Board
has rejected in the past. CPFR File, Tab 1 at 4 -5, 7-9; see, e.g. , Jones v.
Department of the Navy , 50 M.S.P.R. 398 , 400 (1991) . The agency argues, in the
alternative, that the compliance initial decision ’s grant of a special act award be
invalidated due to vagueness because the administrative judge did not specify an
amount for the award. CPFR File, Tab 1 at 9.
¶7 For the following reasons, we disagree with the agency. First, to the extent
that the agency is arguing that the analysis section of an initial decision is dicta,
we disagree. Although there may be dicta contained in an administrative judge’s
analysis, t hose holdings and findings necessary for the administrative judge to
reach her decision are not. Cf. Black’s Law Dictionary (10th ed. 2014)
(definition of “dictum”). Second, we disagree with the agency that the initial
5
decision was in any way unclear on this point. Although not under the heading
“Order,” the initial decision specifically states, “the appellant’s request for
corrective action with regard to [the special act award] is granted.” ID at 32. We
fail to see what is unclear about this. Third, the Board will not allow obvious
omissions in an order to serve as a loophole for parties to avoid the obligations
imposed by an initial decision. See Shenwick v. Department of State , 90 M.S.P.R.
192, ¶ 6 n.1 (2001) . Initial decisions, like other legal documents, should be read
and interpreted as a whole. See Webster v. Department of the Army , 911 F.2d
679, 687 -88 (Fed. Cir. 1990). We find that the special act award fell properly
within the scope of the petition for enforcement and that the petition was not an
attempt to expand the relief to which th e appellant is entitled under the terms of
that decision. For these reasons, and in light of the remedial nature of the
Whistleblower Protection Act and the Board’s broad remedial and enforcement
authority, see generally, Tram v. U.S. Postal Service , 118 M.S.P.R. 388 , ¶ 7
(2012) ; Weed v. Social Security Administration , 110 M.S.P.R. 468 , ¶ 5 (2009) ,
Porter v. Department of the Treasury , 80 M.S.P.R. 606 , ¶ 10 (1999) , we agree
with the administrative judge ’s finding of noncompliance.
¶8 As for the alleged vagueness of the administrative judge ’s order, although
she did not specify an amou nt for the special act award, this is not at all unusual
for a remedial order and in no way renders it invalid. The agency is in possession
of all the information necessary to calculate the award, and it will do so in good
faith in accordance with the administrative judge ’s instructions. CID at 7. The
agency’s petition for review is denied .
The appellant’s cross petition for review is denied.
¶9 In her merits initial decision, the administrative judge found that the
appellant earned a summary performance ra ting of “achieved excellence” for
fiscal year 2012, and that he received a 16 -hour time -off performance award. ID
at 26-28. However, she also found that the appellant had received greater awards
for the same summary rating in prior years, and t hat three out of five similarly
6
situated employees had received greater awards than the appellant in fiscal year
2012. ID at 27 -28. The administrative judge found that the appellant was
entitled to corrective action as to the performance award, and she ordered the
agency to grant the appellant an additional cash or time -off award for fiscal year
2012, consistent with applicable policies and regulations, and consistent with the
awards granted to other employees with the same performance rating. ID
at 30, 45.
¶10 In her compliance initial decision, the administrative judge found that the
agency complied with her order by paying the appellant a $1,000 cash award and
increasing his time -off award from 16 to 24 hours.3 CID at 4. She found that this
performance award was consistent with the awards given to the five comparator
employees. CID at 4 -5. Although the appellant argued that these comparator
employees were not unit chiefs like he was, the administrative judge found that
the appellant had not filed a petition for review of the merits initial decision to
challenge the propriety of the comparators. CID at 4.
¶11 On cross petition for review, the appellant argues that, instead of basing the
performance award on wha t the comparator employees received for fiscal year
2012, the agency should instead have based the performance award on what he
had received in fiscal year 2010. CPFR File, Tab 3 at 24. The appellant’s
proffered method would result in a cash award of $3, 000 and a time -off award of
40 hours. Id. at 23 -24.
¶12 Putting aside the issue of whether the appellant missed his opportunity to
challenge the identity of the comparators, we find that the method of calculation
that the administrative judge ordered, and tha t the agency applied, was more
appropriate than the method that the appellant now proffers. Specifically,
performance awards are heavily dependent on factors specific to the performance
3 Because the appellant was no longer employed by the agency, the agency paid him the
cash equivalent of the increased time -off award. CID at 4.
7
year in question; these include the funding available for such awards and the
number of employees among whom these funds must be distributed. See
Memorandum for Heads of Executive Departments and Agencies, Guidance on
Awards for Fiscal Years 2011 and 2012 , from John Berry, Director, Office of
Personnel Management (June 10, 2011), https://chcoc.gov/content/guidance -
awards -fiscal -years -2011 -and-2012 . We recognize that , unlike the appellant,
none of the five comparators were unit chiefs. How ever, in the absence of any
evidence to show that this fact would have figured prominently into the
performance award calculation, we find that the awards that the agency paid to
the comparators in 2012 provide a better benchmark for relief than the awar d that
it paid the appellant 2 years earlier.4 Because the $1,000 cash and 24 -hour
time -off performance awards match those given to the most highly awarded
comparators, we agree with the administrative judge that the agency is in
compliance with respect to the appellant’s 2012 performance award. ID at 27;
CID at 3 -5.
¶13 The appellant appears to raise some other matters on cross petition for
review that do not warrant any action at this time. To the extent that the
appellant is requesting sanctions against th e agency, CPFR File, Tab 3 at 26, we
find that sanctions are not appropriate at this time, see generally 5 C.F.R.
§ 1201.43 . To the extent that the appellant is requesting leave to seek attorney
fees related to these enforcement proceedings, CPFR File, Tab 3 at 26, he may
file a motion for attorney fees under the procedures of 5 C.F.R. § 1201.203 . The
appellant’s cross petition for review is denied .
4 Under the appellant’s proffered method of calculation, his designation as unit chief
would have entitled him to approximately double the performance awa rd of other
otherwise similarly situated GS -14s. We find this to be inherently unlikely .
8
ORDER
¶14 We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This e vidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183 (a)(6)( i), including
submission of evidence and a narrative statement of compliance. The agency’s
submission shall demonstrate that it properly calculated the appellant’s special
act award and that the back pay awarded to the appellant reflects that calculation.
The agency must serve all parties with copies of its submission.
¶15 The Board will assign a new docket number to this matter, MSPB
Docket No. DA-1221 -14-0324 -X-1. All subsequent fili ngs should refer to the
new docket number set forth above 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 .
¶16 The appellant may respond to the agency ’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183 (a)(8). If the appellant does not respond to the agency’s evi dence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶17 The agency is reminded that if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s rep resentative may
be required to appear before 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 c ase. 5 C.F.R. § 1201.183 (c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
9
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).
¶18 This Order does not constitute a final order and is therefore not subject to
judicial review und er 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LOLLAR_CLIFTON_D_DA_1221_14_0324_C_1_ORDER_2060421.pdf | 2023-08-17 | null | DA-1221 | NP |
2,785 | https://www.mspb.gov/decisions/nonprecedential/WESTLING_KRISTEN_A_DE_0432_18_0229_I_1_FINAL_ORDER_2060527.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KRISTEN A. WESTLING,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DE-0432 -18-0229 -I-1
DATE: August 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Southworth , Esquire, and Ronica Scales , Esquire, Atlanta, Georgia,
for the appellant.
John D. Norquist , Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision that
reversed the appellant’s removal for unacceptable perfor mance under 5 U.S.C.
chapter 43 and found that she failed to prove her affirmative defenses of
discrimination based on sex and disability, retaliation for equal employment
1 A nonprecedential order is one that the Board has de termined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisio ns. In contrast, a
precedential decision issued as an Opinion and 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
opportunity (EEO) activity, and reprisal for whistleblowing. 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 durin g 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 consider ing the filings in this appeal , we GRANT IN
PART and DENY IN PART the agency’s petition for review. We REVERSE the
initial decision’s holding that the agency failed to prove that its revised
performance standards were valid and instead FIND the revised standards valid .
However, we still DO NOT SUSTAIN the appellant’s removal, as we FIND that
the agency failed to provide her with a reasonable opportunity to demonstrate
acceptable performance under the revised and substantially different performanc e
standards . We AFFIRM the findings of the initial decision concerning the
appellant fail ing to prove her affirmative defenses.
BACKGROUND
¶2 The appellant worked as a grade 12 Auditor for the agency’s Defense
Contract Audit Agency (DCAA) . Initial Appeal File (IAF), Tab 8 at 19. In this
position, the appellant performed audits on Government contractor proposals and
provided information and analysis for audit reports . IAF, T ab 25 at 23-35,
Tab 32, Hearing Testimony (HT) ( testimony of K.H.).
¶3 For the period of July 1, 2016 , through February 6, 2017 , the agency rated
the appellant’s performance as unacceptable in two critical elements of her
performance standards, Critical Element 4 ( Communicat ion and Organizational
3
Support) and Critical Ele ment 5 ( Working Relationships ). IAF, Tab 25 at 11 -12.
Effective March 15, 2017, the agency placed the appellant on a 90 -day
performance improvement plan (PIP) due to her unacceptable performance. Id.
at 16-20. The PIP notice identified the standard that the appellant needed to meet
to achieve at least minimally successful performance in both critical elements,
outlined how management would assist her , and warned that failure to improve to
the minimally successful performance level in both critical el ements could result
in administrative action. Id.
¶4 On June 30, 2017, the agency advised the appellant that she successfully
completed her PIP. Id. at 21 -22. T his memo randum stated in relevant part :
Although you successfully completed the PIP at the o verall Fully
Successful level, your performance in each of the current Critical Job
Elements: Communication and Organizational Support and Working
Relationships , must not become unacceptable within a one -year
period from the beginning of the PIP. If your performance becomes
unacceptable within the one -year period, management may proceed
with a proposal to remove you from Federal service without another
PIP. Note that your performance in the future will be evaluated
under the revised Performance Standards that became effective on
April 1, 2017, and which have been provided to you. Under those
revised standards, any performance below the Fully Successful level
is considered to be unacceptable.
Id. (emphasis in original). As a result, the performance stan dards that the
appellant was held to prior to and during the PIP were no longer in effect after the
PIP concluded.
¶5 On January 23, 2018, the agency advised the appellant that she was
performing at an unacceptable level in Critical Element 5. Id. at 36 -37. On
February 13, 2018, the agency proposed the appellant ’s removal for unacceptable
performance under 5 U.S.C. chapter 43 , alleging that her performa nce on Critical
Element 5 of the revised standards was unacceptable from Jun e 14 through
December 15, 2017 . Id. at 38 -42. After the appellant’s re ply to the proposal , the
4
agency removed her, effective April 9, 2018. IAF, Tab 18 at 10 -28, Tab 25
at 43-46.
¶6 The appellant filed this Board appeal contesting her removal, along with
raising the affirmative de fenses of discrimination based on sex and disability,
retaliation for EEO activity, reprisal for whistleblowing, and harmful procedural
error. IAF, Tab 1, Tab 27 at 2. After holding a hearing, HT, the administrative
judge issued an initial decision rever sing the appellant’s removal , IAF , Tab 34,
Initial Decision (ID). Specifically, the administrative judge found that the agency
did not meet its burden of proving that it applied a valid performanc e standard to
the appellant. ID at 5 -12. The administrati ve judge further determined that the
appellant did not meet her burden of proving any of her affirmative defenses.2 ID
at 12 -27. The agency’s petition for review of the initial decision followed.
Petition for Review (PFR) File, Tab 1.3 The appellant did not respond to the
agency’s petition for review, nor did she file a cross petition for review.
2 The administrative judge did not address the appellant’s claim of harmful procedural
error, as he reversed the removal on other grounds. ID at 12 n.6. The appellant does not
raise harmful procedural error on review, and we find no reason to now addr ess this
affirmative defense. See Van Prichard v. Department of Defense , 117 M.S.P.R. 88 ,
¶¶ 1, 25 (2011) (finding no error in the administrative judge’s failure to address the
appellant’s harmful procedural error affirmative defense when the appellant’s removal
was reversed on other grounds), aff’d , 484 F. App’x 489 (Fed. Cir. 2012) .
3 After the record closed on review, the agenc y requested leave to file a motion
challenging, for the first time in this case, the administrative judge’s authority to
adjudicate the appeal under the Appointments Clause of the U.S. Constitution. PFR
File, Tab 5 at 3. In support, the agency argued tha t in Carr v. Saul , 593 U.S. ___,
141 S. Ct. 1352 (2021), which was decided after the record closed on review, the U.S.
Supreme Court held that litigants are not required to exhaust Appointments Clause
claims before administrative judges in order to assert those claims at the “appellate
level.” PFR File , Tab 5 at 3. In McClenning v. Department of the Army , 2022 MSPB 3 ,
we found that the absence of an issue -exhaustion requireme nt in nonadversarial Social
Security Administration disability benefits proceedings identified in Carr did not
control in the context of Board appeals, where Appointments Clause claims must be
raised prior to the close of the record before the administrati ve judge. Id., ¶¶ 8 -22, 25.
Further, nothing prevented the agency from raising a timely Appointments Clause claim
on appeal. We therefore deny the agency’s request due to the reasons stated in
McClenning , and the agency’s failure to show that its argume nt is new and material and
5
ANALYSIS
¶7 To prevail in a Board appeal of a performance -based action under 5 U.S.C.
chapter 43, an agency must prove by substantial evidence4 that: (1) the Office of
Personnel Management (OPM) approved its performance appraisal system and
any significant changes thereto; (2) the agency communicated to the employee the
performance standards and critical elements of h er position; (3) the employe e’s
performance standards are valid; (4) the appellant’s performance during the
appraisal period was unacceptable in one or more critical elements; (5) the agency
warned the employee of the inadequacies of h er performance during the appraisal
period and ga ve h er a reasonable opportunity to demonstrate acceptable
performance; and ( 6) after an adequate improvement period, the employee’s
performance remained unacceptable in one or more of the critical elements for
which the agency provided h er an opportunity t o demonstrate acceptable
performance. Lee v. Department of Veterans Affairs , 2022 MSPB 11 , ¶ 15.5 In
the initial decision, the administrative judge reversed the appellant’s removal
based solely on his finding that the agency did not prove the validity of its
was not readily available before the record closed. See Durr v. Department of Veterans
Affairs , 119 M.S. P.R. 195 , ¶ 23 (2013); 5 C.F.R. § 1201.114 (a).
4 Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adeq uate to support a conclusion,
even though other reasonable persons might disagree. This is a lower standard of proof
than preponderance of the evidence. 5 C.F.R. § 1201.4 (p).
5 In the i nitial decision, the administrative judge cited the Board’s existing standard for
chapter 43 actions, which did not include a requirement to prove that the appellant’s
performance during the appraisal period was unacceptable in one or more critical
element s. ID at 4 , 5 n.2 . However, while this matter was pending before the Board on
petition for review , our reviewing court recognized that additional element of an
agency’s burden of proof under chapter 43. Santos v. National Aeronautics and Space
Administration , 990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021). The Federal Circuit’s
precedent in Santos applies to all pending cases, regardl ess of when the events at issue
took place. Lee, 2022 MSPB 11 , ¶ 16. Our decision in this appeal does not depend on
the additional e lement recognized in Santos , and therefore the result would be the same
under Santos or the pre -Santos standard.
6
revised performance standards for Critical Element 5 . ID at 5-12. The
administrative judge did not address the other elements . ID at 12 n.4.
We find that the agency’s revised performance standards for Critical Element 5
are valid.6
¶8 Performance standards, to the maximum extent feasible, must permit the
accurate evaluation of job performance on the basis of an objective criteria.
5 U.S.C. § 4302 (c)(1). Under this objectivity requirement, in order to b e valid,
performance standards must be reasonable, adequate under the circumstances to
allow accurate measurement of the employee’s performance, and sufficient to
inform the employee of what he must do to achieve a satisfactory or acceptable
rating. Wilso n v. Department of Health and Human Services , 770 F.2d 1048 ,
1052 (Fed. Cir. 1985) ; see Eibel v. Department of the Navy , 857 F.2d 1439 , 1443
(Fed. Cir. 1988) (discussing how performance standards can be “fleshed out”
through other means) .
¶9 In this case, the agency’s three -tier appraisal system rates performance at
the “exceeds fully successful,” “fully successful,” and “unacceptable” level s.
IAF, Tab 25 at 23 -30. The revised performance standards for C ritical Element 5 ,
to which the agency held the appellant when mak ing its determination to remove
her for unacceptable performance, state that in order to be fully successful :
Auditor generally performs the following with basic initial
supervisory guidance: a) demonstrates an attitude of cooperation in
responding to man agement requests and follows through with
commitments; b) supports and promotes DCAA core values; c) takes
the initiative to work with team members to improve processes and
to make value -added contributions to DCAA and Field Audit Office
6 On review, the agency argues that the administrative judge exceeded his authority by
assessing the validity of its performance standards and claims that only OPM has the
discretion to make such a determination. PFR File, Tab 1 at 6 -8. The agency’s
contention s are misplaced, as longstanding precedent clarifies that in order to prevail on
a Board appeal of an action taken under chapter 43, an a gency must prove by
substantial evidence the validity of its performance standards. See, e.g ., Eibel v.
Department of the Navy , 857 F.2d 1439 , 1441 (Fed. Cir. 1988); Burnett v. Department
of Health and Human Services , 51 M.S.P.R. 615 , 618 (1991).
7
Participative Work Team objectives and efforts; d) in collaboration
with team members, works to resolve team issues and make process
improvements; e) participates in the identification of contractor(s) or
types of audits for which he/she may serve as the lead auditor;
f) effectively participates with other team members by providing
updates on the status of audit assignments, sharing information, and
assisting other auditors ; g) maintains working relationships that
reflect “One Agency” philosophy; h) contributes by actively
participating in staff meetings, briefings, conference s[,] and/or
workshops; i) may serve as a lead auditor for the entire audit, or
sections of the audit, by appropriately providing coordination,
advice, a nd assistance to other team mem bers; j) effectively and
efficiently performs other duties as assigned to support the Agency
goals.
Id. at 35.
¶10 In the initial decision, the administrative judge found these revised
performance stan dards for Critical Element 5 invalid because they did not provide
adequate guidance on what was required of the appellant to achieve the “fully
successful” performance level , nor could the agency “flesh out” the specifics of
this performance level through other means . ID at 8-12. Upon our review , we
find that the administrative judge erred in his analysis and overall finding. The
revised performance standards for this critical element allow an accurate
measurement of the appellant’s performance, and in conjunction with other
material provided to the appellant by her supervisor, sufficiently informed her of
what she had to do to achieve an acceptable rating .
¶11 In Dancy v. Department of the Navy , 55 M.S.P.R. 331 , 335 (1992), the
Board found performance standards valid that included terms such as “frequent,”
“poor quality,” and “good quality,” as the terms are self -evident, and to the extent
they were not, they wer e susceptible to further clarification by management in the
day-to-day communications regarding an employee’s work. This reasoning holds
true in this instant case, as the appellant’s revised performance standards for
Critical Element 5 contain terms such as “generally,” “actively,” “app ropriately,”
“effecti vely,” and “ efficiently.” IAF, Tab 25 at 35. To the degree that these
8
terms are not self -evident, the agency may give content to an employee’s
otherwise valid performance standards by informing h er of specific work
requirements through written instructions, information concerning deficiencies
and methods of improving performance, memoranda describing unacceptable
performance, and responses to h er questions concerning performance. Baker v.
Defense Logistics Agency , 25 M.S.P.R. 614 , 617 (1985), aff’d , 782 F.2d 1579
(Fed. Cir. 1986). T he agency did this when it issued the appellant a progress
review on January 23, 2018 , which detailed five instances in which the
appellant’s performance failed to meet the “fully successful” level on Critical
Element 5. IAF, Tab 25 at 36 -37.
¶12 Further, t he degree of objectivity and specificity required in performance
standards depends on the nature of the job involved; professional, scientific, and
technical jobs, which require the incumbent to exercise greater discretion and
independence, a re difficult to evaluate based on performance standards that are
strictly objective, and the standards for such positions may require a degree of
subjective judgment that would not be necessary or proper in a position of a less
professional or technical na ture. Greer v. Department of the Army , 79 M.S.P.R.
477, 483 -84 (1998). This principle applies herein, as the appellant’s position as
an Auditor is technical in nature. IAF, Tab 25 at 31 -35. The critical element at
issue deals primarily with communication , support, and working relationships,
meaning it is not susceptible to strictly objective, quantitative ratings. Id. at 35.
¶13 We therefore find that the revised performance standards for Critical
Element 5 are reasonable, adequate under the circumstances to allow a n accurate
measurement of the appellant’s performance and , when measured with the other
material issued to the appellant , sufficient to inform her of what she had to do to
achieve an acceptable rating. Accordingly, we reverse the initial decision to the
extent it found the revised performance standards for Critical Element 5 are
invalid under 5 U.S.C. § 4302 (c)(1). See Diprizio v. Department of
Transportation , 88 M.S.P.R. 73 , ¶¶ 9-13 (2001) (vacating the administrative
9
judge’s finding that performance standards were invalid, as the agency cured any
vagueness in the standards through additional materials issued to the appellant).
The agency did not prove by substantial evidence that it prov ided the appellant
with a reasonable opportunity to demonstrate acceptable performance under the
revised and substantially different performance standards for Critical Element 5 .
¶14 In the initial decision , the administrative judge did not analyze whether t he
agency met its burden of proving by substantial evidence that it warned the
appellant of the inadequacies of h er performance during the appraisal period and
gave h er a reasonable opportunity to demonstrate acceptable performance before
removing her for unacceptable performance under chapter 43 . ID at 12 n.4; see
Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 5 (2010) .
However, we find the record is sufficient ly developed to address this issue on
review. See Campbell v. Department of the Army , 123 M.S.P.R. 674 , ¶¶ 14-21
(2016) ( analyzing on review an issue that was not explicitly addressed by the
administrative judge in the initial decision and not raised in the petition for
review ). An employee’s right to a reasonable opportunity to improve ha s long
been recognized as one of the most vital substantive rights in the chapter 43
performance appraisal framework. Sandland v. General Services Administration ,
23 M.S.P.R. 583, 590 (1984); see 5 U.S.C. § 4302 (c)(6) ; 5 C.F.R. § 432.104 .
¶15 As noted above, the agency issued the appellant revised performance
standards for Critical Element 5 during her PIP. IAF, Tab 25 at 21-22, 35. These
revised standards substantially differ from the standards in place prior to and
during the appellant’s PIP. For example, t he previous performance standards for
this critical element outlined five areas that an Auditor had to generally perform
to be rated “fully successful ”:
The Auditor generally does the following: (a) responds positively to
requests and follows through with commitments; (b) shares
information on audit matte rs with co -workers; (c) supports Field
Audit Office and Participative Work Team practices, objectives, and
decisions; (d) contributes to meetings by being prepared to discuss
the agenda, being receptive to new ideas, providing feedback and
10
helping to stay organized and focused; and (e) helps in the
development of co -workers.
Id. at 27. The revised standards for Critical Element 5 , outlined supra ¶ 9,
contain ten areas that an Auditor ha s to generally perform to be rated “fully
successful,” and includ es new responsibilities, notably participating in the
identification of contractor (s) or types of audits for which she may serve as a lead
auditor , serving as a lead auditor, promoting DCAA core values and the “One
Agency” philosophy , and working on process improvements . Id. at 35. The
revised standards also changed the name of Critical Element 5 from “Working
Relationships” to “Int ernal Communication and Support, ” further evidencing that
the revised standards encompassed broader duties and responsibilities Id. at 27,
35. Indisputably , the revised standards substantially differ from the standards
that the appellant was held to before and during her PIP.
¶16 When an agency issues revised performance standards that substantially
differ from those applicable prior to and during a reasonable opportunity to
improve period, it must provide the employee with a reasonable evaluation period
under the revised standards, and if her performance remains unacceptable, a new
reasonable opportunity to demonstrate acceptable performance under the revised
standards before taking an action under chapter 43. Boggess v. Department of the
Air Force , 31 M.S.P.R. 461 , 462 -66 (1986); see 5 U.S.C. § 4302 (c)(6); 5 C.F.R.
§ 432.104 . In this case, we find that the agency provided the appellant with a
reasonable evaluation period under the revised and substantial ly different
performance standards , but it failed to provide her with a reasonable opportunity
to demonstrate acceptable performance under these standards before removing her
under chapter 43.
¶17 For example, o n January 23, 2018, t he agency evaluated the ap pellant under
these revised and substantially different standards and determined that she
performed at an unacceptable level in Critical Element 5 from June 14 through
December 15, 2017. IAF, Tab 25 at 36 -37. This was the first time that the
11
agency provided any detailed notice to the appellant of her deficient performance
under the revised standards. However , instead of then providing the appellant
with a reasonable opportunity to demonstrate acceptable performance under the
revised standards (e.g., a new PIP) , the agency proposed the appellant’s removal
under chapter 43 on February 13, 2018 . Id. at 38 -42.
¶18 Because the agency never provided the appellant with a reasonable
opportunity to demon strate acceptable performance under the revised and
substantially different performance standards , we reverse the appellant’s
removal.7 See Boggess , 31 M.S.P.R. at 462-63 (stating that the administrative
judge was correct in finding that the appellant was entitled to, among other
things, a reasonable opportunity to improve after his performance was rated as
deficient under the substantially different and revised performance standards
before the agency could properly initia te a chapter 43 action based on his
unacceptable performance) .8
The appe llant failed to prove any of her affirmative defenses.
¶19 In the initial decision, the administrative judge consid ered the evidence of
record9 and concluded that the appellant did not prove her affirmative defenses of
7 In light of our conclusion tha t the appellant was not given a reasonable opportunity to
improve, we need not address the other elements that the agency needed to prove to
substantiate a removal under chapter 43.
8 On review, the agency argues that the administrative judge erred by reversing the
appellant’s removal and instead should have sent the action back to the agency to
initiate removal proceedings for unacceptable performance under chapter 75. PFR File,
Tab 1 at 12 -13. The agency provided no support for this argument. In ge neral, an
agency may rely on either 5 U.S.C. chapter 75 or c hapter 43 to take a
performance -based action. Lovshin v. Department of the Navy , 767 F.2d 826 , 843 (Fed.
Cir. 1985) (en banc). The agency made the decision in this case to proceed with the
appellant’s removal under chapter 43, IAF, Tab 25 at 38 , meaning the administrative
judge correctly adjudicated this appeal under the chap ter 43 frame work.
9 The administrative judge’s findings included credibility determinations. ID at 15 -18,
21-23, 27; see Aldridge v. Department of Agriculture , 111 M.S.P.R. 670 , ¶ 11 (2009)
(holding that , because the administrative judge heard live testimony, his credibility
12
discrimination based on sex a nd dis ability, retaliation for EEO activity, and
reprisal for whistleblowing.10 ID at 12 -27. The appellant has not filed a petition
or cross petition for review contesting these findings. Upon our review, we find
no reason to disturb the administrative judge’s conclusions on the se affirmative
defenses.11 See Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016 )
(finding no reason to d isturb the administrative judge’ s findings where she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions) ; Broug hton v. Department of Health and Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same).
ORDER
¶20 We ORDER the agency to cancel the removal action and to retroactively
restore the appellant , effective April 9, 2018 . See Kerr v. National Endowment
determinations must be deemed to be at least implicitly based on the demeanor of the
witnesses).
10 In the initial decision, the administrative judge found that the appellant proved by
preponderant evidence that the agency perceived that she engaged in protected activity
under 5 U.S.C. § 2302 (b)(9)(C) and that such perception was a contributing factor in
her removal. ID at 19-24; see Corthell v. Department of Homeland Security ,
123 M.S. P.R. 417 , ¶ 13 (2016) (outlining how an appellant who is perceived to have
engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(C) is entitled to the
protections of the whistleblower protection statutes). The administrative judge cited the
relevant legal authority and concluded that the agency proved by clear and convincing
evidence that it would have removed the appellant in the ab sence of her perceived
protected activity. ID at 21 -24. The appellant does not challenge the administrative
judge’s findings in this regard, and we discern no error in his analysis. However, to the
extent that the administrative judge improperly stated in the initial decision that the
appellant failed to prove by preponderant evidence that the agency engaged in
whistleblower reprisal, ID at 24, any such adjudicatory error 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).
11 Because we discern no error with the administrative judge’s finding that the appellant
failed to show that discrimination and/or retaliation was a motivating factor in the
agency’s decision to remove her, we do not reach the question of whether
discrimination and/or retaliation was a “ but-for” cause of the removal action. Pridgen
v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 22, 31.
13
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.
¶21 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 t here 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.
¶22 We further ORDER the agency to tell the ap pellant 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).
¶23 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 issue d 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).
¶24 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
14
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 REQUES T
ATTORNEY FEES AND CO STS
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 mo tion 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 RIG HTS12
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 Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
12 Since the issuance o f the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your p articular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial revi ew of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petition ers and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our webs ite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
16
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such a ction
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. C ourt of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waive r of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed th rough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you recei ve
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.13 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
13 The original statutory provisi on that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellant s to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroac tive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 awa rd. 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 ba ck 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 docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee 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 a nnuity payments, refunds of CSRS/FERS employee premiums,
or severance pa y 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 le ave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to proc ess
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 amou nt 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 emplo yee 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 include d 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. | WESTLING_KRISTEN_A_DE_0432_18_0229_I_1_FINAL_ORDER_2060527.pdf | 2023-08-17 | null | DE-0432 | NP |
2,786 | https://www.mspb.gov/decisions/nonprecedential/ANDREWS_DAVID_R_DE_844E_21_0177_I_1_FINAL_ORDER_2059909.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID R. ANDREWS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-844E -21-0177 -I-1
DATE: August 16, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leah B. Kille , Esquire, Lexington, Kentucky, for the appellant.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 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 final decision
of the Office of Personnel Management (OPM) denying the appellant’s
application for a Federal Employees’ Retirement System disability retire ment
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
annuity . On petition for review, the agency argues that the appellant’s condition
was “situational” and that he failed to prove that any disability was expected to
continue for 1 year from the date of his disability retirement application. In his
cross petition for review , the appellant requests interim relief . Generally, we
grant petitions such as this one only in th e following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an e rroneous 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
procedure s or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the 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 und er section 1201.115 for granting the
petition or cross petition for review. Therefore, w e DENY the petition for review
and the cross petition for review. Except as expressly MODIFIED to decline to
consider an argument the agency raises for the first time on review and to find
that our final decision renders moot the appellant’s request for interim relief , we
AFFIRM the initial decision.
¶2 In her initial decision, the administrative judge concluded, as relevant here,
that the appellant proved that his medi cal conditions were incompatible with
useful and efficient service in his position . Initial Appeal File (IAF), Tab 25,
Initial Decision (ID) at 10 -13. She also found that he established that his
condition was expected to continue for at least 1 year from the date he filed his
disability retirement application. ID at 13 -14. For the first time on review, OPM
challenges the probative value of a n August 3, 2021 letter from the appellant’s
treating physician. Petition for Review (PFR) File, Tab 1 at 10 -11. Under
5 C.F.R. § 1201.115 , the Board generally will not consider evidence or argument
3
submitted for the first time with a petition for review absent a showing that it was
unavailable be fore the record was closed before the administrative judge despite
the party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 ,
213-14 (1980). OPM has not explained why it did not raise this argument below .
The letter appeared in the record below , and the administrative judge specifically
explained that OPM could address the issue in written closing arguments. ID
at 12 & n.5; IAF, Tab 17 at 16-18. Therefore, OPM has not shown that the newly
submitted argument was unavailable before the close of record despite its due
diligence, and we decline to consider it on review.
¶3 The appellant has filed a cross petition for review, seekin g interim relief
while the agency’s petition for review was pending . PFR File, Tab 3 at 12 -14.
The agency has not responded to the cross petition for review.
¶4 The administrative judge declined to order interim relief despite the
appellant’s status as a prevailing party , citing Steele v. Office of Personnel
Management , 57 M.S.P.R. 458 (1993), aff’d per curiam , 50 F.3d 21 (Fed. Cir.
1995) (Table) . ID at 16. As the Board explained in Steele , 57 M.S.P.R. at 463,
under 5 U.S.C. § 7701 (b)(2)(A)(i), an administrative judge has discretion
regarding whether to order interim relief. In making her decision, she must
balance the benefits and burdens to the parties anticipated by the process of
effecting the orde r. Id.
¶5 Here, we need not consider the propriety of the administrative judge’s
decision not to order interim relief, because by virtue of this order, the appellant
is receiving the only remedy to which he is entitled, i.e., an order that OPM award
him a disability retirement annuity. By statute, such an annuity “commences on
the day after separation from the service or the day after pay ceases .” 5 U.S.C.
§ 8464 (a)(1)(C) . Here, the appellant began an exte nded period of leave without
pay in December 2019 . IAF, Tab 10 at 78. He states that he has not worked
since that time. PFR File, Tab 3 at 7. A qualified disability annuitant like the
appellant may be entitled to receive benefits retroactive to a date prior to his
4
separation if his pay ceased . See Young v. Office of Personnel Management ,
99 M.S.P.R. 563 , ¶ 10 (2005). Therefore, any matter related to an interim relief
order appears to be moot . Coffey v. U.S. Postal Service , 77 M.S.P.R. 281 , 285 -86
(1998) (explaining that because an appellant received full relief, any matter
related to its alleged noncompliance with an interim relief order was moot).
Accordingly, we decline to consider the issue further.
ORDER
¶6 For the reasons discussed above, we affirm the initial decision and ORDER
OPM to award the appellant disability retirement benefits. OPM must complete
this action no later than 20 days after the date of this decision.
¶7 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took to carry out the Board’s Order. We ORDER the appellant to provide all
necessary information OPM requests to help it carry out the Boar d’s Order. The
appellant, if not notified, shou ld ask OPM about its progress. See 5 C.F.R.
§ 1201.181 (b).
¶8 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petit ion for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully car ried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
¶9 This is the final decision of the Merit Systems Prot ection Board in this
appeal. 5 C.F.R. § 1201.113 (c).
5
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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 RIG HTS2
The initial decision, as supplemented by this Fi nal 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 situatio n and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing 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 w hich option is most appropriate in any matter.
6
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
7
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receiv es this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national orig in, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. d istrict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, yo u may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request wi th the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request fo r 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 describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 cou rt 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 j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ANDREWS_DAVID_R_DE_844E_21_0177_I_1_FINAL_ORDER_2059909.pdf | 2023-08-16 | null | DE-844E | NP |
2,787 | https://www.mspb.gov/decisions/nonprecedential/GLASS_THOMAS_C_NY_0752_19_0200_I_1_FINAL_ORDER_2059924.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS C. GLASS,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
NY-0752 -19-0200 -I-1
DATE: August 16, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher J. Keeven , Esquire, and Michael Joseph Sgarlat, II , Esquire,
Washington, D.C., for the appellant.
Gabriel A. Hindin and Ashley W. Walker , Washington, D.C., 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
sustained his reduction in grade. For the reasons discussed below, we GRANT
the appellant’s petition for review and REVERSE the initial decision . The
agency’s action is REVERSED.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contra st, a
precedential decision issued as an Opinion and 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
¶2 The appellant served as a Supervisory National Bank Examiner, Level VII ,
with the agency’s New York City office . On March 22, 2019, the Examiner -in-
Charge for Citibank proposed the appellant’s reduction in pay and grade to
National Bank Examiner, Level VI, based on five specifications of conduct
unbecoming a supervisor and three specifications of failure to follow established
policies and procedures.2 Initial Appeal File (IAF) , Tab 9 at 110. The conduct
unbecoming specifications consisted of five instances wherein the agency alleged
that the appellant engag ed in inappropriate conduct with three of his direct reports
and a subordinate regarding work -related matters.
¶3 Following the appellant’s oral and written replies, IAF, Tab 6 at 4 1, 46, on
May 24, 2019, the Deputy Comptroller for Large Banks issued a decision letter in
which he found all five specifications of charge 1, and the charge itself,
sustained. Id. at 35. He did not sustain charge 2. Nonetheless, he determined
that the proposed penalty was appropriate, and the appellant was reduced to a
lower grade, effective July 7, 2019.3 IAF, Tab 6 at 27. The appellant filed an
appeal with the Board . IAF, Tab 1.
¶4 Following the requested hearing, the administrative judge , in her initial
decision , found all five specifications of the charge , and the charge itself,
sustained. IAF, Tab 37, I nitial Decision (ID) at 4-8. She considered, but found
2 The agen cy had previously proposed the identical action against the appellant, with
the same charges and specifications. The same deciding official sustained the proposal
in its entirety and the appellant was reduced in grade, effective August 5, 2018. He
filed a Board appeal, and during adjudication, the agency rescinded the action and
moved for dismissal. With the appellant’s agreement, the administrative judge
dismissed the appeal as moot. Glass v. Department of the Treasury , MSPB Docket No.
NY-0752 -18-0183 -I-1, Initial Decision (Jan. 31, 2019). That decision became the
Board’s final decision on March 7, 2019. The agency proposed the instant action two
weeks later.
3 It is unclear whether the appellant suffered a reduction in pay. IAF, Tab 6 at 27. The
agency states that he did not , Petition for Review File, Tab 3 at 6, and the appellant has
not challenged that assertion.
3
unsupported, the appellant’s claim that the agency denied him due process when
it posted a vacancy announcement for his former position after issuance of the
first proposal notice. ID at 8 -9. The administrative judge found that the agency’s
action promot es the efficiency of the service, ID at 9 , and that reduction in grade
is a reasonable penalty for the sustained charge. ID at 9 -11. Accordingly, she
affirmed the action. ID at 1, 11.
¶5 The appellant has filed a petition for review , Petition for Review (P FR)
File, Tab 1, the agency has responded, PFR File, Tab 3, and the appellant has
replied. PFR File, Tab 4.
ANALYSIS
¶6 An agency may take an action under 5 U.S.C. chapter 75 against an
employee “only for such cause as will promote the efficiency of the serv ice.”
5 U.S.C. § 7513 (a). “Cause” generally connotes some specific act or omission on
the part of the employee that warrants disciplinary action, and an agency action
that does not set forth acti onable misconduct cannot be sustained. Gonzalez v.
Department of Homeland Security , 114 M.S.P.R. 318 , ¶ 10 (2010 ); see Wilson v.
Department of Justice , 66 M.S.P.R. 287 , 297 (1995) (“Regardless of whether the
charged misconduct actually occurred, we agree with the admi nistrative judge ’s
finding that the charged misconduct is not actionable.”); Ray v. Department of the
Army , 97 M.S.P.R. 101 , ¶ 54 (2004) (finding no basis to disturb the
administrative judge ’s conclusion that the charged conduct did not constitute
actionable misconduct), aff’d , 176 F. App’x 110 (Fed. Cir. 2006).
¶7 The appellant in this case was a supervisor and the agency identifies the
four employees mentioned in the specifications as either his direct reports or
otherwise his subordinate. IAF, Tab 6 at 10 -11. The specifications all relate to
the manner in which the appellant dealt with t hese individuals regarding
work -related mat ters.
4
¶8 In specification (1), the agency alleged that the appellant called one of his
direct reports, P.B. , a liar. IAF, Tab 9 at 110. In what is described as
“Background” to this specification, the agency stated that, during a group meeting
with visiting examiners in November 2016, the appellant asked P.B. about his
reporting on information that he had reviewed related to a specific monthly
report; that the appellant addressed P.B. in a scolding manner, questioning which
of P.B.’s two statement s, that he h ad been reviewing the reports or that he had not
been reviewing the reports , was true ; and that the appellant told P.B. that his
explanation was not a good excuse and that he was ill -prepared for the meeting.
The agency did not allege that the events at t he November meeting constituted
misconduct but alleged in the first specification that during a December meeting
the appellant called P.B. a lia r. The statement occurred during P.B.’s annual
performance review. In sustaining this specification, the admin istrative judge
found that the appellant behaved in a manner unbecoming a supervisor. ID at 5.
¶9 Even taking the agency’s version of this incident as accurate,4 the fact
remains that the appellant was discussing his direct report’s performance with
him, and, in that discussion, the appellant indicated that he believed that P.B. had
not been truthful when, during the earlier meeting, he indicated both that he had,
and had not, been reviewing the mon thly reports. The appellant was correct that
it is impossible for both of P.B.’s statements to have been truthful. It is the job of
a supervisor to address the performance of his subordinates and the making of
inaccurate or false statements about a work -related matter is ser ious. Although
the appellant’s language may have been direct or indelicate, that does not make
his conduct actionable. See Ray , 97 M.S.P.R. 101 , ¶ 54 (finding that , while
statements the appellant made to a subordinate regarding matters within his area
4 According to the appellant, during their discussion, P.B. first asked if the appellant
was calling him a liar, to which the appellant replied “Yes, if you prefer that word.”
IAF, Tab 7 at 87 (the appellant’s deposition). Regardless of who first used the word
“liar,” the conduct does not equate to actionable misconduct.
5
of resp onsibility may have been indelicately worded, there is no evidence that the
appellant’s opinion was malicious or offered in bad faith). For these reasons, the
conduct charged in specification (1) is not actionable.
¶10 In specification (2), the agency alleged that, on January 2, 2017, the
appellant was having a discussion with another of his direct reports, Bank
Examiner E.S., in which the appellant sought to clarify how many of a particular
type of work item there were pending , and that when E.S. appeared not to
understand his question, the appellant held up one finger from each hand in her
face and said, loudly enough so that others could hear, words to the effect of
“Here’s one finger and here’s one finger. How many fingers?” IAF, Tab 9 at 10.
In E.S.’s w ritten statement, she indicated that other staff members overheard the
appellant . Id. at 31. In sustaining this specification, the administrative judge
found that the appellant behaved in a ma nner that was disrespectful and that
caused E.S. to feel intimidated and embarrassed. ID at 5-6.
¶11 Again, even taking the agency’s version of the incident as accurate ,5 it
remains true that the appellant was seeking information from a direct report about
a wo rk-related matter, as is within a supervisor’s responsibilities to do. That is so
regardless of whether the appellant ’s statement made E.S. feel uncomfortable.6
To the extent that th e appellant ’s reaction to E.S. may have been exaggerated, it
still does not constitute actionable misconduct. See Ray , 97 M.S.P.R. 101 , ¶ 54.
5 According to the appellant, he was two to three feet away from E.S., he was not
yelling, agitated, or angry, IAF, Tab 7 at 105, and, based on the setup of the work
space, it was unlikel y that anyone overheard the conversation. Id. at 105 -06. He also
stated that P.M.’s “cube” was next to the appellant’s. Id. at 106. The parties stipulated,
however, that, although P.M. was sitting at his desk, adjacent to E.S.’s work station, at
the ti me of the conversation, he had no recollection of it. IAF, Tab 30.
6 A supervisor checking on the status of a work project, holding an employee
accountable for timely completing work, reviewing th e quality of an employee’s work,
and generally exercising supervisory authority over an employee can sometimes make
the employee angry, uncomfortable, frustrated, or embarrassed. The employee’s
reaction to that sort of supervisory oversight does not make the supervi sor’s conduct
improper.
6
¶12 In specification (3), the agency alleged that, on Februa ry 6, 2017, during
another conversation, E.S. asked the appellant a question about a work project to
which he responded, “We have talked about this five times!” IAF, Tab 9 at 111.
Although the parties generally agree as to what the appellant said, they d isagree
about whether the question had previously been addressed.7 In sustaining this
specification, the AJ found that the appellant made it obvious to E.S. that he was
annoyed and angry because of her question, and that he did not behave in a tactful
manner but rather in a way that was unbecoming a supervisor. ID at 6.
¶13 Even taking the agency’s version of the incident as accurate, E.S.’s question
to the appellant , to whom she reported, concerned a work -related matter and his
response to her was in the context of his supervisory role. That is so even if the
appellant ’s response made E.S. feel afraid to ask further questions of him, as she
claimed. IAF, Tab 9 at 132. To the extent that the appellant ’s response reflected
that he was frustrated by the question, it does not amount to actionable
misconduct. See Ray , 97 M.S.P.R. 101 , ¶ 54.
¶14 In specification (4), the agency alleged that, between January and
February 2017, the appellant asked R.T., a subordinate, to schedule a meeting to
include him, the proposing official, and a member of bank management, and that,
after R.T. made several attempts to confirm the appellant ’s at tendance, he
responded to her to the effect that “I told you this three times. We have to go
over this again?” IAF, Tab 9 at 111. Although the parties generally agree as to
what the appellant said, they disagree about his tone.8 In sustaining this
spec ification, the administrative judge found that the appellant was annoyed and
7 In her written stat ement, E.S. said that she did not recall having previously talked
about the matter at issue. IAF, Tab 9 at 132. During his deposition, t he appellant
stated that the question E.S. asked was a simple one that she had repeatedly asked over
a period of days. IAF, Tab 7 at 108.
8 In her written statement, R.T. stated that the appellant raised his voice. IAF, Tab 9
at 134. In his deposition, the appellant stated that he was merely “questioning”
inasmuch as the matter had already been addressed and resolved . IAF, Tab 7 at 126.
7
impatient and made his feelings known to R.T., and that he did not behave in a
tactful manner but rather in a way that was unbecoming to a supervisor. ID at 7.
¶15 Even crediting the agency’s version of the incident as accurate, the
discussion between the appellant and his subordinate concerned the scheduling of
a meeting which is a work -related matter and, in addressing her, the appellant was
acting within the scope of his responsibilities. That is so even though R.T. may
have felt belittled as she claimed. IAF, Tab 7 at 134. To the extent the
appellant ’s response may have reflected that he was annoyed, it did not amount to
actionable m isconduct.
¶16 In specification (5), the agency alleged that, in an email exchange on
May 5, 2016, to L.S., one of the appellant ’s direct reports, he told her to
henceforth submit her questions either to him or another named individual, and to
“PLEASE stop ema iling” C.L. IAF, Tab 9 at 111. The parties do not disagree as
to the content of the email, a copy of which is in the record. Id. at 139. In
sustaining this specification , the administrative judge found that the tone of the
appellant ’s email indicated t hat he was annoyed and that he should have
understood that his email could have been construed that way. ID at 9.
¶17 It is within a supervisor’s responsibility to direct who should be provided
certain information and to whom questions should be addressed. Putting a written
word in all capital letters is generally intended to draw the reader’s attention to it.
To the extent that R.T. found the appellant ’s email “belitting [sic] ” and indicated
that she felt that she had been “beaten up” by it, IAF, Tab 16 a t 41, those feelings
cannot serve to turn the appellant ’s email into actionable misconduct.
¶18 In sum, none of the five specifications that make up the charge cons titute
actionable misconduct and , therefore, the sole charge supporting the agency’s
action cann ot be sustained.9 On this basis, the initial decision is reversed, and the
9 We do not suggest that a supervisor’s conduct may never be actionable and therefore
supportive of discipline, but only that the appellant’s conduct in this case does not rise
to that level.
8
agency’s action is reversed as well. Because the agency has failed to allege or
prove that there is “cause” for action, the Board’s inquiry stops and no other
claims need be reached.10 Gonzalez , 114 M.S.P.R. 318 , ¶ 25; Ray, 97 M.S.P.R.
101, ¶ 54; Wilson , 66 M.S.P.R. at 297.
ORDER
¶19 We ORDER the agency to cancel the appellant ’s reduction in grade and
restore him to his supervi sory position , effective July 7, 2019. See Kerr v.
National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of thi s decision.
¶20 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 O RDER 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 dispu te 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.
¶21 We further ORDER the agency to tell the appellant promptl y 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).
¶22 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
10 Based on this disposition, the Board nee d not consider the appellant’s claims that the
administrative judge fail ed to make credibility findings or address his due process
argument, and did not properly determine the reasonableness of the penalty. PFR File,
Tab 1 at 11, 14 -23, 23 -25.
9
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).
¶23 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accou nting 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 proces s 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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 foun d at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS11
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
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.
10
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Althoug h we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts w ill rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to fil e within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a pet ition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1) (A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C . 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained w ithin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for in formation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 dec ision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fee s, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
12
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 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 p ersonne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.12 The court of appeals must receive your
12 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
13
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.
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 determinatio n, 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 al l 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, wor kers’ 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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agree d 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 incl ude 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 document ation 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 t he 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/Pe rsonnel
Operations at 504 -255-4630. | GLASS_THOMAS_C_NY_0752_19_0200_I_1_FINAL_ORDER_2059924.pdf | 2023-08-16 | null | NY-0752 | NP |
2,788 | https://www.mspb.gov/decisions/nonprecedential/MAGLOIRE_JENEIL_H_AT_0752_19_0778_I_1_FINAL_ORDER_2059999.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JENEIL H. MAGLOIRE,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.
DOCKET NUMBER
AT-0752 -19-0778 -I-1
DATE: August 16, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Robinson , Denver, Colorado, for the appellant.
Carisa LeClair and Jaron E. Chriss , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
sustained the agency ’s charge of absence without leave (AWOL) and mitigated
the appellant ’s removal to a 30 -day suspension. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous findin gs 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 in itial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner ’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this app eal, we 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
¶2 Effective September 30, 2018, t he agency removed the appellant from her
position as a GS -14 Realty Officer in the agency ’s Real Property Utilization and
Dispo sal Division on a single charge of AWOL . Initial Appeal File (IAF), Tab 4
at 4, 5 -9. The charge was supported by 41 specifications alleging that the
appellant had failed to report to work and did not contact her supervisor to
request approval for her abs ences between May 14 and July 16, 2018. Id. at 5-9,
39-46. The appellant filed a formal equal employment opportunity (EEO)
complaint in which she claimed that her removal resulted from disability
discrimination based on her medical conditions of cognitiv e issues, memory loss,
and a nxiety disorder. IAF, Tab 8 at 5-7. On August 16, 2019, t he agency issued
its Final Agency Decision on the appellant ’s EEO complaint, finding that the
agency did not subject the appellant to discrimination on the basis of her
disability. Id. at 8-21. The appellant timely filed this appeal on September 14,
2019. IAF, Tab 1.
3
¶3 After holding a hearing, the administrative judge determined that, on the
earliest date for which the agency charged the appellant as AWOL, she had
exhausted her sick and annual leave . IAF, Tab 43, Initial Decision (ID) at 12.
However, he determined that , during the time that the agency alleged she was
AWOL, the appellant had 35 hours of leave available to her under the Fami ly and
Med ical Leave Act (FMLA ).2 ID at 12 -13. Presuming that the appellant had a
FMLA -qualifying reason for her absence for those 35 hours, the administrative
judge found that the agency established that the appellant would not have had
FMLA leave available for h er use on at least 36 of the 41 days that the agency
alleged she was AWOL. ID at 13. The administrative judge also determined the
agency established that, despite the medical conditions that the appellant
experienced during the time the agency found that she was AWOL, its denial of
leave without pay (LWOP) was reasonable. ID at 17. Because the agency
established that the appellant was absent from work during each day that the
agency alleged she was AWOL, and that it had properly denied her requests for
LWOP on 36 of those days, the administrative judge sustained the AWOL charge.
ID at 17 -18.
¶4 The administrative judge found that the appellant failed to prove that the
agency denied her due process by considering ex parte information. ID at 18 -22.
He al so found that the appellant failed to establish that the agency discriminated
against her on the basis of her disability. ID at 25 -26. The administrative judge
determined that the agency established a nexus between the appellant ’s AWOL
2 Subject to meeting certain certification requirements, the FMLA entitles an employee
to a total of 12 administrative workweeks of leave during any 12 -month period for one
of the FMLA -qualifying reasons, to include caring for a parent who has a serious health
condition or because of a serious health condition that makes the employee unable to
perform the functions of the employee ’s position. 5 U.S.C. § 6382 (a)(1). The
administrative judge determined that, as of April 23, 2018, the appellant had used 445
of her 480 hour s of FMLA -qualifying leave for the year ending January 4, 2019 , leaving
her with 35 hours of remaining entitlement to leave under the FMLA . ID at 12 -13 &
n.2; IAF, Tab 21 at 19 -20.
4
and the efficiency of the service. ID at 10 -11. Nevertheless, he also determined
that the medical evidence the appellant submitted after her removal established
that she had made significant strides during her treatment and had sufficiently
recovered with essentially a cl ean bill of health regarding her cognitive functions.
ID at 29. G iven that recovery, which he observed had happened within a month
of her removal, and her long, successful service history, the administrative judge
found that the penalty of removal exceeded the tolerable bounds of
reasonableness , and he mitigated the penalty to what he determined was the
maximum reasonable penalty , a 30-day suspension . Id.
¶5 In its petition for review, the agency argues that , in mitigating the penalty,
the administrative judge improperly substituted his judgment for that of the
agency. Petition for Review (PFR) File, Tab 1 at 4, 9 -10. The agency contends
that the deciding official carefully considered each of the Douglas factors and
determine d that a lesser penalty was not justified, despite the mitigating factors of
the appellant ’s 28 years of Federal service and work performance . Id. at 10 -11.
It argues that the administrative judge incorrectly used post -removal evidence to
conclude that t he appellant ’s medical condition could be remedied or controlled
and contends that the deciding official reasonably concluded otherwise in
determining that the appellant ’s potential for rehabilitation was poor. Id.
at 14-15. The agency also argues that the administrative judge gave the
appellant ’s post -removal evidence more weight than was warranted under the
circumstances , contending that the post -removal medical evidence had nothing to
do with the events that led to her removal . Id. at 15 -16.
¶6 The appellant filed a motion to file an additional pleading, i.e., a motion to
dismiss the agency ’s petition for review as moot, in which she argued that,
because the agency had exceeded the interim relief that was ordered by the
administrative judge, it h ad effectively removed the action from controversy.
PFR File, Tab 7 at 6 -7, Tab 8 at 4-5. The appellant also contended that, in the
alternative, the agency ’s petition for review should be dismissed because the
5
agency had failed to comply with the adminis trative judge ’s interim relief order
by transferring her to the position of Supervisory Realty Specialist rather than
appointing her to the position of Realty Officer. PFR Fi le, Tab 7 at 8.3 The
appellant has also filed a response to the agency ’s petition for review. PFR File,
Tab 9. The agency has filed a response to the appellant ’s motion to dismiss and a
reply to the appellant ’s response to its petition for review . PFR File, Tabs 13 -14.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly found that the agency proved the AWOL
charge and established the nexus requirement .
¶7 As explained above, the administrative judge found that the agency
established the AWOL charge concerning 36 of the 41 days that it alleged the
appellant w as AWOL . ID at 13 ; Savage v. Department of the Army , 122 M.S.P.R.
3 As an initial matter, we grant the appellant’s motion to file an additional pleading .
However, we deny her motion to dismiss the appeal as moot, or, alternative ly, to
dismiss the agency’s petition for review for failure to demonstrate compliance with the
interim relief order. Even if the agency exceeded the administrative judge ’s interim
relief order, t he agency ’s petition for review is not moot. See Campbell v. U.S. Postal
Service , 95 M.S.P.R. 185 , ¶ 6 (2003) ( stating that the Board will not automatically
dismiss an agency’s petition for rev iew as moot when the agency has in good faith and
inadvertently exceeded the requirements of an interim relief order ).
Regarding the appellant ’s argument that the agency did not comply with the
administrative judge’s interim relief order , the agency alleged that it reinstated the
appellant to the Realty Officer position, and then reassigned her to the position of
Supervisory Realty Specialist with the same duty and pay grade, which it mistakenly
considered to also be a Realty Officer position. PFR Fi le, Tab 13 at 6 -7. It also argued
that the Supervisory Realty Specialist position was within the appellant ’s experience,
and served the agency ’s needs. Id. at 8. The agency asserted that the appellant ’s
original position had been slated to be abolished, and that , because it had a strong and
overriding interest in the appellant ’s reassignment, it had therefore made an implicit
undue disruption determination . Id. at 8 -9; see Purzycki v. General Services
Administration , 81 M.S.P.R. 188 , ¶ 9 (1999) (finding that an agency should be found in
compliance with an interim relief order if it can show that it had a strong overriding
intere st or compelling reason for assigning duties other than those assigned prior to an
appellant ’s separation and that, if the agency can make such a showing, the Board will
find that it has made an implicit undue disruption determination ). The agency also
argues that, prior to her removal, the appellant specifically requested to be reassigned to
a different division. Id. Accordingly , we find the appellant’s argument unavailing.
6
612, ¶ 28 n.5 (2015) (explaining that, to prove an AWOL charge, an agency must
demonstrate that the employee was absent without authorization and, if the
employ ee requested leave, that the request was properly denied) , overruled in
part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25.
The administrative judge declined to sustain 5 days of AWOL due to the
appellant’s remaining entitlement to 35 hours of leave under the FMLA. See
Ellshoff v. Department of the Interior ; 76 M.S.P.R. 54 , 73 (1997) (finding that ,
when the facts related to a leave -related charge implicate the FMLA, the Board
will consider and apply the FMLA without shifting the burden of proof to the
appellant) . Because he sustained 36 o f the specifications, he sustain ed the
charge. ID at 13; Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed.
Cir. 1990) (finding that, when more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge ). He also found that the agency
established a nexus between the charged misconduct and the ef ficiency of the
service. ID at 10-11. The parties do not challenge these finding s on review, and
we discern no reason to disturb them .
The agency fail ed to show that the administrative judge erred in mitigating the
penalty .
¶8 As to the penalty, t he administrative judge correctly observed that, wh en all
of the agency ’s charges are sustained, but , like here, some of the underlying
specifications are not sustained, the agency ’s penalty determination is entitled to
deference and should be reviewed only to determine whether it is within the
parameters of reasonableness. ID at 26; Payne v. U.S. Postal Service ,
72 M.S.P.R. 646 , 650 (1996). In reviewing the agency ’s choice of penalty to
determine whether it wa s within the parameters of reasonableness , the
administrative judge recognized the seriousness of the appellant ’s misconduct and
the fact that, as a supervisor, the agency was entitled to hold her to a higher
standard of conduct. ID at 27; see Bowman v. Small Business Administration ,
7
122 M.S.P.R. 217 , ¶ 12 (2015) (observing that t he Board has held that AWOL is a
serious offense that warrants a severe penalty and that agencies may hold
supervisors to a higher standard of conduct ). The administrative judge also found
that the penalty was consistent with the agency ’s tabl e of penalties, which
authorizes a penalty of removal for a first offense of AWOL involving a n absence
that exceeds 10 days without permission and without adequate justification . ID
at 27; IAF, Tab 5 at 22. Nevertheless, he determined that the appellant ’s
post-removal medical evidence demonstrated that her medical conditions had
played a role in the absences at issue and tha t her cognitive functions had
significantly improved; thus, he determined that , under the circumstances, the
penalty of removal exceeded the tolerable limits of reasonableness. ID at 29; see
Bowman , 122 M.S.P.R. 217, ¶¶ 12-15 (finding a 30 -day suspension was the
maximum reasonable penalty for a supervisor with over 20 years of service and a
prior leave -related disciplinary action wh ose medical condition played a role in
the absences that supported the agency ’s AWOL charge).
The administrative judge correctly reviewed the reasonableness of
the penalty based on the appellant’s post -removal medical evidence .
¶9 The agency generally argue s on review that the administrative judge
erroneously substituted his judgment for that of the agency. PFR File, Tab 1 at 4,
9-10. However, t he administrative judge correctly observed that he must analyze
whether the penalty was within the tolerable limi ts of reasonableness based on the
new evidence the appellant submitted to the Board, and not based on the facts and
circumstances known to the deciding official at the time he made his decision to
remove the appellant. ID at 28; see Norris v. Securities and Exchange
Commission , 675 F.3d 1349 , 1357 (Fed. Cir 2012) (finding that an arbitrator erred
by stating that the issue before him was whether the penalty was within the
tolerable limits of reasonableness based upon the facts and circumstances known
to the deciding official at the time).
8
¶10 The administrative judge determined that the deciding official ’s penalty
analysis may have been appropriate in finding that the appellant ’s medical
condition , and the extent that she would recover and return to full function , was
not a substantial mitigating factor at the time of his decisi on. ID at 29;
Mingledough v. Department of Veterans Affairs , 88 M.S.P.R. 452 , ¶ 12 (2001)
(finding that a medical condition was not a significant mitigating factor absent
evidence that the impairme nt can be remedied or controlled) . He noted that , at
the time the agency charged the appellant with AWOL , she had exhausted all of
her leave , and it appeared to the agency that she may have been abusing leave
because, even though she insisted that she could not return to work, i.e., that her
absence was open -ended, there was no clear medical evidence suggesting she was
incapacitated to the point that she could not return to work . ID at 12 n.2 , 16-17;
see Patte rson v. Department of the Air Force , 74 M.S.P.R. 648 , 652 (1997)
(finding that , when an employee has exhausted all available leave, an agency may
deny LWOP and place the employee on AWOL when there is no foreseeable end
to the employee ’s absence and the abse nce is a burden to the agency).
¶11 Thus, the administrative judge did not mitigate the penalty based on any
alleged inadequacies in the deciding official ’s penalty analysis. As discussed
below, the administrative judge instead found that the appellant ’s post -removal
medical documentation and her testimony before him indicated that her absences
were related to her underlying mental conditions, and that she had sufficiently
recovered within a month of her removal to return to work. ID at 27, 29.
The administrative judge correctly found that the appellant’s
post-removal medical evidence provides the requisite link to
her absences .
¶12 Mitigation of the penalty is warranted when , as the administrative judge
found here, the medical evidence corroborates the appellant ’s testimony that her
mental illness , in this case, cognitive issues caused by depressio n, anxiety, and
amnesia, played a role in her absence. ID at 27 -28; Bowman , 122 M.S.P.R. 217,
9
¶ 14; see Wynne v. Department of Ve terans Affairs , 75 M.S.P.R. 127 , 136 (1997)
(finding that alleged stressful events did not constitute a mitigating factor when
the a ppellant failed to show how his misconduct was directly related to these
events ).
¶13 The agency contends that the appellant ’s post-removal medical evidence
failed to provide a link to the relevant period, i.e, the period that led to the
adverse action being taken, and instead shows that she improved after she was
removed. PFR File, Tab 1 at 15 -16; see Bowman , 122 M.S.P.R. 217, ¶ 14 (where
proximity in time, testimony, or other evidence provides the requisite link to the
relevant period, the subsequent medical evidence can be very probative of a prior
medical condition ). We disagree. The appellant’s post -removal medical evidence
consists of progress notes from her Speech Pathologist’s treatment of the
appellant over six appointments between September 27 and October 30, 2018.
IAF, Tab 27 at 4 -8, Tab 28 at 4 -11. Those dates include one appointment while
she was still employed by the agency, as the agency effected the appellant’s
removal on September 30, 2018. IAF, Tab 4 at 8, Tab 27 at 4 -5. The remainder
of those appointments took place within the month immediately following the
appellant’s removal. IAF, Tab 27 at 6 -8, Tab 28 at 4 -11. The provider’s
September 27, 2018 progress note describes the chronology of the appellant’s
difficulties, which the appellant reportedly first noticed while she was still at
work, and speci fically states that the appellant had been out since May 2018, “due
to her changes in cognition,” and that she continued to have memory and
problem -solving issues. IAF, Tab 27 at 4. The September 27, 2018 note also
states that the appellant’s “cognitive linguistic skills [were ] making steady
gains, ” and that the ap pellant was “showing readiness for vocational activities,”
which the provider found was “a marked improvement since her initial exam,” on
August 9, 2018. Id. at 4-5. Thus, the evidence overlaps with the appellant’s
removal, and it addresses the appellant ’s mental condition in the period covered
by the AWOL charge. Id.; IAF, Tab 4 at 39 -43.
10
¶14 In this regard, the administrative judge found that the appellant ’s testimony
and the medical documentation in the record both supported the conclusion that
her absenc es were related to certain underlying medical conditions, including
depression, anxiety, and amnesia —conditions that were exacerbated by grief over
the death of her mother in November 2017 and the stress cause d by having to
move and care for her elderly fa ther. ID at 27 ; IAF, Tab 27 at 4 -8, Tab 28
at 4-10. The agency has not provided a basis for disturbing the administrative
judge’s decision to credit the appellant’s testimony. T he administrative judge
held a hearing, and t he Board must give deference to an administrative judge ’s
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such d eterminations only when it has “sufficiently soun d” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002).
¶15 The agency also argues on review that the admini strative judge gave the
appellant ’s post-removal evidence too much weight . PFR File, Tab 1 at 15. The
agency rightly observes that Norris , 675 F.3d 1349 , does not specify the weight to
be given to post -removal mitigating evidence . However, the agency has failed to
show that the administrative judge improperly weighed the relevant post -removal
medical evidence. In assessing the probative value of medical evidence, one must
consider the qualifications of the health care providers, their familiarity with the
appellant ’s condition, and whether their opinions provide a reasoned explanation
for their findings as opposed to mere conclusory assertions. See Stevens v.
Department of the Army , 73 M.S.P.R. 619 , 627 (1997).
¶16 Here, the medical provider’s opinions set forth reasoned a nd specific
explanations of the appellant’s medical conditions. IAF, Tab 27 at 4 -8, Tab 28
at 4-11. Although the agency argues that the evidence in this case is effectively
meaningless because the medical provider told the agency that the appellant was
able to return to w ork prior to her being removed, PFR File, Tab 1 at 15 , we do
not discern any inconsistencies in the medical provider’s opinions . Specifically ,
11
the provider ’s prognosis that the appellant could attempt a soft transition to work
earlier d oes not mean that she was incorrect that the appellant had progressed to
the point that she was ready to return to work when the medical provider
discharged the appellant on October 30, 2018. IAF, Tab 4 at 12 -14, Tab 27
at 4-8, Tab 28 at 4 -11.
¶17 The agenc y also questions the qualifications of the medical provider, a
Speech Pathologist, to give advice on the appellant ’s “generalized anxiety
disorder ” and “other amnesia. ” PFR File, Tab 1 at 15. However, the record does
not reflect that the agency challenge d or objected to t he provider ’s qualifications
below, and its unsupported challenge on review provides no substantive reason to
discount the Speech Pathologist ’s assessment and diagnosis of the appellant . See
Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the
Board generally will not consider an argument raised for the first time in a
petition f or review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence). Moreover, the record
reflects that the appellant’s neurologist , who had diagnosed the appellant with
amnesia and was, wit h the assistance of a nurse practitioner, treating her for the
condition, had referred her to the Speech Pathologist for treatment . IAF, Tab 4
at 12-14, Tab 21 at 121, Tab 30 at 17. The record reflects that the Speech
Pathologist was treating the appella nt for, among other things, memory loss,
which the administrative judge found was related to her absences. ID at 5, 9, 27;
IAF, Tab 4 at 12 -14, Tab 27 at 4-8, Tab 28 at 4 -11.
¶18 Based on the foregoing, we discern no basis for disturbing the
administrative judge’s finding that the provider ’s findings , as set forth in the
appellant ’s post-removal medical documentation and the appellant ’s testimony
before him, both supported the conclusion that her absences were related to her
underlying medical conditions and that her impairment could be remedied or
controlled. ID at 27 -28; IAF, Tab 27 at 4 -12.
12
The administrative judge correctly considered the appellant’s
potential for rehabilitation based on her post -removal
medical evidence .
¶19 We similarly find unpersuasive the agency’s argument on review that the
deciding official correctly determined that the appellant’s potential for
rehabilitation was poor because she wa s likely to continue being AWOL . PFR
File, Tab 1 at 13 -15. The agency contends in its petition for r eview that the
deciding official’s testimony that the appellant failed to submit justification to
excuse her absences did not indicate that he was unaware of her condition, and
that he carefully considered it in considering the reasonableness of the penalt y
and her potential for rehabilitation. Id. at 12 -13; see Mingledough , 88 M.S.P.R.
452, ¶ 12 (finding that a medical conditi on was not a significant mitigating factor
when the potential for rehabilitation was poor).
¶20 However, the agency’s finding that the appellant’s potential for
rehabilitation was poor was based on the evidence, including the medical
documentation, that it h ad at the time of the appellant’s removal. We have
already determined that t he administrative judge correctly reviewed the penalty
based on the appellant’s post -removal medical evidence —evidence the deciding
official could not have had when he made his de cision to remove the appellant .
Norris , 675 F.3d at 1357 (finding that an arbitrator erred by stating that the issue
before him was whether the penalty was within the tolerable limits of
reasonableness based upon the facts and circumstances known to the d eciding
official at the time). Thus, b y necessity, the appellant’s recovery from mental
conditions that were implicated in her AWOL similarly justifies the reassessment
of a determina tion that the appellant’s potential for rehabilitation was poor
because h er absence appeared open -ended. Id.
¶21 Concerning other penalty factors, t he agency argues that, by raising the
appellant ’s 28 years of discipline -free Federal service, the administrative judge
appeared to “give the factor more weight than it was given by the deciding
13
official .” PFR File, Tab 1 at 13. We are not persuaded. In conducting his
penalty analysis, the administrative judge was required to determine whether the
penalty was within the parameters of reasonableness . Payne , 72 M.S.P.R. at 650
(finding that when all of the agency ’s charges are sustained, but some of the
underlying specifications are not sustained, the agency ’s penalty determination is
entitled to deference, and should be reviewed only to determine whether it is
within the parameters of reasonableness). The appellant ’s length of service is a
pertinent part of that analysis , as is the fact that her service was discipline -free.
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981) .
The appellant does not challenge the administrative judge ’s findings that she
failed to establish that the agency denied her due process or discriminated against
her on the basis of her disability .
¶22 As noted above, the administrative judge found that the appellant failed to
prove that the agency denied her due process by considering ex parte information.
ID at 18 -22. He found that the appellant established that the proposing official
and the deciding official engaged in ex parte communications after the appellant
responded to the notice of proposed removal. ID at 20. Nevertheless, he found
that the appellant failed to establish t hat the ex parte information involved , which
included correspondence between the proposing official and the appellant , and a
conversation between the proposing official and the deciding official to go
through all the documents relevant to the case, was so substantial and so likely to
cause prejudice as to rise to the level of a due process violation. ID at 21 ; see
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1377 (Fed. Cir.
1999) (finding that “[o]nly ex parte communications that introduce new and
material information to the deciding official will violate the due process
guarantee of notice” ). The appellant does not challenge this finding on review
and we discern no reason to disturb it.
¶23 The administrative judge also found that the appellant failed to show that
the agency discriminated against her on the basis of her disab ility. ID at 25-26.
14
He found that she establish ed that she suffered from a disability, as the medical
documentation she submitted indicated that she suffered from depression, anxiety,
and amnesia , and that tho se conditions affected her attention, memory, and ability
to concentrate. ID at 25. Nevertheless, because the appellant ’s medical
documentation at that time did not suggest that she needed an extended leave of
absence, and instead suggested that she should return to work, he determined that,
even i f the appellant ’s request for time off constituted a request for a reasonable
accommodation, her medical documentation did not support her request. ID
at 25-26. Thus, he found that the appellant failed to show that the agency denied
her a reasonable acco mmodation. ID at 26 ; see Bond v. Department of Energy ,
82 M.S.P.R. 534 , ¶ 23 (1999) (observing that the Board has found open -ended
latitude in leave and attendance matters constitutes an unduly burdensome
accommodation ); Stevens , 73 M.S.P.R. at 628 -29 (same) . The appellant does not
challenge this finding on review and we discern no reason to disturb it.
¶24 Accordingly , we affirm the i nitial decision.
ORDER
¶25 We ORDER the agency to cancel the removal and substitute in its place a
30-day suspension wit hout pay. 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.
¶26 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,
15
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.
¶27 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).
¶28 No later than 30 days after the agency tells the appellan t 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 p etition
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).
¶29 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 do cumentation
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 dec ision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonab le 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
16
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DE CISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we of fer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rul e regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file withi n the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whe ther a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition f or review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.
17
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no lat er than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
18
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed t hrough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you rece ive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
19
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no c hallenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 is suance 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 a t the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
20
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%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 noti fied 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 ea rnings 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 l ater 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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agree d 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 incl ude 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 document ation 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 t he 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. | MAGLOIRE_JENEIL_H_AT_0752_19_0778_I_1_FINAL_ORDER_2059999.pdf | 2023-08-16 | null | AT-0752 | NP |
2,789 | https://www.mspb.gov/decisions/nonprecedential/MUEGO_KARL_PH_3330_22_0069_I_1_FINAL_ORDER_2060076.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KARL MUEGO,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
PH-3330 -22-0069 -I-1
DATE: August 16, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darius Rohani -Shukla , Esquire, and Debra D’ Agostino , Esquire,
Washington, D.C., for the appellant.
Channah S. Broyde , Esquire, Philadelphia, Pennsylvania, for the agency.
Karen Modesta Barefield , Esquire, Arlington, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in his Veterans Employment
Opportunities Act (VEOA) appeal . For the reasons discussed below, we GRANT
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 a gency’s petition for review and VACATE and REVERSE the initial decision,
finding that the appellant was not entitled to corrective action under VEOA.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant, a preference eligible employed with a nother Federal agency,
applied for a position with the responding agency in this appeal. Initial Appeal
File (IAF), Tab 8 at 159-60, 188, 215 . The agency accepted applications from
outside its workforce and used merit promotion procedures to fill the vacancy .
Id. at 30, 277. The agency did not include the appellant on its initial certificate of
eligibles for the vacancy based on its determination that he did not meet the
position’s specialized experience requirements. Id. at 76 -77. After the agency
informed him of t his determination, the appellant filed a complaint with the
Veterans’ Employment and Traini ng Service (VETS) alleging that the agency’s
determination constituted a veterans’ preference issue. Id. at 173 -75.
¶3 In response to the appellant’s VETS complaint, the agency reasses sed the
appellant’s application, determined that he did meet the specialized experience
requirements for the position , and amended the certificate of elig ibles to include
him. Id. at 67 , 184 -85. However, the agency did not refer the appellant’s
application to any hiring manager or selecting official for consideration . IAF,
Tab 20, Hearing Recording (testimony of the human resources liaison). The
appellant was informed of his nonselection for the position and filed a second
VETS complaint .2 IAF, Tab 1 at 7-10. VETS issued the appellant a close -out
letter, IAF, Tab 8 at 66, and the appellant timely filed an appeal with the Board,
IAF, Tab 1.
After holding a hearing, the administrative judge granted the appellant’s
request for cor rective action, finding that the agency violated his right to compete
2 VETS previously issued the appellant a letter stating that his first complaint was being
closed as prematurely filed and informing him that he could file a new complaint after a
selection had been made. IAF, Tab 8 at 16
3
as a preference eligible for a vacancy for which it was accepting applications
outside its workforce under 5 U.S. C. § 3304 (f)(1 ). IAF, Tab 21, Initial Decision
(ID) at 12-13. The administrative judge thus ordered the agency to reconstruct
the hiring action for the vacancy announcement. ID at 13. The age ncy filed a
petition for review, to which the appellant has responded . Petiti on for Review
File, Tabs 2, 4.
The appellant was not entitled to corrective action under 5 U.S.C. § 3304 (f)(1).
¶4 The Board’s regulations reserve to it the authority to consider any issue in
an appeal before it. McClenning v. Department of the Army , 2022 MSPB 3 , ¶ 16;
5 C.F.R. § 1201.115 (e). Thus, although not raised by the agency, we exercise our
authority to consider whether the administrative judge erred by granting
corrective action.
¶5 In Kerner v. Department of the Interior , 778 F.3d 1336 , 1338 -39 (Fed. Cir.
2015), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
concluded, based on a review of the statute’s text and l egislative history, that
5 U.S.C. § 3304 does not apply whe n a veteran or other preference -eligible
applicant is already employed in the Federal civil service. The Federal Circuit
found instead that VEOA is intended to assist veterans in gaining access to
Federal employment, not to give veterans preference in merit promotions.
Kerner , 778 F.3d at 1338. Because the appellant was a Federal employee when
he applied for the agency position , IAF, Tab 8 at 188, 215, according to Kerner ,
he was not entitled to an opportunity to compete for that position under 5 U.S.C.
§ 3304 (f)(1). Thus, the agency did not commit a VEOA violation , and the
administrative judge erred by granting corrective action.
4
NOTICE OF APPEAL RIG HTS3
You may obtain review of t his final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and req uirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Boa rd order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 i n any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Plac e, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellant s,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the 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 revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 allega tions of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for t he 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.ms pb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represen tation 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 jurisd iction.
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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MUEGO_KARL_PH_3330_22_0069_I_1_FINAL_ORDER_2060076.pdf | 2023-08-16 | null | PH-3330 | NP |
2,790 | https://www.mspb.gov/decisions/nonprecedential/ODEN_MEYERS_WANDA_J_SF_0752_17_0585_I_1_REMAND_ORDER_2059366.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WANDA J. ODEN MEYERS,1
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
SF-0752 -17-0585 -I-1
DATE: August 15, 2023
THIS ORDER IS NONPRECEDENTIAL2
Wanda J. Oden Meyers , Culver City, California, pro se.
Jeffrey Baldridge and Justin Strong , Los Angeles Air Force Base ,
California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal appeal for lack of jurisdiction without a
hearing . For the reasons discussed below, we GRANT the appellant’s petition for
1 This case was formerly captioned “ Odenmeyers v. Department of the Air Force .” We
have amended the caption to reflect that the appellant’s surname i s two words.
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges a re not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
review , VACATE the initial decision, and REMAND the case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was a GS -09 Management Analyst for the agency’s Space
Missiles Center (SMC) Development Planning Directorate. Initial Appeal File
(IAF), Tab 4 at 105 -06, Tab 7 at 185.3 In 2014, the agency underwent a
reorganization in which the SMC Development Planning Directorate merged with
the SMC Space Development Test Directorate. IAF, Tab 7 at 185. The ent ity
created by this merger is known as the SCM Advanced Systems and Development
Directorate (SCM/AD). Id. As a result of the reorganization, the appellant’s
Management Analyst position was abolished, and she was offered reassignment to
a GS -09 Training C oordinator position in SCM/AD, which she accepted effective
August 24, 2014. IAF, Tab 4 at 1, 105 -06, Tab 7 at 185.
¶3 The appellant’s duties in this position involved monitoring, recording, and
facilitating the training of agency military and civilian perso nnel , which was
initially limited to 80 or 90 individuals who were former Development Planning
Directorate employees stationed with the appellant at Los An geles Air Force
Base. IAF, Tab 4 at 1, Tab 5 at 44 -46, Tab 7 at 185. She performed these duties
successfully during her first year in the position, through September 30, 2015.4
IAF, Tab 4 at 196-99.
3 We are mindful that the question of whether there is a nonfrivolous allegation of
Board jurisdiction must be determined based solely on the sufficiency of the app ellant’s
pleadings and evidentiary submissions, without regard to the agency’s conflicting
arguments or interpretations of the evidence. See Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325 , 329 (1994). We have considered the agency’s submissions for
purposes of background and context so that we may better understand this pro se
appellant’s claims.
4 The appellant’s performance year ran from A pril 1 through March 31, and her
performance was rated on a two -tier scale of “meets” and “does not meet.” IAF, Tab 4
at 198.
3
¶4 During this time, however, the merger process was continuing, and effective
November 1, 2015, the agency assigned the appellant Training Coordinator duties
for the re mainder of the SCM/AD employees –former Space Development Test
Directorate employees stationed at Kirtland Air Force Base, New Mexico. IAF,
Tab 5 at 50, Tab 7 at 185. According to the appellant, this more than doubled her
workload. IAF, Tab 4 at 67, 95. According to the agency, with the assumption of
these new duties, the appellant’s performance began to falter. Specifically, her
performance was rated “does not meet” in two of five critical elements for the
performance year ending March 31, 2 016, and her October 11, 2016 progress
review reflected continued unacceptable performance in the same critical
elements. IAF, Tab 4 at 200 -01.
¶5 On November 2, 2016, the agency placed the appellant on a 90 -day
performance improvement plan ( PIP). IAF, Ta b 5 at 55 -65. After the close of the
PIP period, the agency determined that the appellant had failed to demonstrate
acceptable performance , and on May 17, 2017, it proposed her removal under
5 U.S.C. chapter 43. IAF, Tab 7 at 5 -10. The appellant responded to the proposal
in writing. Id. at 17 -178. On June 20, 2017, the agency directed the appellant to
attend a June 22, 2017 meeting during which she would receive the agency’s final
decision on her proposed removal. IAF, Tab 4 at 8. However, on June 21, 2017,
the day before the scheduled meeting, the appellant resigned.5 IAF, Tab 5 at 33,
Tab 7 at 178. Her letter of resignation stated that she was resigning “under
duress and documented hostile working conditions.” IAF, Tab 7 a t 178.
¶6 The appellant filed a Board appeal and requested a hearing, indicating that
she was appealing an involuntary resignation. IAF, Tab 1 at 1 -2. The
administrative judge issued an acknowledgment order, notifying the appellant that
the Board might lack jurisdiction over her appeal and informing the appellant of
5 The agency had prepared a decision letter through which the charge of unacceptable
performance would have been sustained and the appellant removed effective June 22,
2017. IAF, Tab 7 at 174 -76.
4
her jurisdictional burden, including the need to make nonfrivolous allegations of
Board jurisdiction in order to obtain her requested hearing. IAF, Tab 2 at 2 -4.
The administrative judge ordere d her to file evidence and argument on the issue.
Id. at 4. Both parties responded, and after the record on jurisdiction closed, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction without a hearing. IAF, T abs 4 -7, Tab 9, Initial Decision (ID).
Specifically, the administrative judge found that the appellant failed to make a
nonfrivolous allegation that her resignation was involuntary based on intolerable
working conditions or a coercive threatened adverse a ction . ID at 10 -14.
¶7 The appellant has filed a petition for review, disputing the administrative
judge’s jurisdictional analysis and arguing that the administrative judge erred in
finding that she failed to make a nonfrivolous allegation of Board jurisdict ion.
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 5 -6. After the record on review closed, the appellant filed a
pleading which she characterized as a “petition to withdrawal and dismiss case
#SF-0752 -0585 -I-1 as of August 3rd 2018.” PFR File, Tab 7. The agency has
objected to the appellant’s request. PFR File, Tab 8.
ANALYSIS
¶8 Withdrawal of an appeal or of a petition for review i s an act of finality that
has the effect of removing the appeal from the Board’s jurisdiction. Okello v.
Office of Personnel Management , 112 M.S.P.R. 563 , ¶ 5 (2009); Wilson v. U.S.
Postal Service , 41 M.S.P.R. 628 , 629 (1989). Hence, a withdrawal must be by
clear, un equivocal, and decisive action. Leno v. Department of Veterans Affairs ,
90 M.S.P.R. 614 , ¶ 3 (2002). In this case, we find that the appellant’s request to
withdraw is not clear an d unequivocal because she has not specified whether she
wishes to withdraw the petition for review only or the appeal in its entirety. PFR
File, Tab 7 at 1. We therefore deny the appellant ’s request . If the appellant
5
wishes to withdraw her appeal in its entirety , she should raise the issue with the
administrative judge on remand.
¶9 Employee -initiated actions are presumed to be voluntary, and the Board
lacks jurisdiction over voluntary actions. Polen v. Depart ment of Defense ,
72 M.S.P.R. 1 , 5 (1996). However, employee -initiated actions that appear
voluntary on their face are not always so, and the Board may have jurisdiction
over such actions under 5 U.S.C. chapter 75 as “constructive” adverse actions.
Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 7 (2013). The Board has
recognized a variety of fact patterns that may support a finding of a constructive
adverse action within its jurisdiction. Id., ¶ 8. However, all constructive adverse
actions have two things i n common: (1) the employee lacked a meaningful choice
in the matter; and (2) it was the agency’s wrongful actions that deprived the
employee of that choice. Id. Assuming that the jurisdictional requirements of
5 U.S.C. chapter 75 are otherwise met, proo f of these two things is sufficient to
establish Board jurisdiction. Id. If the appellant makes a nonfrivolous allegation
that her resignation or retirement constituted a constructive removal, then she is
entitled to a hearing on the jurisdictional issue . Campbell v. Department of the
Treasury , 37 M.S.P.R. 92 , 94 (1988). In this case, the administrative judge
found, and we agree, that the appellant’s allegations seem to suggest a claim of
involuntariness under two theories —that the appellant had no choice but to resign
due to intolerable working conditions and that the ag ency’s proposed adverse
action was one that the agency knew could not be substantiated . ID at 10, 13.
¶10 When intolerable working conditions are alleged, the Board will find a
resignation involuntary only if the appellant demonstrates that the agency
engaged in a course of action that made working conditions so difficult or
unpleasant that a reasonable person in her position would have felt compelled to
resign. Markon v. Department of State , 71 M.S.P.R. 574 , 577 -78 (1996). In
examining this issue, the Board will consider the totality of the circumstances.
Shoaf v. Department of Agriculture , 97 M.S.P.R. 68 , ¶ 13 (2004) , aff’d , 158 F.
6
App’x 267 (Fed. Cir. 2005) . In addition, although a resignation or retirement is
not considered involuntary merely beca use an employee chose to resign in the
face of an agency’s threat to remove her for cause, the agency must nonetheless
have had “reasonable grounds for threatening to take an adverse action.” Schultz
v. United States Navy , 810 F.2d 1133 , 1136 (Fed. Cir. 1987). If the agency knew
that the reason for a threatened removal could not be substantiated, the threatened
action by the agency is purely coe rcive and the resulting resignation may be
involuntary. Id.
¶11 In deciding whether the appellant made a nonfrivolous allegation of
involuntariness, the administrative judge in this case declined to consider matters
predating her November 2, 2016 PIP. ID at 11. Although we agree with the
administrative judge that the most probative evidence of involuntariness usually
concerns matters close in time to the alleged constructive removal, ID at 9, 11;
see Terban v. Department of Energy , 216 F.3d 1021 , 1024 -25 (Fed. Cir. 2000),
the appellant in this case has alleged a continuous and related series of coercive
agency actions beginning s hortly after June 29, 2015 , when she requested
reasonable accommodation for conditions arising out of a congenital heart defect ,
IAF, Tab 4 at 1, 83, 216. Specifically, the appellant requested and was granted,
2 days of telework per week effective Septemb er 7, 2015, in order to better
manage work -related stress that could adversely affect her condition. Id.
at 208-16. We therefore find that this time period represents an appropriate
starting point for the inquiry.
¶12 According to the appellant, after she disclosed her disabling heart condition,
her first - and second -level supervisors began a campaign of bullying and
harassment against her. Specifically, she alleges that her supervisors delayed in
ruling on her request for reasonable accommodations, and th at the agency then
“dumped” the additional workload on her in November 2015, without
providing her the proper tools to do the job. PFR File, Tab 1 at 7 -10, 18, 20. In
December 2015, the appellant filed an informal equal employment opportunity
7
(EEO) compl aint, alleging that her second -level supervisor discriminated against
her based on disability, age, race, color, sex, and national origin by, among other
things, assigning her additional work and obstructing her performance of that
work. IAF, Tab 4 at 91 -97. The appellant subsequently filed a formal complaint.
Id. at 89. The record shows that the appellant took a leave of absence from
March 23 through May 1, 2016, which she appears to allege was due to a
compensable condition of work -related stress. PF R File, Tab 1 at 4; IAF, Tab 4
at 217 -20. She alleges that shortly thereafter, her second -level supervisor
confronted her about her EEO complaint . PFR File, Tab 1 at 4. According to the
appellant, the agency later reprimanded this supervisor for her beh avior. Id.
¶13 In June 2016, the appellant received her annual performance evaluation for
the year ending March 31, 2016, which reflected unacceptable performance in two
critical elements. IAF, Tab 4 at 201. In August 2016, the appellant filed an EEO
complaint concerning her first -level supervisor and containing similar allegations
to those contained in her previous EEO complaint , which was still pending before
the agency .6 Id. at 85 -88. During this time, the appellant’s relationship with her
first- and second -level supervisors continued to deteriorate. The appellant alleges
that the y subjected her to overbearing scrutiny, harassment, and humiliation, and
the record shows that she raised the se issues with her superiors outside EEO
channels on several occasions. PFR File, Tab 1 at 10 -12; IAF, Tab 4 at 259-71,
278, 286 -87, 313.
¶14 At the beginning of October 2016, the agency moved the physical location
of the appellant’s office in an attempt to alleviate the friction between her and her
supervisors. IA F, Tab 4 at 51, 265, 311, Tab 7 at 186-87. Shortly thereafter, the
appellant received a negative interim performance review, and on November 2,
2016, her first -level supervisor placed her on a PIP. IAF, Tab 4 at 200, Tab 5
at 55-62. The PIP notice state d that the appellant would be provided with
6 It is not clear what became of th is second EEO complaint.
8
training, assistance, and feedback during the PIP period, but it also warned her
that her telework arrangement could be canceled before the expiration of the
90-day PIP period if she failed to improve her perform ance in the near term. IAF,
Tab 5 at 61-62.
¶15 After being placed on the PIP, the appellant disputed the reasons for the PIP
and requested to be placed under different supervision. IAF, Tab 4 at 46 -55. The
agency granted this request, and a new first -level supervisor was assigned to
oversee the PIP. IAF, Tab 7 at 189. Nevertheless, the appellant’s new first -level
supervisor continued to consult with her former supervisor regarding the
parameters of the appellant’s job duties and to obtain access to certai n
information that he needed to administer the PIP . IAF, Tab 7 at 190. During the
first 45 days of the PIP, the appellant’s new supervisor gave her feedback and
guidance approximately once a week and identified numerous deficiencies in her
work output. IAF, Tab 5 at 64 -65, 79 -80, 94 -96, 135, Tab 6 at 20 -22, 50 -51,
82-83. The appellant responded to this feedback on several occasions, objecting
to her new supervisor’s continued consultation with her former supervisor,
contesting the propriety of her incre ased workload, and explaining variously that
the performance feedback was inaccurate or that any deficiencies in her work
product were due to lack of support and inability to access certain information.
IAF, Tab 6 at 17 -19, 44 -47, 48.
¶16 On December 20, 2016, the appellant’s new supervisor met with her and
informed her that her performance midway through the PIP was still
unsatisfactory, and that he would be terminating her telework agreement effective
January 3, 2017, because working full -time in the off ice would allow for closer
supervision and afford her a better opportunity to improve her performance. IAF,
Tab 4 at 29, Tab 6 at 91, Tab 7 at 190. However, through January and up to the
end of the PIP, on February 8, 2017, the appellant continued to rec eive feedback
9
very critical of her performance, and with which she continued to disagree.7 IAF,
Tab 6 at 93 -95, 101, 104, 106-07, 119 -20, 126 -29, Tab 7 at 190.
¶17 After the agency proposed the appellant’s removal on May 10, 2017, she
began an extended period of stress -related sick leave. PFR File, Tab 1 at 4; IAF,
Tab 4 at 10. The appellant appears to allege that the Office of Workers’
Compensation Programs deemed her stress to be compensable. PFR File, Tab 1
at 4. According to the appellant, her leave wa s scheduled to end on June 23,
2017. Id. However, on June 20, 2017, the agency instructed the appellant to
attend a meeting on June 22, 2017 , and receive its decision letter. IAF, Tab 4
at 8. The appellant resigned the following day. IAF, Tab 5 at 33, Tab 7 at 178.
¶18 Taking all of the appellant’s allegations as true and interpreting the record
in the light most favorable to her, we find that she has made a nonfrivolous
allegation that her resignation amounted to a constructive removal within the
Board’s jurisdiction and that she is therefore entitled to a hearing on that issue.
See Swift v. U.S. Postal Service , 61 M.S.P.R. 29 , 33 (199 4). Regarding the
appellant’s ability to exercise free choice in her resignation, we observe that,
approximately 6 months prior, the agency revoked her telework agreement, which
the appellant asserts was in place as a reasonable accommodation to allow her to
manage work -related stress that could cause fatal complications related to her
heart condition.8 IAF, Tab 4 at 1, 29, 83, 216. Indeed, 5 months after the agency
revoked this accommodation, the appellant received the notice of proposed
removal and took a leave of absence for work -related stress. It was just before
this leave of absence was scheduled to end that the agency decided to deliver the
removal notice. We find that an employee with compelling medical reasons to
7 The appellant’s supervisor extended the PIP period by 7 days to account for leave that
the appellant took over the holidays. IAF, Tab 6 at 107.
8 We make no finding as to whether the appellant was “disabled” within the meaning of
29 C.F.R. § 1630 .2(g)(1) , or whether the telework arrangement was a reasonable
accommodation. However, the appellant certainly viewed it as such, and we find that
she has made a nonfrivolous allegation that it was. IAF, Tab 4 at 211, 216.
10
avoid excessive stress, and who was still in the midst of recuperating from a
previous stressful event at work, could reasonably feel compelled to resign rather
than appear at a meeting at which she had every expectation of b eing removed.
See Koury v. Department of Defense , 84 M.S.P.R. 219 , ¶ 14 (1999) (discussing
the effect of health concerns on the issue o f voluntariness).
¶19 We also observe that the appellant sought multiple avenues of redress to
improve her working conditions before she resigned. Cf. Baker v. U.S. Postal
Service , 84 M.S.P.R. 119 , ¶¶ 22-23 (1999) (finding that the appellant failed to
show that his resignation was involuntary because he failed to pursue other
reasonable options before resigning). Apart from her EEO compl aints, which
were apparently still pending with the agency at the time of her resignation more
than 18 months after she initiated EEO contact, IAF, Tab 4 at 76, Tab 5 at 31
Tab 7 at 18, PFR File, Tab 1 at 2, the record shows that the appellant persistently
sought relief through other means as well. She repeatedly notified various
individuals in her chain of command that she lacked sufficient resources, e.g.,
training, an alternate training manager for when she was unavailable, and
functioning information t echnology systems, to perform her new duties
satisfactorily. These communications began shortly after she took on the
additional duties in November 2015, continued throughout the PIP period, and
were reiterated in her response to the notice of proposed re moval. IAF, Tab 4
at 28, 34 -37, 46 -47, 60, 62 -64, 82 -83, 141, 143, 147, 149 -56, 159 -63, 170 -75,
185-87, 252, 254, 256, 260 -64, 268, 271, 273 -82, 284, 289, 308, Tab 7 at 19 -20.
The record also shows that the appellant repeatedly sought reassignment during
this time period, but to no avail. IAF, Tab 4 at 10 -11, 80 -83.
¶20 Although the appellant is part of a collective bargaining unit and does not
seem to have pursued a grievance on any of these matters, IAF, Tab 5 at 29, 33,
the Board has found that an appel lant is not necessarily required to have pursued
all statutory avenues of redress before her resignation will be found involuntary,
Heining v. General Services Administration , 68 M.S.P.R. 513 , 523 (1995).
11
Considering the totality of the circumstances, including the appellant’s medical
condition and her history of unsuccessful attempts to ameliorate her working
conditions, we find that when she received the agency’s notice to appear at a
meeting in 2 days and receive its decision letter, she could reasonably have
believed that she was out of options. See Jones v. Department of the Treasury ,
107 M.S.P.R. 4 66, ¶ 10 (2007) (finding that time pressure is a factor to consider
in determining whether a resignation or retirement was involuntary).
¶21 As for whether the appellant’s fr eedom of choice was proscribed by
improper agency actions, we acknowledge that undergoing a PIP or facing an
adverse action is inherently stressful and that no employee is guaranteed a work
environment free from stress. Miller v. Department of Defense , 85 M.S.P.R. 310 ,
¶ 32 (2000). However, the agency in this case knew that the appellant had a
serious medical condition that required careful stress management, and during
what was probably the most stressful time in her career, it revoked the telework
arrangement that was previously in place to help her manage that stress. It may
be that telework generally is a discretionary workplace flexibility that may be
curtailed for employees “whose performance or conduct warrants more close
supervisory direction than telework may provide.” IAF, Tab 4 at 29, 45;
Department of Defense Instruction 1035.01, Telework Policy, Enclosure 3
(Apr. 4, 2012) , https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/
dodi/103501p.pdf .9 However, when telework is in place as a form of reasonable
accommodation, the agency’s authority to alter or revoke the arrangement is
limited by the Rehabilitation Act . T he regulations of the Equal Employment
Opportunity Commission (EEOC) implementing the statute require an agency to
make reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can sho w that
accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2 (o)-(p);
9 The Board may take administrative notice of public documents. See Azdell v. Office of
Person nel Management , 88 M.S.P.R. 319 , 323 (2001).
12
see, e.g. , Thomas v. Department of the Navy , 123 M.S.P.R. 628 , ¶¶ 14-15 & n.3
(2016) (finding that the appellant made a nonfrivolous allegation that the agency
constructively suspended her when, among other things, the agency rev oked her
telework, thus presenting her with the choice of taking leave or working against
her doctor’s orders); Hamblin v. Department of Justice , EEOC Appeal No.
0720070041, 2009 WL 2985807, *5 -*6 (Sept . 3, 2009) (finding that the agency
committed disability discrimination when it revoked an employee’s reasonable
accommodation of an early work schedule without proper justification ).
¶22 A reasonable accommodation must be an effective accommodation, i.e. , one
that allows the employee to perform the essential functions of her position.
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, EEOC Notice 915.002 (Oct. 17,
2002), https://www.eeoc.gov/ laws/guidance/enforcement -guidance -reasonable -
accommodation -and-undue -hardship -under -ada. According to the agency, the
appellant was not satisfactorily performing the essential functions of her position
while the telework arrangement was in place. IAF, T ab 4 at 200 -01, Tab 5
at 55-65, Tab 7 at 190. Nevertheless, based on the results of the PIP, it also
appears to be the agency’s position that revoking the telework agreement did not
make a significant difference in the appellant’s abi lity to perform. IAF , Tab 7
at 5-10, 190. It is therefore far from clear that the appellant’s telework was
undermining her performance, that it imposed an undue hardship on the agency,
or that revocation of her telework was grounded in sound business practice. It
may be tha t the appellant was not entitled to reasonable accommodation in the
first place because she was not a “qualified” individual with a disability, i.e. , one
who can perform the essential functions of her position with or without
reasonable accommodation. See Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶¶ 28 -29. Nevertheless, whether the appellant’s unsatisfactory
performance wa s attributable to her own shortcomings or to the agency’s failure
to furnish her the necessary resources is a dispute of fact that cannot be resolved
13
without a hearing. For these reasons, and to the extent that the revocation of her
telework agreement inf luenced her resignation, we find that the appellant has
made a nonfrivolous allegation that this agency action was improper.
¶23 As for the other matters that influenced the appellant’s resignation,
including the agency’s alleged failure to provide her the i nformation and support
she needed to do her job and the alleged hostility of her first - and second -level
supervisors, we find that the appellant has made a nonfrivolous allegation that
these constituted improper agency actions as well. Likewise, the appellant has
nonfrivolously alleged that the agency failed to give her the support, information,
and resources that she needed to do her job during the PIP period which, if true,
would amount to a failure to provide her with a reasonable opportunity t o
demonstrate acceptable performance, as required to support an adverse action
under 5 U.S.C. chapter 43. See 5 U.S.C. § 4302 (c)(6); Santos v. National
Aeronautics and Space Administration , 990 F.3d 1355 , 1360 -61 (Fed. Cir. 20 21);
5 C.F.R. §§ 432.103 (d), .105(a) . If, as the appellant alleges, the agency failed to
provide her adequate support, information, and resources despite her many
requests, this may be sufficient to support a finding that the agency knew that the
reason for her removal could not be substantiat ed and that the threatened removal
was purely coercive. See Adorador v. Department of the Air Force , 38 M.S.P.R.
461, 466 -67 (1988); Barthel v. Department of the Army , 38 M.S.P.R. 245 , 251
(1988) .
14
ORDER
¶24 For the reasons discussed above, we REMAND this case to Weste rn
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ODEN_MEYERS_WANDA_J_SF_0752_17_0585_I_1_REMAND_ORDER_2059366.pdf | 2023-08-15 | null | SF-0752 | NP |
2,791 | https://www.mspb.gov/decisions/nonprecedential/WATSON_LADONNA_K_CH_0752_16_0404_A_1_FINAL_ORDER_2059506.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LADONNA K. WATSON,1
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -16-0404 -A-1
DATE: August 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Hartley David Alley , Esquire, San Antonio, Texas, for the appellant.
Deborah M. Levine , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1 On March 29, 2022, the appellant filed a pleading requesting that the Board
acknowledge her name change from LaDonna K. Droke to LaDonna K. Watson.
Petition for Review File, Tab 6 at 4. Pursuant to the Board’s regulations, this pleading
was also served on the agency. Id. at 5; see 5 C.F.R. § 1201.26 (b)(2). Accordingly, the
case caption and any reference to the appellant herein will reflect this name change.
Additionally, the appellan t’s appeal in the associated case of Watson v. U.S. Postal
Service , MSPB Docket No. CH-0752 -16-0404 -X-1, will also reflect this name change.
However, the Board is issuing a separate decision in that matter. Any cases previously
heard by the Board that ar e now closed will still reflect the appellant’s prior name,
LaDonna K. Droke.
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
FINAL ORDER
¶1 The agency has filed a petition for review of the addendum initial decision
that granted, in part, the appellant’s motion for an award of attorney fees in the
amount of $82,458.99. 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 d uring 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 avail able that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After f ully
considering the filings in this appeal, we conclude that the agency has not
established any basis under section 1201.115 for granting its petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
reduc e the tot al fee award by $100.00 for the reasons outlined below, we
AFFIRM the addendum initial decision an d award the appellant $82,358.99 in
attorney fees.
BACKGROUND
¶2 Effective May 13, 2016, the agency removed the appellant from the position
of Postmaster and from the Federal service based on the charge of unacceptable
conduct. Droke v. U.S. Postal Service , MSPB Docket No. CH-0752 -16-0404 -I-1,
Initial Appeal File (I -1 IAF), Tab 4 at 16 -19. Specifically, the agency alleged
that on a single date, the appellant delayed the delivery of multiple pieces of mail.
Id. at 16, 20 -21. On May 17, 2016, the appellant filed an appeal with the Board
contesting her removal and raising the affirmative defenses of discrimination
based on disability, age, and sex; retaliation for engaging in protected activity;
3
violation of due process; and harmful procedural error.3 I-1 IAF, Tab 1 ; Droke v.
U.S. Postal Service , MSPB Docket No. CH -0752 -16-0404 -I-2, Appeal File,
Tab 20 at 2 -3.
¶3 After holding a hearing, the administrative judge issued an initial decision
finding that the agency met its burden of proving the charged misconduct and a
nexus between the charge and the efficiency of the service . Droke v. U.S. Postal
Service , MSPB Docket No. CH -0752 -16-0404 -I-3, Appeal File, Tab 13, I nitial
Decision (I -3 ID) at 5 -21, 40. However, the administrative judge found that
removal exceeded the bounds of reasonableness and mitigated the penalty to a
demotion with the least reduction in grade and pay to a position for which the
appellant was qu alified, along with a 60 -day suspension without pay. Id.
at 40-47. The administrative judge further held that the appellant did not prove
any of her affirmative defenses. Id. at 21-40. This became the Board’s final
decision on the appellant’s removal appeal and other decided claims, as neither
party filed a petition for review. 5 C.F.R. § 1201.113 .
¶4 The a ppellant then filed a motion for an award of attorney fees. Watson v.
U.S. Postal Service , MSPB Docket No. CH -0752 -16-0404 -A-1, Attorney Fee File
(AFF), Tab 1 .4 After the parties submitted argument and evidence, the
administrative judge issued an addendu m initial decision, granting, in part, the
appellant’s motion and ordering the agency to pay her $82,458.99 in a total
award. AFF, Tab 12, Addendum Initial Decision (AID) at 1 -18.5
3 The Board docketed this appeal under MSPB Docket No. CH -0752 -16-0404 -I-1. The
appeal was dismissed without prejudice on two occasions and refiled. I -1 IAF, Tab 41,
Initial Decision at 1; Droke v. U.S. Postal Service , MSPB Docket No. CH-0752 -16-
0404 -I-2, Appeal File, Tab 2, Tab 23, Initial Decision at 1; Droke v. U.S. Postal
Service , MSPB Docket No. CH -0752 -16-0404 -I-3, Appeal File, Tab 3.
4 In her motion and subsequent amendments, the appella nt sought $102,717.50 in
attorney fees and $8,519.97 in expenses, for a total award request of $111,237.47.
AFF, Tab 1 at 29, 31 , Tab 5 at 26 , Tab 8 at 13 , Tab 10 at 6.
5 Of this amount, $79,848.13 is for attorney fees and $2,610.86 is for expenses. AI D
at 17.
4
¶5 The agency has filed a petition for review of the addendum initial decis ion
seeking to invalidate the award of attorney fees or, in the alternative, to have the
award further reduced. Petition for Review (PFR) File, Tab 3. The appellant
responded in opposition. PFR File, Tab 5.
DISCUSSIONS OF ARGUM ENTS ON REVIEW
The admini strative judge correctly determined that the appellant was entitled to
an award of attorney fees.
¶6 In order to establish entitlement to an award of attorney fee s, an appellant
must show that: (1) she was the prevailing party; (2) she incurred attorney fees
pursuant to an existing attorney -client relationship; (3) an award of fees is
warranted in the interest of justice; and (4) the amount of claimed fees is
reasonable. 5 U.S.C. § 7701 (g)(1); Wightm an v. Department of Veterans Affairs ,
111 M.S.P.R. 109 , ¶ 7 (2009). As outlined in the addendum initial decision, the
administrati ve judge appropriately found that the appellant established each of
these requirements and awarded her attorney fees . AID at 1 -18.6
¶7 On review, the agency challenges the administrative judge’s finding that the
award of fees is warranted in the interest of justice . PFR File, Tab 3 at 6 -13. In
finding that an award of attorney fees is warranted in the interest of justice, the
Board generally looks to the Allen categories, which, while non -exhaustive,
consider whether: (1) the agency engaged in a prohibited personnel practice;
(2) the agency action was clearly without merit or wholly unfounded, or the
employee was substantially innocent of the charges; (3) the agency initiated the
action in bad faith; (4) the agency committed a gross procedural error; or (5) the
agency knew or should have known that it would not prevail on the merits when it
brought the proceeding . Allen v. U.S. Postal Service , 2 M.S.P. R. 420 , 434 -35
6 In its petition for review, the agency does not contest the findings that the appellant
was the prevailing party and that she incurred attorney fees in accordance with an
attorney -client relationship. PFR File, Tab 3 at 4 -13. We find no reas on to disturb
these substantiated conclusions. AID at 6 -7.
5
(1980) . In this case, the administrative judge focused solely on Allen category 5,
and found that the agency knew or should have known when it took the removal
action against the appellant that it exceeded the limits of reasonableness set f orth
in Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981), and thus would be
mitigated upon review. AID at 7 -11.
¶8 In Lambert v . Department of the Air Force , 34 M.S.P.R. 501 , 504 -07
(1987), the Board held that the penalty is part of the merits of a case, meani ng
that fees may be warranted in the interest of justice under Allen category 5 when
all of the charges of misconduct are sustained and the penalty imposed is
mitigated, unless the decision to mitigate is based upon evidence that was not
presented to the a gency before it made its decision. The administrative judge’s
decision to sustain the single charge of misconduct in this case, while mitigating
the removal penalty to a demotion and a 60 -day suspension, was based upon
evidence and information that was av ailable to the agency’s deciding official at
the time that she made the determination to remov e the appellant. Specifically,
the administrative judge’s mitigation finding was centered on the Douglas factor
analysis, including the length of the appellant’s service, her lack of a prior
disciplinary record, the numerous performance awards and promotions that she
received, the absence of notoriety in the misconduct, the failure to show any
personal gain or benefit from the misconduct, along with the appellant’ s
rehabilitative potential. I -3 ID at 43 -47. The deciding official’s lack of
knowledge of applicable postal operations was also relevant. Id. at 46. In
addition, no new information pertaining to mitigation was introduced at the
hearing that was unavail able to the deciding official at the time that she made the
removal decision.7
7 It is also notable that the agency did not contest the administrative judge’s decision
that the removal penalty was unreasonable, as it did not file a petition for review of the
initial decisi on.
6
¶9 The cases that the agency cites in its petition for review to support its
position that an award of fees is not appropriate in the interest of justice are
unpersuasive. PFR Fil e, Tab 3 at 7 -12. First, the agency points to the decision of
the U.S. Court of Appeals for the Federal Circuit in Dunn v. Department of
Veterans Affairs , 98 F.3d 1308 , 1313 (Fed. Cir. 1996), wherein the court stated
that Lambert did not create a per se rule guaranteeing fees nor does it create a
presumption that fees are warranted in cases such as this one. Id. at 8. Nothing
in the addendum initial decision is inconsistent with the court’s decision in Dunn ,
as the administrative judge’s decision to award the appellant attorney fees in the
interest o f justice was not due to an erroneous application of a per se rule or
presumption. Rather, the administrative judge found that the evidence of record
established that the agency knew or should have known that removal was too
severe under the circumstances . AID at 7 -11.
¶10 The agency also cites separate opinions by two previous Board Chairmen in
decisions where appellants were awarded attorney fees. PFR File, Tab 3 at 8 -9,
11-12. Both of these decisions are nonprecedential pursuant to 5 C.F.R.
§ 1200.3 (d), meaning the Board is not required to follow either as binding
authority. Notwithstanding, in DeShazo v. Department of the Air Force ,
100 M.S.P.R. 604, ¶ 3 (2005) (separate opinion of Cha irman McPhie), the interest
of justice analysis was grounded wholly in Allen category 2—weighing whether
the agency action was clearly without merit. Allen category 2 is not a part of the
analysis in this instant appeal. In Young v. Department of the Nav y, 93 M.S.P.R.
28, ¶¶ 7, 17 (2002) (separate opinion of Chairman Marshall), the then Chairman
emphasized the afore mentioned holding in Dunn and found that, based on the
facts of the case before her, “[t]he appellant [had] not even come close to proving
by preponderant evidence that the agency knew or should have known that its
choice of penalty would not be sustained. ” The agency presented no evidence or
argument in it s analysis of Young that causes us to find issue with the overall
conclusion of the addendum initial decision in this case. Thus, we find that the
7
administrative judge correctly held that the appellant proved that an award of
attorney fees and costs was in the interest of justice based on the known or should
have known criterion set forth in Allen category 5. See Nickerson v. U.S. Postal
Service , 55 M.S.P.R. 92 , 95-96 (1992) (finding that attorney fees were warranted
in the interest of justice under Allen category 5 where the Board concluded that
the removal was unreasonable, mitigat ing the penalty to a 120 day suspension,
and basing such finding on evidence that was not first introduced on appeal).
¶11 In its petition for review, the agency also seeks a further reduction in fees to
account for having proved the charged misconduct and a nexus between the
charge and the efficiency of the service, along with the appellant’s failure to
succeed on her affirmative defenses. PFR File, Tab 3 at 6, 12 -13. The starting
point for the relevant analysis is to take the hours reasonably spent on the
litigation and multiply it by a reasonable hourly rate. Driscoll v. U.S. Postal
Service , 116 M.S.P.R. 662 , ¶ 10 (2011) (citing Hensley v. Eckerhart , 461 U.S.
424, 433 (1983)). This will produce the “lodestar” amount, which the Board will
use in determining a fee award. Lizut v. Department of the Navy , 42 M.S.P.R. 3 ,
7-8 (1989). The party seeking an award of fees should submit evidence
supporting the hours worked and exclude hours that are excessive, redundant, or
otherwise unnecessary. Guy v. Department of the Army , 118 M.S.P.R. 45 , ¶ 11
(2012). The administrative judge need not automatically accept claimed hours
but may disallow hours for duplication, padding, or frivolous claims, and impose
fair standards of efficiency and economy of time. Id.
¶12 In this case, the administrative judg e found that the appellant substantiated
her request for 241.2 attorney hours (213.1 hours on the initial appeal plus an
additional 28.1 hours for this fee petition), 39.5 attorney travel hours, and
2.5 hours of paralegal time.8 AID at 14. The administra tive judge also
determined that the hourly rates of $400 for attorney work, $150 for attorney
8 The attorney travel hours and paralegal time were accrued during the appellant’s
initial appeal. AFF, Tab 1 at 13 -14, 20 -21, 26 -28.
8
travel, and $125 for paralegal work were reasonable. AID at 13. As a result, the
lodestar amount for the work done on the appellant’s initial appeal was
establi shed at $91,477.50,9 with an additional amount of $11,24010 for time spent
working on this fee petition.
¶13 The lodestar amount can be adjusted upward or downward based on
considerations, to include the final disposition of the raised claims. Driscoll ,
116 M.S.P.R. 662 , ¶ 10. Where, as here, a party is entitled to an award of
attorney fees but did not succeed on every claim, the most impor tant factor to be
weighed is the obtained results. Id., ¶ 21. If a prevailing party raised more than
one or more related claim and achieved only partial or limited success, an award
for hours reasonably spent on litigation as a whole multiplied by a reas onable
hourly rate may be excessive, even if the claims were interrelated, nonfrivolous,
and raised in good faith. Id., ¶ 24 . In this scenario, the Board has discretion to
make an equitable judgment as to what level of reduction is appropriate, by either
identifying specific hours to be eliminated or reducing the overall award to
account for the limited degree of success. Id.
¶14 Here, the administrative judge accounted for the agency proving the charge
and a nexus, along with the appellant’s failure to succeed on her raised
affirmative defenses, when he reduced the lodestar by 25% of the amount of
attorney fees accumulated by th e appellant in her prevailing initial appeal. AID
at 15-16. While the appellant did not succeed on all of her claims, there is
significance in the relief that she obtained, as she remained an agency employee,
albeit at a demoted level, who served a 60 -day suspension, in lieu of being
removed. We discern no basis to further reduce the award based on the
arguments raised by the agency on review. See Driscoll , 116 M.S.P.R. 662 , ¶¶ 3,
9 This sum is derived from (213.1 attorney hou rs x $400 an hour = $85,240)
+ (39.5 attorney travel hours x $150 an hour = $5,925) + (2.5 paralegal hours x $125 an
hour = $312.50).
10 This sum is derived from (28.1 attorney hours x $400 an hour = $11,240).
9
28-29 (applying a global reduction of 25% of the lodestar fairly reflected the
appellant’s limited success of having her removal mitigated to a demotion
but failing to prevail on her affirmative defenses); see also Sprenger v.
Department of the Interior , 34 M.S.P.R. 664 , 669 (1987) (holding that the
administrative judge who decided the appe al on the merits is often in the best
position to determine the reasonableness of attorney fees).
The attorney fee award must be adjusted due to errors in the calculation .
¶15 As outlined above, when calculating the fee to be awarded in the addendum
initial decision, the administrative judge reduced the lodestar amount by 25% of
the sum of attorney fees accrued by the appellant for the work done on the initial
appeal ($91,477.50), which came to $68,608.13. AID at 15-16. The
administrative judge then includ ed the full amount of fees accrued in conjunction
with this fee petition ($11,240) to reach the amount of $79,848.13. Id. at 16.
With the substantiated expenses of $2,610.86 added, the administrative judge
awarded the appellant $82,458.99 in total fees a nd costs.11 Id. at 17; see
Garcia v. U.S. Postal Service , 75 M.S.P.R. 198 , 201 (1997) (holding that an
award of attorney fees may in clude reimbursement for counsel’s out -of-pocket
expenses which are normally charged to a client). While neither party raised the
following issues on review, we find errors in the calculation of this award that
must now be addressed. See Jackson v. U.S. Postal Service , 79 M.S.P.R. 46 , 50
(1998) (stating that the Board will not turn a blind eye to a clear and material
legal error).
¶16 In the $91,477.50 identified by the appellant as the fees incurred in the
initial appeal, the appellant included $600 in fees accumulated for time spent
considering petition for review options of the initial decision issued in the initial
appeal. AFF, Ta b 1 at 28. Undisputedly, neither party filed a petition for review
11 Neither party disputes on review the amount of expenses awarded to the appellant nor
do we find a reason to di sturb the administrative judge’s finding o n the matter. AID
at 16-17.
10
of this initial decision. The Board has held that fees may be awarded for time
spent on separate and optional, but factually related proceedings, if, among other
things, the work performe d significantly contributed to the success of the
proceeding. Driscoll , 116 M.S.P.R. 662 , ¶ 13. These circumstances are not
present here, as the appellant’s attorney’s work pertaining to the consideration of
filing a petition for review came after the successful Board appeal and any such
petition never came to fruition. As such, a reduction of $600 is appropriate.
¶17 Additionally, the administrative judge also included $1,400 in fees billed
for work related to this fee petition in the $91,477.50 amount awarded for work
on the initial appeal. AFF, Tab 1 at 29. Because these fees are more
appropriately included in the fees from this fee petition work, which receive no
adjustment, the $1,400 from the appellant’s initial fee petition must be further
subtracted from the $91,477.50 and must only be included in the unreduced fee
petition award. AID at 16.
¶18 Finally, we note that the appellant also included in her fee petition $2,260
for fees accrued in a compliance related matter, and the administrative judge
awarded those fees. AFF, Tab 1 at 28-29; AID at 14. The Board has long held
that a request for attorney fees incurred during compliance and enforcement
proceedings is premature prior to the issuance of a final decision in the
compliance proceeding. Galatis v. U.S. Postal Service , 109 M.S.P.R. 651 , ¶ 14
(2008). Although compliance proceedings were pending at the time the initial
decision was issued in this matter, there was no final compliance initial decision.
Droke v. U.S. Postal Service , MSPB Docket No. CH -0752 -16-0404 -C-1
Compliance File ( CF), Tab 1. Therefore, at the time the initial decision in this
matter was issued, it was inappropriate to include fees for work incurred during
compliance proceedings absent a final compliance initial decision. See Galatis ,
109 M.S.P.R. 651 , ¶ 14. However, with the passage of time, a compliance initial
decision was issued, which granted the appellant’s pet ition for enforcement, and
the appellant filed a subsequent motion for attorney fees regarding the
11
compliance proceedings. CF, Tab 26; Droke v. U.S. Postal Service , MSPB
Docket No. CH -0752 -16-0404 -A-2 Appeal File (A -2 AF), Tab 1. On
December 12, 2019, th e administrative judge issued an addendum initial decision
in that matter, granting the appellant’s motion for attorney fees in the compliance
proceedings.12 A-2 AF, Tab 26. In her motion for attorney fees for the
compliance proceedings, the appellant did not include the $2,260 claimed in her
motion for attorney fees in the instant matter. Thus, although it was error to
initially include the $2,260 in the fee award, such an inclusion is now
appropriate, given the final decision in the compliance matter an d the absence of
the $2,260 from the motion for attorney fees in that matter. Thus, this error does
not ultimately affect the outcome of this appeal. 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 fo r reversal of an
initial decision).
¶19 In sum, we must deduct $2,00013 from the $91,477.50 amount awarded by
the administrative judge. In making these proper deductions and then reducing
the lodestar amount by 25% as determined by the administrative judge, the total is
$67,108.12 for the initial appeal. When then adding in the unadjusted amount of
fees accrued in this fee petition ($12,640),14 the award for attorney fees is
12 On review, the appellant requested that the Board take official notice of the initial
decision issued in Droke v. U.S. Postal Service , MSPB Docket No. CH-0752 -16-0404 -
A-2. PFR File , Tab 6 at 4. Pursuant to 5 C.F.R. § 1201.64 , the Board may take official
notice of matters of common knowledge or matters that can be verified without
requiring evidence to be introduce d to establish those facts. As a Board decision in the
same appeal family as the instant appeal, the Board takes official notice of the initial
decision in Droke v. U.S. Postal Service , MSPB Docket No. CH-0752 -16-0404 -A-2.
13 This sum was derived from the aforementioned $600 in fees for contemplating filing
a petition for review and $1,400 in fees for fee petition work. AFF, Tab 1 at 28 -29.
14 The administrative judge erred when holding that the appellant accrued $11,240 in
fees for work on this fee petition. AID at 16. As set forth above, an additional $1,400
in fees from fee petition work were originally included in the initial appeal fee a mount.
12
$79,748.12. See Russell v. Department of the Navy , 43 M.S.P.R. 157 , 162 (1989)
(outlining that time spent on fee petitions is compensable). In conjunction with
the award of $2,610.86 in expenses, the total award that the appell ant is entitled
to is $82,358.99 .
ORDER
¶20 We ORDER the agenc y to pay the attorney of record $8 2,358.99 in fees.
The agency must complete this action no later than 20 days after the date of this
decision. Title 5 of the United States Code, section 1204(a)(2) ( 5 U.S.C.
§ 1204 (a)(2)).
¶21 We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appel lant and
the attorney to provide all necessary information that the agency requests to help
it carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶22 No later than 30 days after the agency tells the appellant or the attorney that
it has fully carried out the Board’s Order, the appellant or the attorney may file a
petition for enforcement with th e office that issued the initial decision on this
appeal, if the appellant or the attorney believes that the agency did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agen cy has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182 (a).
This $1,400 must be added to the previous unreduced fee petition amount of $11,240,
which now totals $12,640. AFF, Tab 1 at 29, Tab 5 at 25 -26, Tab 8 at 13 , Tab 10 at 6.
13
NOTICE OF APPEAL RIGHTS15
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 Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
15 Since the issuance of the initial decision in this matter, the Board may have updated
the notice 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 Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given 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 bef ore you do, then you must file
with the 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 c ondition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can b e found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision be fore you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 w histleblowing 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.16 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
16 The original statutory provision that provided for judicial review of certain
whis tleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB deci sions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WATSON_LADONNA_K_CH_0752_16_0404_A_1_FINAL_ORDER_2059506.pdf | 2023-08-15 | null | CH-0752 | NP |
2,792 | https://www.mspb.gov/decisions/nonprecedential/WATSON_ANDRE_CH_0752_20_0450_I_2_FINAL_ORDER_2059527.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDRE WATSON,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
CH-0752 -20-0450 -I-2
DATE: August 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samuel Hayward , Esquire, Louisville, Kentucky, for the appellant.
John F. Schorn , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 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 , VACATE the administrative judge’s findings
concerning the charges , and SUSTAIN the appellant’s removal. We 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 an d administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 fi ndings that the appellant failed to prove his affirmative
defenses of discrimination and retaliation or that the agency violated his due
process rights.
BACKGROUND
¶2 The appellant was formerly employed by the agency as a Police Officer
with the U.S. Mint. Watson v. Department of the Treasury , MSPB Docket
No. CH-0752 -20-0450 -I-1, Initial Appeal File ( IAF), Tab 1 at 1. Effective
June 8, 2020, the agency removed him based on two charges of conduct
unbecoming and lack of candor. Id. at 16 -23. In particular, the agency charged
the appellant with participating in a scheme to hire a private investigator to
investigate the private lives of two agency officials and providing false
statements to the agency’s Office of Inspector General (OIG) during OIG’s
investigat ion of the scheme. Id.
¶3 The appellant has consistently denied that he participated in hiring the
investigator. According to the agency ’s witnesses, however, Officer C.F.
approached the appellant about hiring a private investigator to surveil the
agency’ s second in command, Inspector K.P. , and a supervisory officer,
Sergeant A.B. IAF, Tab 6 at 51 . Officer C.F. wanted to hire the investigator
because she believed that Inspector K.P. and Sergeant A.B. had a relationship
outside of work, such that Inspecto r K.P. favored Sergeant A.B. and did not
properly address a work dispute between Officer C.F. and Sergeant A.B. Watson
v. Department of the Treasury , MSPB Docket No. CH -0752 -20-0450 -I-2, Appeal
File (I -2 AF), Hearing Transcript (HT) at 95 -96 (testimony of Officer C.F.) ; IAF,
Tab 6 at 40-45. Officer C.F. approached the appellant about hiring the private
investigator because the appellant was upset that Inspector K.P. and others had
ranked him among the lowest for a promotion to lieutenant. IAF, Tab 6 at 50-51.
The appellant had previously filed an equal employment opportunity (EEO)
complaint against Inspector K.P. and expressed to Officer C.F. and another
3
coworker, Sergeant J.F ., that he felt that Inspector K.P. should have recused
herself f rom his interview for the lieutenant promotion process. HT at 95
(testimony of Officer C.F.); HT at 61-63 (testimony of Sergeant J.F.). According
to Sergeant J.F., the appellant expressed that he wanted to hire an investigator or
someone to look into the hiring panel because he was so upset. HT at 63 .
¶4 In the fall of 2019, the appellant and Officer C.F. had two discussions about
hiring a private investigator, which according to Officer C.F. the appellant agreed
to go along with and believed was a “good i dea.” HT at 10-12 (testimony of the
appellant); HT at 96 (testimony of Officer C.F.) ; IAF, Tab 6 at 48. These
discussions concerned the reasons for hiring the investigator and how much it
would cost. HT at 10-12 (testimony of the appellant). Officer C.F. also sent the
appellant an email about a private investigation firm. HT at 105 , 112 , 139
(testimony of Officer C.F.); IAF, Tab 12 at 23-25. According to Officer C.F., she
paid the private investigator $300 via PayPal and the appellant paid h er $150 for
his portion in cash at work during a post change on the roof of the U.S. Bullion
Depository. HT at 93 -94 (testimony of Officer C.F.) ; IAF, Tab 6 at 46, 49. In
December 2 019, Sergeant J.F. had a conversation with Officer C.F. and the
appellant in the police command center during which Officer C.F. showed
Sergeant J.F. information on her phone that she had sent or was going to send to
the investigator . HT at 97 -99 (testimony of Officer C.F.); HT at 64 (testimony of
Sergeant J.F.). According to Sergeant J.F., the appellant was present for part of
the conversation and he got the impression that the appellant was involved. HT
at 79-85, 87. Around that same date, on December 10, 2019, the appellant sent
Sergeant J.F. a text message, stating , “The investigator has been hired. If you
want to help with this and make it a three way split, the n you’ll owe $100.” IAF,
Tab 5 at 45, Tab 6 at 64. The appellant testified that his text message was a joke,
as evidenced by Sergeant J.F.’s response in which Sergeant J.F. sent a picture of
the actor Peter Falk as the television detective Columbo and joked that the only
investigator he would agree to would be Columbo. IAF, Tab 5 at 46; HT at 42
4
(testimony of the appellant). Sergeant J.F. testified that , altho ugh he did not
think it was a joke, he responded jokingly because he was not interested in getting
involved and that was his way of saying no. HT at 67 -68, 79.
¶5 Within days after receiving the appellant’s text message, Sergeant J.F.
reported to Inspector K .P. that the appellant and Officer C.F. had hired a private
investigator to surveil her and Sergeant A.B . HT at 68 (testimony of
Sergeant J.F); IAF, Tab 6 at 12, 62. On or about December 18, 2019, the
appellant and Officer C.F. were separately called int o the Field Chief’s office,
along with a union representative , J.S. HT at 18 (testimony of the appellant); HT
at 102 (testimony of Officer C.F.); HT at 228 (testimony of the union
representative). The Field Chief asked each of them separately if they were
involved in hiring the private investigator. Officer C.F. admitted that she had
hired the private investigator. HT at 1 00 (testimony of Officer C.F.). The
appellant denied any involvement. HT at 18 -19 (testimony of the appellant).
Thereafter, the ma tter was referred to the agency’s OIG for investigation. IAF,
Tab 6 at 11 -12. OIG concluded that the appellant participated in hiring the
investigator , provided false statements to OIG investigators , and failed to
cooperate fully with OIG. Id. at 4-8. Following OIG’s investigation, the agency
proposed and effected the appellant’s removal. IAF, Tab 5 at 24 -31, 47 -53.
¶6 The appellant filed a Board appeal challenging his removal . He raised
affirmative defenses of discrimination based on his race and color, retaliati on for
his prior EEO activity, and a violation of his due process rights . IAF, Tab 1.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision , finding that the agency failed to prove either of its ch arges and
reversing the appellant’s removal. I -2 AF, Tab 20, Initial Decision (ID). In
reversing the removal action, t he administrative judge found that the appellant’s
denial that he participated in the scheme to hire a private investigator was more
credible than the testimony of two agency witnesses to the contrary. ID at 8-17.
5
The administrative judge further found that the appellant failed to prove his
affirmative defenses . ID at 18 -24.
¶7 The agency has filed a petition for review challenging the ad ministrative
judge’s credibility findings , and the appellant has filed a response in which he
does not address the merits of the agency’s petition but rather moves to dismiss
the agency’s petition based on the agency’s failure to comply with its interim
relief obligations . Petition for Review (PFR) File, Tabs 1, 3 , 5.2
DISCUSSION OF ARGUME NTS ON REVIEW
The agency has complied with the interim relief order.
¶8 When an administrative judge has ordered interim relief under 5 U.S.C.
§ 7701 (b)(2)(A), an agency must submit a certification with its petition for review
that it has either provided interim relief or that it has determined that the
appellant’s return to, or presence in, the workplace would be unduly disruptive.
Christopher v. Department of the Army , 107 M.S.P.R. 580 , ¶ 5 , aff’d , 299 F.
App’x 964 (Fed. Cir. 2008) ; 5 C.F.R. § 1201.116 (a). If the agency determines
that the appellant’s return to the workplace would be unduly disru ptive, the
agency must nevertheless provide pay, compensation, and all other benefits
during the interim relief period. 5 U.S.C. § 7701 (b)(2)(B) . The Board’ s
regulations allow an a ppellant to cha llenge an agency’ s certification that it has
2 Neither party has challenged the administrative judge ’s finding s that the appellant
failed to prove his affirmative defense s of race and color discrimination, EEO reprisal,
or a due process violation, and we discern no reason to disturb th ese findings. ID
at 18-24. Regarding the appellant’s affirmative defense of discrimination based on
race, the administrative judge considered t he appellant’s comparator evidence and
found that Officer C.F., who is Caucasian, was not similarly situated to the appellant
because Officer C.F. had no prior discipline. ID at 23 -24. We construe such a finding
as tantamount to a finding that the agency had nondiscriminatory reasons for its
differences in discipline. See infra ¶ 27 ; see also Pridgen v. Office of Management and
Budget , 2022 MSPB 31 , ¶¶ 27 -29 (remanding the appellant’s discrimination affirmative
defense because the administrative judge improperly found that the alleged comparator
was not similarly situated and, thus, did not make a finding as to whether the diffe rence
in treatment was the result of discrimination) .
6
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) .
¶9 The appellant moves to dismiss the agency’s petition for failure to comply
with the interim relief order in the initial decision. PFR File, Tabs 3, 5. W e
agree with the appellant that the agency did not include with its petition a
certification that it had provided the appellant interim relief effective as of the
date of the initial decision. However, w e find unavailing the appellant’s
arguments that the agency has not complied with its interim relief obligations
because it did not inform him of the successful completion of a Standard Form
(SF) 50 and has not allowed him to return to his duties . PFR File, Tab 5 . The
agency has submitted evidence demonst rating that , prior to the deadline for filing
a petition for review, it notified the appellant that it had determined that his
return to duty would cause an undue disruption and executed an SF -52 requesting
the appellant’s interim appointment in a nonduty paid status, effective
September 9, 2021 . PFR File, Tab 4 at 8 -10. The agency thereafter issued an
SF-50 reflecting the appellant’s interim appointment. Id. at 11. Such evidence is
sufficient to establish compliance. See Salazar v. Department of Trans portation ,
60 M.S.P.R. 633 , 639 (1994) (stating that, to establish compliance with an interim
relief order, all that an agency must accomp lish by the petition for review filing
deadline is to take appropriate administrative action, such as executing an SF -50
or SF -52 that will result in the issuance of a paycheck for the interim relief
period ); see also Christopher , 107 M.S.P.R. 580 , ¶¶ 6, 8 (noting that the Board’s
authority is restricted to reviewing whether an undue disruption determinati on
was made and whether the appellant is receiving appropriate pay and benefits) .
To the extent the appellant contends that the agency has not provided him with
the “ancillary benefits of employment ,” PFR File, Tab 5 at 5 -6, he has not
explained how the p ay and benefits he is receiving as reflected in the time and
attendance records submitted by the agency, PFR File, Tab 4 at 12 -27, are not
7
consistent with the requirements of 5 U.S.C. § 7701 (b)(2)( B). Accordingly, we
find that the agency has complied with the interim relief order and the Board
exercises its discretion not to dismiss the agency’s petition for review.
The administrative judge’s credibility findings are contrary to the weight of the
evidence and do not reflect the record as a whole.
¶10 To resolve credibility issues, the administrative judge identifies the factual
questions in dispute, summarizes the evidence on each disputed question, states
which version she believes, and explains in d etail why she 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 deme anor.
Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987). Normally, the
Board will defer to an administrative judge’s cred ibility determinations when they
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing . Haebe v. Department of Justice , 288 F.3d 1288 ,
1301 (Fed. Cir. 2002). However, the Board may overturn demeanor -based
credibility determinations when it has “sufficiently sound” reasons for doing so.
Id. Sufficiently sound reasons include circumstances when the administrative
judge ’s findings are incomplete, inconsistent with the weight of the evidence, and
do not reflect the record as a whole. Faucher v. Department of the Air Force ,
96 M.S.P.R. 203 , ¶ 8 (2004) ; see Wallace v. Department of Commerce ,
106 M.S.P.R. 23 , ¶¶ 14 -16 (2007) (rejecting an administrative judge ’s credibility
determinations for a failure to consider conflicting evidence); Moore v. Equal
Employment Opportunity Commission , 97 M.S.P.R. 684 , ¶ 12 (2004) (rejecting an
administrative judge ’s credibility determination in favor of the testimony of one
8
agency witness where the testimony conflicted with swor n statements by three
impartial witnesses supporting the appellant ’s account of events) .
¶11 Here, w e acknowledge that the administrative judge made specific
demeanor -based credibility findings. ID at 12, 14, 16 . We recognize that the
Board would normally defer to such findings and only overturn them under
extremely rare circumstances . See Haebe , 288 F.3d at 1301 . However, a s set
forth below, we find that the record provides sufficiently sound reasons to
overturn the administrative judge’s credibility det erminations regarding the
appellant’s participation in the scheme to hire a private investigator. In crediting
the appellant’s testimony denying his involvement in the scheme, the
administrative judge failed to acknowledge that the appellant’s version of events
is inconsistent with the weight of the evidence, including the testimony of the
agency’s witnesses, Officer C.F. and Sergeant J.F., the appellant’s December 10,
2019 text message to Sergeant J.F., and the transcript of a December 18, 2019
phone call between the appellant and Officer C.F.
The administrative judge erred when she failed to consider significant
evidence casting doubt on the appellant’s credibility.
¶12 The administrative judge found that the appellant ’s testimony denying any
involvement was more truthful than the testimony of the agency’s two witnesses
because there was no indication that the appellant had previously lied or had a
propensity not to tell the truth. ID at 16. Although we agree with the
administrative judge tha t the appellant consistently denied participat ing in the
scheme, the administrative judge failed to consider or acknowledge the
inconsistencies in the appellant’s OIG testimony, hearing testimony, and phone
call with Officer C.F. regarding his knowledge of and participation in the scheme .
ID at 16. In his OIG interview on January 7, 2020 , the appellant testified that he
had nothing to do with the scheme to hire a private investigator , he only
overheard Officer C.F. in the command center talking about hiring an
investigator, he thought it was a joke, he did not know why Officer C.F. would
9
have wanted to hire an investigator, and he could not speak to whether her plan
came to fruition . IAF, Tab 6 at 28 -29. He further denied paying for the private
inve stigator or that he had any other relevant information such as phone calls or
text messages about hiring a private investigator . Id. Finally, t he appellant stated
to the OIG investigat ors, “I can tell you right now with absolute certainty there’s
zero ev idence on planet Earth to tie me to anything.” Id. at 29 . However, as set
forth below, the record reflects that the appellant had direct knowledge regarding
the reasons why Officer C.F. wanted to hire the investigator, participated in the
plan and knew i t had come to fruition, knew the cost of hiring the private
investigator and paid Officer C.F. for half of the cost, and attempted to recruit
Sergeant J.F. to split the cost three ways .
¶13 On December 18, 2019, the day that both the appellant and Officer C.F.
were placed on administrative leave, the appellant, unbeknownst to Officer C.F.
recorded their private phone call, which evidences a much greater knowledge and
involvement in the scheme than the appellant reported to OIG. IAF, Tab 12 ; HT
at 104 (testimony of Officer C.F.). During the call, rather than expressing
confusion as to why he was implicated in a scheme in which he purportedly was
not involved , the appellant discussed at length how he was not worried because
management c ould not prove he was involved because there was no phone record
of him talking to an investigator and no money exchanging hands between him
and an investigator. IAF, Tab 12. Officer C.F. and the appellant discussed who
could have reported the scheme , how management foun d ou t, how management
must have either tapped their emails or recorded what they said in the command
center . Id. They further discussed what evidence management could have that
could tie them to the hiring , and Officer C.F. remind ed the appellant that sh e had
sent him an email about hiring a private investigator, which Officer C.F. was
going to delete. Id.; HT at 105, 112 , 139 (testimony of Officer C.F.) . Finally,
Officer C.F. attempts to apologize to the appellant for getting him involved, but
the appellant, who was secretly recording the conversation, cuts her off, stating ,
10
“No, no, no, no, no. Stop. . . . Stop, stop, stop. Nobody’s mixed up . . . in
anything. ” IAF, Tab 12 at 19 -20. We find that the transcript of this phone call
contradicts the appellant’s version of events that he was not involved in the
scheme to hire a private investigator and that he thought Officer C.F. was joking
about hiring an investig ator.3 Moreover, th e transcript also corroborates
Officer C.F.’s testimony that the scheme was her idea , she felt bad about getting
the appellant involved , and she initially hoped to protect the appellant. HT at 101
(testimony of Officer C.F.).
¶14 The app ellant’s OIG testimony that he did not know why Officer C.F.
would want to hire a private investigator and did not know if her plan came to
fruition is also inconsistent with his hearing testimony and a December 10, 2019
text message he sent to Sergeant J.F. At the hearing, the appellant testified about
two conversations he had with Officer C.F. regarding the specific reasons why
she wanted to hire an invest igator and how much it was going to cost . HT
at 10-12 (testimony of the appellant) . Additionally, on December 10 , 2019 , the
appellant sent Sergeant J.F . a text message that stated , “The investigator has been
hired. If you want to help with this and make it a three way split, then you’ll owe
$100.” IAF, Tab 6 at 64. The administrative judge credited the appellant’s
testimony that this text message was a joke because the appellant and
Sergeant J.F. had joked via text messages in the past, and Sergeant J.F. responded
in a joking manner . ID at 5, 10 ; IAF, Tab 26 at 8 -10.
¶15 However, we cannot reconcile the administrative judge’s finding with the
record evidence . First, nothing in the appellant’s initial message reflects that he
3 The appellant initially submitted a recording of this phone call with his response to
the notice of proposed removal, IAF, Tab 5 at 37, 40, and the recording was also played
at the hearing. HT at 22. The parties do not dispute the accuracy of the recording or
the transcript of this call. IAF, Tab 12; HT at 21, 24 -25, 104. The administrative judge
deemed the audio recording and transcript admissible after affording the parties an
opportunity to brie f the issue. IAF, Tabs 13, 15, 20; HT at 25.
11
was joking and the appellant’s December 18, 2019 phone call with Officer C.F.
does not support the appellant’s theory that his text message was a joke or that he
thought Officer C.F.’s plan to hire an investigator was ridiculous. HT at 13
(testimony of the appellant) . Second, Sergeant J.F. testified that he did not think
the appellant’s messag e was a joke and that his joking response to the appellant
was his way of saying he was not interested in participatin g without saying no.4
HT at 67 -68, 79. Third , the timing of the text message also suggests that the
appellant was not joking. Around the same date that the appellant sent the text
message , Sergeant J.F. testified that he had a conversation with Officer C.F. and
the appellant in the command center during which Officer C.F. showed him
information on her phone about hiring a private investigator . HT at 64 , 79-85, 87
(testimony of Sergeant J.F.).5 This included text messages to an investigator,
implying the investigator had been hired, and information about the reasons why
they thought Inspector K.P. and Sergeant A.B. were involved in some kind of
relationship. HT at 64 -65 (testimony of Sergeant J.F.) . Lastly , and most
significantly, Sergeant J.F. plainly did not believe that the appellant was joking
because he reported the appellant and Officer C.F. ’s scheme to management ,
which led to the OIG investigation. HT at 68-69; IAF, Tab 6 at 11 -12. Thus, we
find that the appellant’s December 10, 2019 text message to Sergeant J.F. was
serious and contradict s the appel lant’s version of events. We further find the
appellant’s version of his involvement to be internally inconsistent as well as
4 Although the record reflects that the appellant and Sergeant J.F. had joked via text
messages in the past, the context and punctuation of those messages renders it obvious
they are jokes. IAF, Tab 26 at 8 -9. The administrative judge’s finding that
Sergeant J.F. denied that he joked with the appellant in past text messages is not
accurate. ID at 10. Sergeant J .F. did not deny that he did so but rather testified that it
was not a daily or regular occurrence. HT at 76.
5 Consistent with Serge ant J.F .’s account, Officer C.F. also corroborated that they tried
to recruit Sergeant J.F ., she showed Sergeant J.F. her message to the investigator , and
the appellant messaged Sergeant J.F. about splitting the cost. HT at 140 ; IAF, Tab 6
at 50.
12
inconsistent with the record evidence. Moreover, the appellant had a motive to
participate in the hiring based on his issues wit h Inspector K.P. , including his
prior EEO complaint and his dissatisfaction with the results of the lieutenant
exam, for which Inspector K.P. served on the hiring panel. See supra ¶ 3. Based
on the foregoing , we decline to credit the appellant’s testimon y.
The administrative judge erred in finding Officer C.F.’s testimony was not
credible due to prior inconsistent statements .
¶16 The administrative judge found that Officer C.F.’s testimony was not
credible based l argely on the fact that Officer C.F. had made inconsistent
statements concerning whether the appellant was involved in hiring the private
investigator . ID at 12. While under oath at the hearing and during her official
OIG interview ,6 Officer C.F. stated that she approached the appellant about hiring
a private investigator, she paid the investigator $300 via PayPal, and the appellant
paid her $150 in cash at work during a shift change on the roof of the U.S.
Bullion Depository . HT at 93 -94; IAF, Tab 6 at 37, 45 -46. Officer C.F. was also
honest and admitted to the Field Chief that she hired the investigator when she
was first questioned after Sergeant J.F. reported the scheme to management. HT
at 99 -100. The Field Chief did not ask her if anyone else was involved. HT
at 321 (testimony of the Field Ch ief). Although Officer C.F. initially mad e
several statements that the appellant was not involved, such statements were made
informally and not to management or under oath. First, Officer C.F. initially told
her union represent ative that the appellant was not involved. HT at 117
(testimony of Officer C.F.) . Second, o n the day she was placed on administrative
leave, Officer C.F. overheard on the radio that the appellant was being called into
the Field Chief’s office and stated to her union representation and another
6 Prior to her OIG interview, Officer C.F. received a Kalkines warning notifying her of
her obligation to disclose information in her possession during OIG’s administrative
inquiry and that her failure to answer fully and truth fully could result in discipline,
including dismissal. IAF, Tab 6 at 36.
13
sergeant who was walking her out something to the effect of “why are you calling
him, he didn’t have anything to do with this.” HT at 131 (testimony of
Officer C.F.) ; HT at 230 (testimony of the union representative ). Finally,
Officer C.F. told the appellant during their December 18, 2019 phone call that she
told the Field Chief that the appellant was not involved. IAF, Tab 12 at 12; HT
at 120-21 (testimony of Officer C.F.). At the hearing , Officer C.F. testified that
her December 18, 2019 statement to the appellant that she told the Field Chief he
was not involved was not true and the Field Chief confirmed that he did not ask
Officer C.F. who else was involved. HT at 137 (testimony of Officer C.F.); HT
at 321 (testimony of the Field Chief).
¶17 Officer C.F. testified that she was initially trying to protect the appellant
because the scheme was her idea and she did not want the appellant to be upset
with her or for him to get into trouble , particularly because he had already
recently been disciplined. HT at 101. However, after meeting with her union
representative, who advised her that she would be under oath and needed to tell
the truth or she could lose her job , she confirmed the appellant’s involvement and
therea fter consistently maintained that the appellant was involve d. HT at 116-18,
121, 125 137 (testimony of Officer C.F.) ; HT at 239-40 (testimony of the union
representative) . We disagree with the administrative judge that this explanation
is not credible. It is entirely plausible that Officer C.F. would initially attempt to
cover up the appellant’s involvement in her plan during informal discussions but
admit the truth when faced with an official OIG interview or hearing testimony
under oath .
¶18 In declining to credit Officer C.F.’s testimony, the administrative judge
failed to consider that her testimony is consistent with Sergeant J.F.’s testimony
concerning the appellant’s involvement as well as consistent with the rest of the
record evidence. Nor did the administrative judge acknowledge that the appellant
was similarly not honest with the union representative and did not disclose his
December 10, 2019 text message to Sergeant J.F . HT at 244 -45 (testimony of the
14
union representative). Finally, the administrative judge found without
explanation or citation to any evidence that Officer C.F. had a motive to spread
the culpability for her plan to the appellant who m she knew was already under
investigation. ID at 14. Nothing in the record, however , suggests that
Officer C.F. made a deal to receive a lesser penalty in exchange for admitting to
the appellant’s involvement and Officer C.F. denied that she made any deal . HT
at 131. Officer C.F. received a 30 -day suspension based on one charge of
cond uct unbecoming , which is consistent with the union representative’s
testimony that, he advised Officer C.F. that, in his experience, management
rewards honesty and truthfulness and the penalties are less severe if an employee
is honest and owns up to her m istakes. IAF, Tab 5 at 32 -36; HT at 240
(testimony of the union representative) . Based on the foregoing, we find that
Officer C.F.’s testimony is credible to the extent it is consistent with the
testimony of Sergeant J.F. and supported by the record evid ence, including the
appellant’s December 10, 2019 text message and the December 18, 2019 phone
call between the appellant and Officer C.F. See Hillen , 35 M.S.P.R. at 460
(identifying contradiction by or consistency with other evidence as factors to be
considered in determining credibility) .
The administrative judge’s credibility findings re garding Sergeant J.F. are
not well reasoned .
¶19 The administrative judge found that Sergeant J.F. had limited capacity to
observe whether the appellant was involved in the scheme and characterized his
testimony as mere surmise that the appellant was involved based on having seen
the appellant and Office r C.F. whispering in the c ommand center . ID at 8 -9.
Such a characterization is not an accurate or full description of Sergeant J.F .’s
testimony . Sergeant J.F. testified that he believed the appellant was involve d
based on his conversation with Officer C .F. and the appellant in the command
center in which Officer C.F. showed him information on her phone regarding
hiring the private investigato r. HT at 64-65, 79 -87. Such testimony is consistent
15
with Officer C.F.’s account that she showed Sergeant J.F. information that she
was going to or had sent to the investigator and the appellant messaged him about
a three -way split. HT at 140. Although we agree that Sergeant J.F.’s testimony is
confusing regarding the specific timing of events, we do not find such
shortcomings sufficient to render his testimony incredible. Rather, we find more
significant that his testimony is generally consistent with Officer C.F.’s account
concerning the attempt to recruit him as well as with the rest of the record
evidence .
¶20 Additionally, in finding Sergeant J.F.’s testimony not credible, the
administrative judge attributed weight to minor inconsistencies and made other
findings and inferences the significance of which is not apparent. For example,
the administrative judge found significant that Sergeant J.F. could not recall the
specific date of his conversation in the police command center .7 ID at 8.
However, it is not remarkable for a witness not to remember a specific date on
which an event occurred over a year later . The administrative judge also found
significant that Sergeant J.F. “delayed” notifying Inspector K.P. of the scheme
and found improbable Sergeant J.F. ’s explanation about why he waited a couple
days after he learned of the scheme before reporting it to Inspector K.P. ID at 11.
Sergeant J.F. testified that , according to the information he saw on Officer C.F.’s
phone, the investigator was not supposed to be hired until the next Wednesday, so
that still “gave me some time, a person time to, you know, do wha tever she
wanted to do with it.” HT at 68. Nothing in the record contradicts
Sergeant J.F.’s testimony that the investigator had been hired to conduct
7 Contrary to the administrative judge’s finding, we do not find significant
inconsistencies between the summary of the appellant’s OIG testimony and his hearing
testimony, particula rly given the record contains only a brief summary of his OIG
interview, not a complete transcript. ID at 8 -9; IAF, Tab 6 at 14. Sergeant J.F. testified
that he could not remember the exact dates and that he also told the OIG investigator
that he could n ot recall the exact dates. HT at 78.
16
surveillance the next Wednesday. HT at 64 (testimony of Sergeant J.F); HT at 99
(testimony of Officer C.F.). Additionally, t he administrative judge also found it
telling that the appellant mixed up his emotions with that of Inspector K.P. based
on his mid-sentence change from a reference to himself (me) to a reference to
Inspector K.P. (a person ). ID at 11 -12. To the extent the administrative judge
found that this demonstrated that Sergeant J.F. needed more time to consider what
to do or whether to report the situation, ID at 11 -12, we fail to discern how this
renders Sergeant J.F.’s testimony no t credible. Rather, s uch a finding is
consistent with Sergeant J.F.’s testimony that he took some time to think about
the situation, determined that it was not right and Inspector K.P. should be aware
of the situation, and he decided to talk to Inspector K.P. the next time he saw her
in person. HT at 68.
¶21 Finally, the administrative judge found that Serge ant J.F. may have been
motivated by a desire to avoid the appearance of any involvement in the scheme
given that when he reported the scheme , he only prov ided the appellant’s initial
text message to him about hiring the investigator and not his own joking
responses. ID at 9. The administrative judge found that this was significant
because Sergeant J.F.’s responses established that the appellant’s initial message
was a joke. ID at 9-10. However, for the reasons described above, we disagree
that the appellant’s text message was a joke.
¶22 After thoroughly considering the documentary evidence and the hearing
testimony, we credit Sergeant J.F.’s testimony and find that the agency witness ’s
version of events is more likely than the appellant ’s version of events.
The agency proved its charge s.
¶23 A generic charge such as conduct unbecoming does not require specific
elements of proof. It is established by proving t hat the employee committed the
acts alleged in support of the broad label. See Canada v. Department of
Homeland Security , 113 M.S.P .R. 509 , ¶ 9 (2010 ). Essential to the charge ,
however, is that the conduct was unattractive, unsuitable, or detracted from the
17
employee ’s character or reputation . See Miles v. Department of the Army ,
55 M.S.P.R. 633 , 637 (1992). Considering our above analysis, we find that the
agency proved by preponderant evidence that the appellant participated in hiring
a private investigator to invest igate the private lives of two U.S. Mint Protection
officials. Moreover, we find such conduct was unsuitable and detracted from the
appellant’s reputation, particularly given the appellant’s position as a Police
Officer . Accordingly, we sustain the agenc y’s conduct unbecoming charge.
¶24 Lack of candor is a broad and flexible concept “whose contours and
elements depend upon the particular context and conduct involved.” Ludlum v.
Department of Justice , 278 F.3d 1280 , 1284 (Fed. Cir. 2002). Such a charge does
not require proof of intent but rather “may involve a failure to disclose something
that, in the circumstances, should have been disclosed in order to make the given
statement accurate and complete.” Id. Lack of candor “necessarily involves an
element of deception.” Fargnoli v. Department of Commerce , 123 M.S.P.R. 330 ,
¶ 17 (2016) (quoting Ludlum , 278 F.2d at 1284). Here, t he agency charged the
appellant with providing false statements to OIG investigators and no t fully
cooperating with an offic ial inquiry . IAF, Tab 1 at 12. As examples, it noted that
the appellant falsely denied participating in the hiring of a private investigator
and falsely denied communicating verbally or via text message with anyone about
hiring a private investigator. Id. As described above, the appellant was not
forthcoming with OIG concerning his knowledge of and participation in the
scheme to hire the investigator. Thus, we find that the agency proved both that
the appellant lacked candor regarding his denial that he participated in the hiring
of the investigator and by denying that he sent any text messages regarding hiring
an investigator. Accordingly, we sustain the agency’s lack of candor charge.
There is a n exus between the misconduct and the efficiency of th e service.
¶25 Because the administrative judge found that the agency failed to prove the
charge and reversed the appellant’s removal, she did not make findings as to
whether there is a sufficient nexus between the appellant’s misconduct and the
18
efficiency of the service, nor did she determine whether removal is a reasonable
penalty. We address those issues now. It is well settled that there is a sufficient
nexus between an employee’s misconduct and the efficiency of the service when,
as in this case, the con duct occurred at work. Parker v. U.S. Postal Service ,
819 F.2d 1113 , 1116 (Fed. Cir. 1987); Miles v. Department of the Navy ,
102 M.S.P.R. 316 , ¶ 11 (2006). Further, the Board has found sufficient nexus
between an employee’s misconduct and the efficiency of the service when the
sustained misconduct concer ned an employee’s lack of candor during an
administrative inquiry. See Ludlum v. Department of Justice , 87 M.S.P.R. 56 ,
¶ 28 (2000) (stating that the appellant’s lack of candor strikes at the very heart of
the employer -employee relationship) , aff’d , 278 F.3d 1280 (Fed. Cir. 2002).
Therefore, we find that the agency established nexus .
The penalty of removal is reasonable.
¶26 When, as here, all the agency’s charges are sustained, the Board will review
the agency -imposed penalty only to determine if the agency considered all the
relevant factors and exercised management discretion within the tolerable limits
of reasonableness. Pinegar v. Federal Election Commission , 105 M.S.P.R. 677 ,
¶ 53 (2007); see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06
(1981) (articulating a nonexhaustive list of 12 factors that are relevant in
assessing the appropriate penalty for an act of misconduct). In making this
determination, the Board must give due deference to the agency’s primary
discretion in maintaining employee discipline and efficiency, recognizing that the
Board’s function is not to displ ace management’s responsibility but to ensure that
managerial judgment has been properly exercised. Pinegar , 105 M.S.P.R. 677 ,
¶ 53. The Board will modify or mitigate an agency -imposed penal ty only when it
finds that the agency failed to weigh the relevant factors or that the penalty
clearly exceeds the bounds of reasonableness. Id.
¶27 The record reflects that the deciding official considered the relevant factors,
including, the nature and se riousness of the offense. See Singh v. U.S. Postal
19
Service , 2022 MSPB 15 , ¶ 18 (noting that the Board has frequently stated that the
nature and seriousness of the offense, and its relation to the employee’s duties,
position, and responsibility, is the most important factor in assessing the
reasonableness of the penalty). Regardin g this factor, the deciding official
considered that the offenses touched on honesty and integrity, which was
especially serious because the appellant was a law enforcement officer. IAF,
Tab 1 at 20. To that end, he also appropriately held the appellant to a higher
standard of conduct. Id. at 21 ; see, e.g. , Reid v. Department of the Navy ,
118 M.S.P.R. 396 , ¶ 26 (2012). He also cons idered that the appellant’s record for
being less than truthful had potential to render him Giglio impaired.8 HT at 176,
188 (testimony of the deciding official). Significantly , he found the appellant’s
actions affected the privacy and security of the fa cility and management officials ,
which is especially serious at the U.S. Bullion Depository, a classified site that
stores precious metal bullion reserves including vast quantities of gold. IAF,
Tab 1 at 20 ; HT at 170, 174 -75, 185 -86 (testimony of the deciding official). The
deciding official also determined that, although the appellant had been employed
by the U.S. Mint for approximately 4 years, management had lost confidence in
the appellant ’s ability to perform his assigned dutie s and noted that the appellant
had recently served a 14 -day suspension for violation of U.S. Mint policy and
conduct unbecoming a Federal officer. Id. at 21 ; HT at 186 .
¶28 The appellant also raised a claim of disparate penalty . The consistency of
the penalt y is simply one of many factors to consider in assessing the
reasonableness of the penalty and, although the fact that a comparator employee
8 Under Giglio v. United States , 405 U.S. 150 (1972), investigative agencies m ust turn
over to prosecutors any potential impeachment evidence concerning the agents involved
in the case. Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶ 4 n.1 (2012). The
prosecutor will then exercise discretion regarding whether the impeachment evidence
must be turned over to the defense. Id. Such potential im peachment evidence may
render an agent’s te stimony to be of marginal value and place at risk any case that relies
on such testimony . Id.
20
received a less severe penalty should be considered in favor of mitigating the
penalty, mitigation is not required in all such cases. Singh , 2022 MSPB 15 , ¶ 18.
The relevant inquiry for assessing a claim of disparate penalties when weighing
the reasonableness of a penalty is whether the agency knowingly and unjustifiably
treated employees who engaged in the same or similar offenses differently . Id.,
¶ 14. A lthough the universe of potential comparators will vary from case to case,
it should be limited to those employees whose misconduct and/or other
circumstances closely resemble those of the appellant . Id., ¶ 13. In most cases,
employees from another work unit or supervisory chain will not be proper
comparators. Id. We find th e appellant’s disparate penalty arguments unavailing.
¶29 First, i n addressing the appellant’s discrimination affirmative defense, the
administrative judge considered whether the agency had legitimate reasons for
issuing Officer C.F. a less severe penalty fo r similar misconduct as the appellant.
ID at 23 -24. We agree with the administrative judge that the agency was justified
in treating Officer C.F. differently by issuing her a 30 -day suspension. ID at 24.
Officer C.F. was honest during her OIG interview and therefore she was only
charged with conduct unbecoming and not lack of candor, and her misconduct did
not raise any concerns regarding her potential to testify under oath. S he also had
no prior discipline whereas the appellant had recently served a 1 4-day suspension,
and she had over 17 years of service with the agency compared to the appellant’s
less than 5 years. IAF, Tab 5 at 32 -35.
¶30 Second , the appellant contend ed that Officer J.S. received a less severe
penalty based on charges of failure to fo llow U.S. Mint police procedures and
lack of candor . IAF, Tab 35. The record reflects that Officer J.S. engaged in
misconduct when he exercised police authority outside of his jurisdiction by
conducting an unauthorized stop of a car for an alleged traffic violation and
inaccurately report ed the circumstances surrounding the incident. HT at 257 -58;
IAF, Tab 23 at 71 -77. Assuming without deciding that Officer J.S. is a proper
comparator, we find that the agency treated him similarly. According to the
21
deciding official,9 Officer J.S. was also removed based on charges of conduct
unbecoming and lack of candor. HT at 197. Similarly, the union representative
testified that the agency removed Officer J.S. but that Officer J.S. appeal ed his
removal to the Board and the parties entered into a settlement agreement , the
terms of which possibly included allowing Officer J.S. to retire. HT at 255 -58,
266, 276, 279. We find that Officer J.S. received the same pena lty as the
appellant and the fact that such penalty may have later been modified via a
settlement agreement does not show that the agency knowingly and unjustifiably
treated the appellant differently. See Dick v. U.S. Postal Service , 52 M.S.P.R.
322, 325 (finding that an agency is not required to explain lesser penalties
imposed against other employees whose charges were resolved by settleme nts),
aff’d, 975 F.2d 869 (Fed. Cir. 1992) (Table).
¶31 Finally, t he appellant also asse rted that Officer M.W. received a 90-day
suspension after he was found guilty of driving under the influence and sentenced
to jail time. I -2 AF, Tab 18 at 10. We find that Officer M.W.’s misconduct was
not sufficiently similar to the appellant’s misconduct to render him a proper
comparator.10 See Singh , 2022 MSPB 15 , ¶¶ 13, 18 (holding that the Board
should not attempt to weigh the relative seriousness of various offenses in order
to determine whether two employees who committed different acts of misconduct
were treated disparately) . Having considered the relevant Douglas factors, we
find that removal was a reasonable penalty under the circumstances. See, e.g. ,
Jackson v. Department of the Army , 99 M.S.P.R. 604 , ¶¶ 2, 6, 8 (2005) (finding
9 The same individual served as the deciding official for the appellant’s removal as well
as for Officer J.S.’s removal.
10 To the extent the appellant is alleging that a prior Inspector was treated more
favorabl y than him, I -2 AF, Tab 18 at 4; HT at 282, such an individual does not appear
to be a proper comparator because he was a high -ranking supervisor who was removed
for, among other things, complaints regarding his management style, HT at 283.
Regardless, ev en if he were a proper comparator, the record reflects that, like the
appellant, he was also removed. HT at 283 (testimony of the union representative).
22
that removal of police officers was a reasonable penalty for conspiracy to falsify
firearm tests and lack of candor).
NOTICE OF APPEAL RIG HTS11
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 t he following summary of available appeal rights,
the Merit Systems Protection Board does not provide legal advice on which
option is most appropriate for your situation and the rights described below do
not represent a statement of how courts will rule reg arding which cases fall
within their jurisdiction. If you wish to seek review of this final decision, you
should immediately review the law applicable to your claims and carefully follow
all filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for revi ew with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.
23
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Addi tional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the cour t’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information rega rding pro bono representation
for Merit Systems Protection Board appellants before the 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) Judic ial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discr imination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If t he action involves a claim of discrimination based on
24
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
25
other protect ed activities listed in 5 U.S.C. § 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 p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny 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 wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S.
Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
12 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
26
for Merit Systems Protection Board appellants before the 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/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WATSON_ANDRE_CH_0752_20_0450_I_2_FINAL_ORDER_2059527.pdf | 2023-08-15 | null | CH-0752 | NP |
2,793 | https://www.mspb.gov/decisions/nonprecedential/WATSON_LADONNA_K_CH_0752_16_0404_X_1_FINAL_ORDER_2059528.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LADONNA K. WATSON1,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -16-0404 -X-1
DATE: August 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Hartley David Alley , Esquire, San Antonio, Texas, for the appellant.
Deborah M. Levine , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1 On March 29, 2022, the appellant filed in her other appeal pending before the Board
notice that she has changed her last name from Droke to Watson. Watson v. U.S. Postal
Service , MSPB Docket No. CH -0752 -16-0404 -A-1, Petition for Review File, Tab 9.
Purs uant to the Board’s regulations, this pleading was also served on the agency. Id.
at 5; see 5 C.F.R. § 1201.26 (b)(2). Accordingly, the Board has changed the case
captions of the appella nt’s currently pending appeals to reflect her name change. Any
cases previously heard by the Board that are now closed will still reflect the appellant’s
prior name, LaDonna K. Droke.
2 A nonprecedential order is one that the Board has determined does n ot add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contras t, a
precedential decision issued as an Opinion and 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
FINAL ORDER
¶1 On December 20, 2018, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding the agency
in noncompliance with the Board’s final order in the underlying appeal. Droke v.
U.S. Postal Service , MSPB Docket No. CH -0752 -16-0404 -C-1, Compliance File
(CF), Tab 38, Complian ce Initial Decision (CID), Tab 403; Droke v. U.S. Postal
Service , MSPB Docket No. CH -0752 -16-0404 -I-3, Appeal File, Tab 13, Initial
Decision (ID). For the reasons discussed below, we now find the agency in
compliance and DISMISS the petition for enforceme nt.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 On October 27, 2017, the administrative judge issued an initial decision
mitigating the appellant’s removal to a 60 -day suspension and ordering the
agency to pay her back pay with interest and to adj ust her benefits with
appropriate credits and deductions. ID at 47 -48. The initial decision became the
final decision of the Board on December 1, 2017, after neither party petitioned
the full Board for review. ID at 50.
¶3 On February 6, 2018, the appell ant filed a new MSPB appeal that, as it
effectively argued that the agency improperly mitigated her removal by returning
her to a position geographically remote from her home of record, was construed
and docketed as a petition for enforcement of the Board’ s October 27, 2017 order.
CF, Tab 1 ; CID at 1 -2.
¶4 On December 20, 2018, the administrative judge issued a compliance initial
decision finding the agency in noncompliance. CID. Specifically, the
administrative judge found that the agency did not justify placing the appellant in
3 In a Dece mber 21, 2018 erratum, the administrative judge corrected the compliance
initial decision to the extent it incorrectly stated in one place that the petition for
enforcement was “DENIED” to correctly read that it was “GRANTED.” CF, Tab 40.
3
a position outside of her commuting area and thus had failed to return her as
nearly as possible to the status quo ante. CID at 15 -17. In addition, the
administrative judge found that the agency failed to show that it provided the
appellant the back pay to which she was entitled and failed to provide sufficient
detail regarding its interest calculations. CID at 17 -19. Accordingly, the
administrative judge granted the appellant’s petition for enforcement and ordered
the agency to take the following actions: (1) pay the appellant the appropriate
amount of back pay, with interest, and adjust benefits with appropriate credits and
deductions from the date of her removal (May 13, 2016) through the d ate she
began her detail to the po sition within her local commuting area in Portageville ;
(2) provide a full accounting for any back pay with interest the agency asserts it
had already paid the appellant; (3) restore any annual leave the appellant utilized
between the date of her reinstate ment and the date of her detail to the Portageville
position; and (4) correct any deficiencies with the appellant’s health insurance
coverage or benefits that were related to a change in the appellant’s duty status
occurring between her reinstatement and t he date she began her permanent
position at the Portageville facility. CID at 19 -20.
¶5 Neither party filed any submission with the Office of the Clerk of the Board
within the time limit set forth in 5 C.F.R. § 1201.114 . Therefore, pursuant to
5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance
have become final, and the appellant’s petition for enforcement has been referred
to the Board for a final decision on compliance. Watson v. U.S. Postal Service ,
MSPB Docket No. CH -0752 -16-0404 -X-1, Compliance Referral File (CRF),
Tab 1.
¶6 On March 5, 2019, the agency submitted its response to the comp liance
initial decision. CRF, Tab 2. In its statement, the agency explained that it had
provided the appellant with her back pay related to the original mitigation of her
removal, along with a check for interest on that back pay. Id. at 4-5. The agency
4
included with its submission exhibits that contained a narrative summary of the
back pay and detailed calculations of the back pay. Id. at 48 -78.
¶7 On March 25, 2019, the appellant responded that, although the agency had
taken steps to comply, it was not yet in full compliance. CRF, Tab 3 at 4 -5.
Specifically, the appellant stated that the agency had provided full back pay and
interest for the period of time from her May 2016 removal through her initial
reinstatement in December 2017, but had not yet pr ovided back pay or interest
covering the period in which she was assigned to a position outside of her
commuting area. Id. The appellant also stated that the agency had not, as of the
date of filing, restored her annual leave. Id. at 5. The appellant f inally stated that
the deficiencies regarding her health insurance coverage had been rectified. Id.
¶8 On March 29, 2019, the agency filed a supplemental response stating that it
made the second back pay payment to the appellant and provided detailed
calcula tions of the second payment. CRF, Tab 4 at 4 -13.
¶9 On April 1, 2019, the appellant replied to the agency’s supplemental
response. CRF, Tab 5. The appellant indicated that she had received the second
back pay check and that the agency had restored her a nnual leave, but also stated
that she had not yet received the interest owed on the second back pay payment.
Id. at 3.
¶10 On June 11, 2020, the Board issued an order requesting further information
from the agency regarding both interest payments. CRF, Tab 6 . The Board noted
that the agency failed to provide detailed calculations for either interest payment
and also failed to inform the Board as to whether the second interest payment was
ever made. Id. at 1-2.
¶11 On June 16, 2020, the agency responded to the Board’s June 11, 2020 order.
CRF, Tab 7. In its response, the agency provided evidence that the second
interest payment check was sent to the appellant on April 3, 2019, along with
detailed calculations for the second interest payment. Id. at 4-8.
5
¶12 On June 23, 2020, the appellant replied to the agency’s June 16, 2020
response, stating that she had received the second interest payment and was
satisfied that she was paid the full amount of interest owed for both back
payments. CRF, Tab 8.
ANALYSIS
¶13 Whe n the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compli ance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 ,
¶ 5 (2010).
¶14 Here, the parties’ combined submissions show that the agency has now
reached full compliance with all of the outstanding complian ce obligations
identified in the compliance initial decision. CID at 19 -20. Specifically, the
agency has demonstrated that it made two separate back pay payments to the
appellant, and it has provided detailed calculations of both payments. CRF, Tab 2
at 4-5, 48 -78, Tab 4 at 4 -13. The agency has further shown that it sent the
appellant two separate interest payments for the two back pay payments.4 CRF,
Tab 2 at 5, 48 -49. The appellant’s submissions indicate that she has received all
payments from the a gency and is satisfied they are accurate. CRF, Tab 3 at 4 -5,
4 The agency has provided detailed calculations for the second interest payment but did
not provide calculations for the first interest payment. CRF, Tab 7 at 4 -8. Because the
appellant has indicated that she is satisfied the first interest payment is accurate, we
find the agency compliant with this requirement. CRF, Tab 8 at 3.
6
Tab 5 at 3, Tab 8 at 3. The appellant’s submissions additionally state that the
agency has also corrected all deficiencies with her health insurance coverage and
restored her annual leave. CRF , Tab 3 at 5, Tab 5 at 3.
¶15 Accordingly, in light of the agency’s evidence of compliance and the
appellant’s statements of satisfaction with the agency’s evidence, the Board finds
the agency in compliance and dismisses the petition for enforcement. This is the
final decision of the Merit Systems Protection Board in this compliance
proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1)
(5 C.F.R. § 1201.183 (c)(1)).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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 out at Title 5 of
the United States Co de (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
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this fi nal decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
appropriate for your situation and the rig hts described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide whic h one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellan t seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
8
for Merit Systems Protection Board appellants before the 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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calend ar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer an d to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
9
with the EEOC no later than 30 calendar days after your representative 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
Washingt on, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 th e
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 Re view Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other ci rcuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federa l Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WATSON_LADONNA_K_CH_0752_16_0404_X_1_FINAL_ORDER_2059528.pdf | 2023-08-15 | null | CH-0752 | NP |
2,794 | https://www.mspb.gov/decisions/nonprecedential/SANTIAGO_ARMANDO_DC_4324_20_0796_I_1_FINAL_ORDER_2059533.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ARMANDO SANTIAGO,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-4324 -20-0796 -I-1
DATE: August 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brian Lawler , Esquire, San Diego, California, for the appellant.
Keta J. Barnes , Durham, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, w hich
granted in part and denied in part the appellant’s request for corrective action
under the Uniformed Services Employment and Reemployment Rights Act
(USERRA). For the reasons discussed below, we GRANT the a gency’s petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
for review, and REVERSE the portion of the initial decision that found the
appellant was entitled to differential pay under 5 U.S.C. § 5538 (a). The initial
decision is otherwise AFFIRMED.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 Generally, an employee making a USERRA claim under 38 U.S.C. § 4311
must show that (1) he was denied a benefit of employment, and (2) his military
service was a substantial or motivating factor i n the denial of such a benefit.
Sheehan v. Department of the Navy , 240 F.3d 1009 , 1013 (Fed. Cir. 2001).
However, in a case such as this one, where the benefit in question is available
only to members of the military, element (2) is redundant, and it is unnecessary
for the employee to make an additional showing that his military service was a
substantial or motivating factor. See Adams v. Department of Homeland Security ,
3 F.4th 1375 , 1377 -78 (Fed. Cir. 2021) , certiorari denied , 142 S. Ct. 2835 (2022) ;
Butterbaugh v. Department of Justice , 336 F.3d 1332 , 1336 (Fed. Cir. 2003).
Thus, the only issue to be decided in this case is whether the appellant was
entitled to differential pay under 5 U.S.C. § 5538 (a) ba sed on his active duty
service from October 8, 2018 , through February 22, 2019.
¶3 Title 5 U.S.C. § 5538 (a) provides, in relevant part:
An employee who is absent from a position of employment with the
Federal Government in order to perform active duty in the uniformed
services pursuant to a call or order to active duty under . . . a
provision of law referred to in section 101(a)(13)(B) of title 10 shall
be entitled to [differential pay].
The adminis trative judge found that, whereas the appellant was entitled to
additional military leave under 5 U.S.C. § 6323 (b) only if he served “in support
of a contingency operation,” 5 U.S.C. § 5538 (a) includes no such requirement.
Initial Appeal File ( IAF), Tab 17, Initial Decision (ID) at 9. Accordingly, in
addressing the appellant’s entitlement to differential pay, the administrative judge
did n ot consider whether the appellant was performing active duty in or in
support of a contingency operation. ID at 9 -10. However, as the agency observes
3
on review, 10 U.S.C. § 101 (a)(13) defines the term “contingency operation,” and
the provisions of law listed at 10 U.S.C. § 101(a)(13)(B) are part of that
definition. Hence, the agency argues, the appellant is entitled to di fferential pay
under 5 U.S.C. § 5538 (a) only if he served active duty in a contingency operation.
Petition for Review (PFR) File, Tab 1 at 6 -9.
¶4 Our reviewing court has since endorsed the agency’s interpretation. In
Adams , the court examined the relevant statutory provisions and concluded that
for a claimant to be entitled to differential pay under 5 U.S.C. § 5538 (a), the
claimant “must have served pursuan t to a call to active duty that meets the
statutory definition of contingency operation.” Adams , 3 F.4th at 1378 . Thus,
contrary to the administrative judge’s analysis, the requirements for entitlement
to differential pay under section 5538 (a) are strict er than those for entitlement to
additional leave under section 6323(b). Whereas claimants may be entitled to
benefits under section 6323 if they were called to duty “in support” of a
contingency operation, differential pay under section 5538 (a) is available only to
claimants who were directly called to serve in a contingency operation. Adams ,
3 F.4th at 1379 & n.1. Accordingly, to establish his entitlement to differential
pay under 5 U.S.C. § 5538 , the appellant must show that he served active duty in
a contingency operation, as defined at 10 U.S.C. § 101(13)(B).
¶5 As relevant here, 10 U.S.C. § 101(a)(13)(B) defines the term “contingency
operation” to include:
[A] military operation that . . . results in the call or order to, or
retention on, active duty of members of the uniformed services under
section 688, 12301(a ), 12302, 12304, 12304a, 12405, or 12406 of
this title, chapter 13 of this title, section [3713] of title 14, or any
other provision of law during a war or during a national emergency .
Id. (emphasis added). Our reviewing court has held that the use of the term “any”
indicates that the list of statutory provisions is nonexhaustive and that the phrase
“other provision[s] of law” should be interpreted broadly. O’Farrell v.
Department of Defense , 882 F.3d 1080 , 1084 -85 (Fed. Cir. 2018) . In this case,
4
the appellant was ordered to active duty under 10 U.S.C. § 12301 (d), which is not
one of the specific provisions listed in the definition. IAF, Tab 5 at 6. The
appellant argued, and the administrative judge agreed, that the appellant’s service
nonetheless falls under the catch -all provision of 10 U.S.C. § 101 (a)(1 3)(B), as he
was called to active duty “under a provision of law,” namely 10 U.S.C.
§ 12301 (d), and a national emergency has been in effect since September 11,
2001. ID at 9 -10; see 84 Fed. Reg. 48545 (Sept. 12, 2019) (declaration of the
President continuing the national emergency for the year 2019 -2020).
¶6 However, while our reviewing court has held that the cat ch-all provision of
10 U.S.C. § 101 (a)(13)(B) should be read broadly, it has declined to read the
statute so expansively that any reservist called to duty during a national
emergency would be deeme d to be performing a contingency operation . Adams ,
3 F.4th at 1379 ; see O’Farrell , 882 F.3d at 1086 n.5 (explaining that not all
reservists called to active duty during a national emergency are acting in support
of a contingency operation). Rather, the c ourt has found that the term “any other
provision of law” must be read in the context of the enumerated statutes lis ted in
10 U.S.C. § 101(a)(13)(B), which all involve some connection to the declared
national emergency. Adams , 3 F.4th at 1380 (citing 10 U.S.C. §§ 688 (c),
12031(a), 12302, 12304, 12305, 12406 & chapter 13, and 14 U.S.C. § 3713 ). The
court observed that, in contrast to the enumerated statutes, section 12301(d)
makes no reference to a national emergency, but authorizes the activation of
reservists “at any time . . . with the consent of that member.” Adam s, 3 F.4th
at 1380. Applying the principle of esjudem generis ,2 the court concluded that it
was “implausible that Congress intended for the phrase ‘any other provision of
law during a war or national emergency’ to necessarily include § 12301(d)
2 Under the principle of esjudem generis , “[w]here general words follow specific words
in a statutory enumeration, the general words are construed to embrace only objects
similar in nature to those o bjects enumerated by the preceding specific words.” Circuit
City Stores, Incorporated v. Adams , 532 U.S. 105 , 114 (2001) (quoting 2A N. Singer,
Sutherland on Sta tutes and St atutory Construction , § 47.15 (1991)).
5
voluntary duty that was unconnected to the emergency at hand.” Adams , 3 F.4th
at 1380.
¶7 The court further observed that its reading of the statute i s consistent with
Office of Personnel Management (OPM) guidance, which explicitly provides that
duty qualifying for di fferential pay “does not include voluntary active duty under
10 U.S.C. § 12301 (d).” Id. (quoting OPM , Policy Guidance Regarding
Reservist Differential under 5 U.S.C . § 5538 (OPM Guidance ), 18 (June 2015), ht
tps://www.opm.gov/policy -data-oversight/pay -leave/pay -administration/reservist -
differential/policyguidance.pdf ). The court further noted that OPM’s guidance
explains that the term “contingency operation” means “a military operation that is
designated by the Secretary of Defense as an operation in which members of the
armed forces are or may become involved in milit ary actions, operations , or
hostilities against an enemy of the United States or against an opposing military
force.” OPM Guidance at 22. Here, as in Adams , the appellant does not allege
that he was ordered to perform such service. See Adams , 3 F.4th at 1380.
¶8 Finally, we note that in finding that the appellant was not entitled to
additional leave under 5 U.S.C. § 6323 (a), which limits the benefit to employees
who were absent for military service “as a result of a call or order to active duty
in support of a contingency operation,” the administrative judge found that the
appellant’s training was not even “ in support ” of a contingency operation —much
less part of a contingency operation itself. ID at 7-8. The appellant does not
dispute that finding on review, instead arguing that entitlement to differential pay
under 5 U.S.C. § 5538 (a) does not require that the claimant have been called to
duty in or in support of a contingency operation. However, as discussed above,
our reviewing court has explicitly rejected that interpretation of the statute.
6
¶9 In sum, we find that the appellant is not entitled to differential pay under
5 U.S.C. § 5538 (a).3 Accordingly, we reverse the portion of the initial decision
that granted corrective action regarding the appellant’s claim for differential pay.
The initial decision is otherwise affirmed.
NOTICE OF APPEAL RIGHT S4
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 t his final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and car efully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Having so found, we need not address the agency’s remaining arguments.
Accordingly, we do not make any findings regarding the analysis in then -Member
Robbins’s separate opinion in Marquiz v. Department of Defense , 123 M.S.P.R. 479
(2016) (nonprecedential split vote).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
8
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 allega tions of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for t he 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:
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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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.ms pb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represen tation 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SANTIAGO_ARMANDO_DC_4324_20_0796_I_1_FINAL_ORDER_2059533.pdf | 2023-08-15 | null | DC-4324 | NP |
2,795 | https://www.mspb.gov/decisions/nonprecedential/GODBY_WILLIAM_D_CH_1221_21_0147_W_1_FINAL_ORDER_2058904.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM D. GODBY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -21-0147 -W-1
DATE: August 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Torchia , Esquire, Cincinnati, Ohio, for the appellant .
Matthew O. Kortjohn , Esquire, Dayton, Ohio, for the agency.
Nicholas Kennedy , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The 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
under 5 U.S.C. § 1221 . Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 a pplication 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 req uired procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we 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 Under the evidentiary framework of 5 U.S.C. § 1221 , the Board first
determines whether the appellant has established by preponderant evidence2 that
he made a protected disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C) or (D). See
5 U.S.C. § 1221 (e)(1); Salerno v. Department of the Interior , 123 M.S.P.R. 230,
¶ 5 (2016); 5 C.F.R. § 1209.7 (a). Next, the Board determines whether the
protected disclosure or protected activity was a contributing factor in the
personnel action that was threatened, proposed, taken, or not taken. See 5 U.S.C.
§ 1221 (e)(1); Salerno , 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1209.7 (a). If the
respondent makes both of these showings by preponderant evidence, the burden
of persuasion shifts to the agency to demonstrate by clear and convincing
2 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
3
evidence3 that it would ha ve threatened, proposed, taken, or not taken the same
personnel action in the absence of the disclosure or other protected activity. See
5 U.S.C. § 1221 (e)(2); Salerno , 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1209.7 (b); see
also Carr v. Social Security Administrati on, 185 F.3d 1318 , 1322 (Fed. Cir.
1999) .
¶3 In determining whether an agency has met its burden by clear and
convincing evidence, the Board will consider the following factors, which were
coincidentally first set forth in Carr : (1) the strength of the agency’s evidence in
support of the personnel action; (2) the existence and strength of any motive to
retaliate on the part of the agency offic ials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated. Carr , 185 F.3d
at 1323. The Board does not view these factors as dis crete elements, each of
which the agency must prove by clear and convincing evidence, but instead
weighs the factors together to determine if the evidence is clear and convincing as
a whole. Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 42 (2016).
Our reviewing court has further clarified that “[e]vidence only clearly and
convincingly supports a conclusion when it does so in the aggregate considering
all the pertinent evidence in the record, and despite the evidence that fairly
detracts from that conclusion.”4 Whitmore v. Department of Labor , 680 F.3d
1353 , 1367 -68 (Fed. Cir. 2021).
3 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 estab lished.
5 C.F.R. § 1209.4 (e).
4 The court made that statement in the course of explaining that Congress imposed a
heightened burden of proof on the agency to compensate for the “evidentiary
disadvantages” faced by whistleblowers. Whitmore v. Department of Labor , 680 F.3d
1353 , 1367 -68 (Fed. Cir. 2021); see 135 Cong. Rec. H747 -48 (daily ed. Mar. 21, 1989)
(explanatory statement on Senate Amendment S. 20) (explaining that the hi gher burden
of proof required of the agency “recognizes that when it comes to proving the basis of
an agency’s decision, the agency controls most of the cards —the drafting of the
documents supporting the decision, the testimony of witnesses who participate d in the
4
¶4 In its petition for review, the agency contends that the administrative judge
did not consider all the record evidence, as required under Whitmore . Petit ion for
Review (PFR) File, Tab 1. However, as the administrative judge observed, the
agency made no attempt below to show by clear a nd convincing evidence that, in
the absence of the appellant’s whistleblowing, it still would not have selected him
for the Operations Manager in 201 7.5 Rather than acknowledge its burden of
proof, the agency instead contended that the burden of proof was on the appellant
to show that his qualifications were “plainly superior” to that of the selectee.
Hearing Transcript , Day 3 at 623 -24. In effect, the agency waived its opportunity
to rebut the appellant’s prima facie case of retaliation.
¶5 The agency’s attempt to shift the burden of proof to the appellant is
unavailing. On review, the agency argues that evaluating the select ee’s
qualifications is “especially vital” in individual right of action ( IRA) appeals of
nonselections, because in nonselection cases arising under Title VII of the Civil
Rights Act of 1964 (Title VII),6 a complainant can only prove an illegal hiring
practice if his qualifications are “plainly superior” to those of the selectee. This
is so, the agency argues, because “Title VII is not a vehicle for substituting the
judgment of a court for that of the emp loyer.” PFR File, Tab 1 at 9 (quoting
Jiminez v. Mary Wash. Coll. , 57 F.3d 369 , 377 (4th Cir. 1995)). While the
agency concedes —as it must —that this case is not governed by Title VII, it
decision, and the records that could document whether similar personnel actions have
been taken in other cases”). It is evident that in creating and interpreting the “clear and
convincing evidence” standard, Congress and the Whitmore court were p rimarily
concerned with ensuring that the interests of the whistleblower are protected. See
Whitmore , 680 F.3d at 1368 (observing that the W histleblower Protection Act “makes
clear that whistleblowing provides an important public benefit that must be enco uraged
when necessary by taking away fear of retaliation”).
5 Conspicuously, the words “clear and convincing” appear nowhere in the hearing
transcript or any of the agency’s pleadings below.
6 The petition refers to “Title VII of the Rehabilitation Act ,” but we assume this was a
drafting error.
5
asserts that “the principles underlying Title VII non -select ion case law exist with
equal force in this appeal” and that by failing to consider the qualifications of the
selectee, “the Board is substituting its ju dgment for that of the Agency.” PFR
File, Tab 1 at 9. However, the agency has not cited any authority to support its
assertion that Title VII standards should apply in an IRA appeal of a
nonselection, and we are not aware of any. Rather, the relevant st atute makes it
clear that in an IRA appeal, the burden lies with the agency to prove by clear and
convincing evidence that it would have taken the same action in the absence of
the appellant’s whistleblowing. 5 U.S.C. § 1221 (e)(2). As discussed above, the
agency did not accept or attempt to meet that burden. Accordingly, we affirm the
administrative judge’s finding that the appellant is entitled to corrective action
with respect to his 2017 nonse lection .
ORDER
¶6 We 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 ORD ER 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.
¶7 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).
¶8 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
6
with the office that issued the initial dec ision 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 inclu de the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶9 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 timel y 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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.), sec tions 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 APPELLAN T REGARDING
YOUR RIGHT TO REQUES T 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
7
reasonable and foreseeable consequential damages. To be paid, you must m eet
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
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 PARTIE S
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 determinat ion 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 RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described be low do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to y our particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Cir cuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pet itioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any atto rney will accept representation in a given 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 s uch action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision bef ore you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling c ondition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can b e found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
10
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision be fore you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
11
review within 60 day s 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 petit ion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websit e, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representatio n for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeal s 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 throu gh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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. Missin g 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 d amages) 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 Remed y 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 e arning 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 CEN TER CHECKLIST FOR BA CK 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 (Payro ll/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 P ayment 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. Provid e 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. | GODBY_WILLIAM_D_CH_1221_21_0147_W_1_FINAL_ORDER_2058904.pdf | 2023-08-14 | null | CH-1221 | NP |
2,796 | https://www.mspb.gov/decisions/nonprecedential/MCCLAIN_LEAZURE_KIM_S_CB_7521_17_0007_T_1_REMAND_ORDER_2059006.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KIM S. MCCLAIN -LEAZURE ,
Petitioner,
v.
SOCIAL SECURITY
ADMINISTRATION ,
Respondent.
DOCKET NUMBER
CB-7521 -17-0007 -T-1
DATE: August 14, 2023
THIS ORDER IS NONPRECEDENTIAL1
Kim S. McClain -Leazure , Calera, Alabama, pro se.
Marcus Johns , Esquire, and Natalie Liem , Esquire, Atlanta , Georgia, for
the agency .
BEFORE
Cathy A. Harris , Vice C hairman
Raymond A. Limon , Member
REMAND ORDER
¶1 The appellant2 has filed a petition for review of the initial decision , which
found she was not constructively removed from her administrative law 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 ad ministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Although proceedings under 5 C.F.R. § 1201.142 do not lie within our appellate
jurisdiction, for the sake of clarity we follow our usual practice of referring to the
2
(ALJ) position. For the reasons discussed below, we GRANT the appellant’s
petition for rev iew, VACATE the initial decision, and REMAND the case to an
ALJ for further adjudi cation in accordance with this Remand Order.
BACKGROUND
¶2 Prior to her resignation, the appellant was an ALJ with the agency’s Office
of Dis ability Adjudication and Review in Mobile, Alabama. Initial Appeal File
(IAF), Tab 1 at 7. In October 2015, the p arties entered into a settlement
agreement that resolved a pending complaint before the Equal Employment
Opportunity Commission (EEOC) . IAF, Tab 53 at 3 -9. In exchange for
consideration including a lump sum payment and leave adjustments , the appellant
agreed to the withdrawal and dismissal of the EEOC complaint as well as all
pending equal employment opportunity (EEO) complaints and pending complaints
with the Office of Special Counsel. Id. at 3-5. The agreement also contained a
waiver of appeal rights concerning the events underlying the EEOC complaint
and any employment -related actions that occurred before the agreement’s
effective date :
Complainant represents that she will file or submit no other
complaints, grievances, or administrative or judicial a ctions with
respect to the events underlying this complaint with any
administrative agency, arbitrator, Court, or legislative body.
Additionally, Complainant represents that she will not file a
complaint, grievance, or administrative or judicial action ag ainst the
agency, or any officer or employee thereof, with respect to any
action that relates to or arises out of her employment with the agency
and that occurred prior to the effective date of this Settlement
Agreement.
Id. at 5.
¶3 The appellant remained in her position, but on or about October 4 , 2016,
she submitted a letter of resignation , citing her medical condition and the
complainant as the “appellant.” See, e.g. , McDougall v. Social Security Administration ,
114 M.S.P.R. 534 , ¶ 1 (2010) .
3
agency’s alleged failure to provide reasonable accommodation. IAF, Tab 55 at 7.
On October 24, 2016, the agency issued a Standard Form 50 -B recording her
resignation effective that same day. IAF, Tab 1 at 7. The appella nt subsequently
filed an appeal form with the Board. Id. at 1-5. On the form, she indicated that
she had involuntarily resigned and raised claims of whistleblower retaliation and
denial of reasonable accommodation. Id. at 3.
¶4 The case was assigned to an ALJ. IAF, Tab 2. At the outset of the hearing,
the a gency moved to exclude any testimony concerning events that occurred
before October 10, 2015, the effective dat e of the settlement agreement . Hearing
Transcript (HT) (May 10, 2017) at 15 -16, 22. The presiding ALJ granted the
motion over the appellant’s objections. Id. at 26. Following the hearing, the
presiding official issued an initial decision finding that the appellant failed to
show that her resignation was involuntary and that she therefore had no right to
appeal to the Board. IAF, Tab 56, Initial Decision (ID) at 2, 28-29. The
presiding ALJ further found that, in the absence of an appealable action , the
Board also lacked jurisdiction over the appellant’s claims of whistleblowing
reprisal and failure to accommodate. ID at 22 -25, 26 -27.
¶5 In her petition for review, the appellant argues that the presiding ALJ erred
in his ruling excluding testimony concerning events before October 10, 2015.
Petition for Review (PFR) File , Tab 1 at 5-16. She contends that the waiver
provision extends no further than the specifi c claims at issue in the formal EEOC
complain t and that the agency voided the agreement by breaching it . Id. She
further asserts that the agency made misrepresentations before the Board and that
the presiding ALJ made inappropriate comments and interrupt ions that took a toll
on her health and deprived her of a full and fair hearing. Id. at 16-18. She
contests various findings of fact in the initial d ecision and submits additional
evidence, including medical documentation concerning her disability . Id.
at 18-30, 32 -91. The agency has filed a response. PFR File, Tab 3.
4
ANALYSIS
¶6 Section 7521 of Title 5 of the U.S. Code provides that an ALJ may be
removed only for good cause determined by the Board after opportunity for a
hearing . While proceedings under 5 U.S.C. § 7521 are typically initiated by the
employing agency, the Board’s regulation at 5 C.F.R. § 1201.142 provides that an
ALJ who alleges a constructive removal or other action in violation of 5 U.S.C.
§ 7521 may file a complaint with the Board, to be processed and adjudicated in
the same m anner as an agency complaint seeking discip linary action. In such a
case, the only issue before the Board is whether the alleged action falls under
5 U.S.C. § 75213 and was taken prior to the hear ing and Board decision required
under that section. Matter of Doyle , 29 M.S.P.R. 170 , 174 (1985), superseded by
regulation on other grounds as stated in Mahoney v. Donovan , 721 F.3d 633 , 637
(D.C. Cir. 2013). A showing to that effect is suffi cient to establish that the
agency acted unlawfully and that the ALJ is entitled to relief. Id. Like all cases
involvi ng actions against ALJs under 5 U.S.C. § 7521 , complaints filed under
5 C.F.R. § 1210.142 lie within the Board’s original jur isdictio n. McDougall v.
Social Security Administration , 114 M.S.P.R. 534 , ¶ 6 (2010); 5 C.F.R.
§ 1201.2 (c).
¶7 To establish a constructive removal claim under 5 C.F.R. § 1201.142 , the
appellant must establish that her decision to leave the position of ALJ was
involuntary under the same standard used in appeals implicating 5 U.S.C. § 7512 .
Tunik v. Social Security Administration , 93 M.S.P.R. 482 , 493 (2003), vacated on
other grounds , 407 F.3d 1326 (Fed. Cir. 2005 ); see 70 Fed. Reg. 48081, 48 081
(Aug. 16, 2005) (revising section 1201.142 to comport with the Tuni k standard ),
adopted as final , 71 Fed. Reg. 34231 (June 14, 2006); see also Mahone y,
3 Section 7521 covers the following actions: a removal, a suspension, a reduction in
grade, a reduction in pay, and a furlough of 30 days or less. 5 U.S.C. § 7521 (b).
5
721 F.3d at 637 (acknowledging the 2005 revision).4 Under that standard, a
decision to resign is presumed to be a voluntary act outside the Board’s
jurisdiction, and the appellant bears the burden of establishing by preponderant
evidence that her resignation was involuntary and therefore tantamount to a
forced removal. Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110 ,
¶ 5 (2010). To overcome the presumption that resigna tion is voluntary, the
employee must show that it was the result of the agency’s misinformation or
deception or that she was coerced by the agency. Id. When, as in this case, the
appellant alleges that her resignation was coerced by the agency’s creating
intolerable working conditions, she must show that a reasonable person in her
position would have found the working conditions so oppressive that she would
have felt compelled to resign. Id.; Heining v. General Services Administration ,
68 M.S.P.R. 513 , 520 (1995). As is the case with all alleged constructive actions,
the appellant must demonstrate that (1) she lacked a meaningful choice i n the
matter, and (2) it was the agency’s wrongful actions that deprived her of that
choice. See Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 8 (2013).
¶8 In determining whether a resignation is voluntary, the Board considers
allegations of discrimination and retaliation insofar as they relate to the issue of
voluntariness and does not address whether the evidence is sufficient to prove
unlawful discrimination or retaliation.5 Neice v. Department of Homeland
Security , 105 M.S.P.R. 211 , ¶ 8 (2007); Markon v. Department of State ,
71 M.S.P.R. 574 , 578 (1996); Burke v. Department of the Treasury , 53 M.S.P.R.
434, 439 (1992). Hence, for purposes of determining o ur jurisdictio n, we do not
reach the question of whether the appellant was subjected to a hostile work
4 The regulation was again revised in 2012 to correct a typographical error. See
77 Fed. Reg. 62350, 62359 (Oct. 12, 2012).
5 Conversely, if an agency’s actions do constitute unlawful discrimination or retaliation,
the appellant still must show how those actions coerced her resignation. Tripp v.
Department of the Air Force , 59 M.S.P.R. 458 , 461 (1993).
6
enviro nment in violation of the Whistleblower Protection Act or the
antidiscrimination statutes.6 For the same reason, we need not decide to what
extent the appellant may have wa ived her right to assert such claim s when she
entered into the settlement agreement .7 In any event, the settlement agreement’s
waiver provision covers the filing or submission of complaints, grievances, or
administrative or judicial actions “with respect to the events underlying ” the
complaint of discrimination . IAF, Tab 53 at 3 -4. It does not prohibit the
appellant from filing an administrative action concerning events occurring after
the effective date of the settlement agreement, like this appeal, and submitting
relevant evidence during the course of that permissible action that predates the
settlement agreement . Therefore, the question before us is whethe r, for whatever
reasons, a reasonable person in the appellant’s position would have found her
working conditions so oppressive that she would have felt compelled to resign.
See Heinin g, 68 M.S.P.R. at 520 .
¶9 The U.S. Court of Appeals for the Federal Circuit has held that in
determining whether a reasonable person in the appellant’s position would have
felt compelled to resign, the Board “need not limit itself to any particular
timeframe.” Terban v. Department of Energy , 216 F .3d 1021 , 1024 (Fed. Cir.
2000). The most probative evidence o f involuntariness will usually be events
occurring a relatively short period of time between the alleged coercive act a nd
the employee’s resignation. Id. In contrast, a long period of time between the
6 Similarly, the agency’s alleged failure to provide the appellant reasonable
accommodation is simply a factor to be considered in assessing whether her resignation
was involuntary. Brown v. U.S. Postal Service , 115 M.S.P.R. 609 , ¶ 16, aff’d ,
469 F. App’x 852 (Fed. Cir. 2011).
7 To the extent the appellant contends the agency breached the agreement, PFR File,
Tab 1 at 9, we are u nable to address that allegation . The Board does not have authority
to enforce or invalidate a settlement agreement reached in another forum. See Lee v.
U.S. Postal Service , 111 M.S.P.R. 551 , ¶ 4 n.2 (2009), aff’d , 367 F. App’x 137 (Fed.
Cir. 2010). The appellant’s request for the Board to find the agency has breached the
terms of the agreement is tantamount to a request for enforcement of the agreement.
See Lopez v. U.S. Postal Service , 71 M.S.P.R. 461 , 463 (1996).
7
alleged coercive act and the employee’s resignation d iminishes the causal link
between the two events and, thus, attenuates the employee’s claim of
involuntariness. Id. Thus, in Terban , the Federal Circuit found that the Board
acted within its discretion in giving relatively little weight to events that oc curred
more than 14 days prior to the appellant’s retirement in determining whether h e
was coerced into retirement. Id. Rather, the court found the appellant’s own
actions in tolerating a long period of what he considered to be harassment
indicate that h e had an alternative to retirement. Id. at 1024 -25. Similarly, in
Searcy v. Department of Commerce , 114 M.S.P.R. 281 (2010), a case involving
an alleged involuntary resigna tion, the Board found that when the allegedly
coercive acts by the agency were raised in an EEO complaint filed 5 months
before the appellant’s resignation, the lapse in time undercut the appellant’s claim
of involu ntary resignation . Id., ¶ 13. Thus, events occurring prior to the
settlement agreement, which became effective approximately 1 year before the
appellant’s resignation , are entitled to relatively little weight.
¶10 Nonetheless, in determining whether a reasonable person in the appellant’s
position would have felt compelled to resign, the Board is required to consider
the totality of the circumstances, including events not immediately preceding the
resignation. Shoaf v. Department o f Agriculture , 260 F.3d 1336 , 1342 (Fed. Cir.
2001) . As the Federal Circuit has explained, “s uch events must, at a minimum, be
considered to pl ace events occurring more immediately preceding the appellant’s
resignation into the proper context. ” Id. at 1343. In granting the agency’s motion
to exclude testimony concerning events that occurred before October 10, 2015,
the presiding ALJ found Shoaf was distinguishable because it did not involve a
waiver provision such as the one at issue here. HT (May 10, 2017) at 24 -25; ID
at 6 n.4. We find, however, that the waiver provision does not preclude us from
considering prior events for the limited purp ose described in Shoaf , i.e., to
develop the “contextual landscape” for better understanding the allege dly
coercive acts that followed. See 260 F.3d at 1343 n.3.
8
¶11 Accordingly, we remand this case for further development of the record, to
include any relev ant testimony concerning events preceding the settlement
agreement .8 The ALJ retains broad discret ion to exclude or limit testimony when
it has not been shown that the testimony would be relevant, material, and
nonrepetitious . See, e.g. , Box v. U.S. Postal Service , 51 M.S.P.R. 401 , 405 n.2
(1991) (finding that the administrative judge properly limited the appellant’s
cross -examination o f a witness by excluding questions that the appellant failed to
show would have produced relevant and material evidence) . When the record has
been fully developed, t he ALJ should ma ke a new finding as to whether the
appellant’s resignation constitutes a c onstructive removal for purposes of
5 U.S.C. § 7521 and 5 C.F.R. § 1201.142 .
ORDER
¶12 For the reasons discussed above, we remand this case to an ALJ for further
adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
8 We discern no abuse of discretion in the presi ding ALJ’s decision not to admit a
Standard Form 2810 , which indicates that the appellant’s enrollment in the Federal
Employee Health Benefits program ended effective October 2, 2016. IAF, Tab 53 at 1,
Tab 54 at 96. Contrary to the appellant’s assertions , the document does not indicate the
date of her termination and has no apparent relevance to the voluntariness of her
resignation. We have also considered the appellant’s allegation that the presiding ALJ
made inappropriate comments and interruptions tha t deprived her of a full and fair
hearing. PFR File, Tab 1 at 17. However, we find the presiding ALJ’s conduct during
the hearing does not evidence “ a deep -seated favoritism or antagonism that would make
fair judgment impossible.” Bieber v. Department o f the Army , 287 F.3d 1358 , 1362 -63
(Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). | MCCLAIN_LEAZURE_KIM_S_CB_7521_17_0007_T_1_REMAND_ORDER_2059006.pdf | 2023-08-14 | null | CB-7521 | NP |
2,797 | https://www.mspb.gov/decisions/nonprecedential/ZERMAN_LAWRENCE_R_CH_0752_22_0009_I_1_REMAND_ORDER_2058443.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAWRENCE R. ZERMAN,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-0752 -22-0009 -I-1
DATE: August 11, 2023
THIS ORDER IS NONPRECEDENTIAL1
Lawrence R. Zerman , St. Louis, Missouri, pro se.
Eric J. Teegarden , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition f or review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction . For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision , and REMAND the case to the Central Regional Office for further
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the B oard’s case law. See 5 C.F.R. § 1201.117 (c).
2
adjudication as an individual right of action (IRA) appeal in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant retired from a position with the Department of Agriculture i n
April 2003. Initial Appea l File (IAF), Tab 7 at 18 -19. In November 2004, the
Department of the Army appointed him as a reemployed Civil Service Retirement
System annuitant. Id. at 16 -17. The Standard Form 50 (SF-50) that me morialized
his appointment noted , “[a]s a reemployed annuitant, you serve at the will of the
appointing officer.” Id. at 17 . The agency terminated his employment in August
2021 . Id. at 15-16.
¶3 The appellant filed this appeal of his termination with the Board. IAF,
Tab 1 at 1, 3 . He did not register as an e -filer. In the Acknowle dgment Order
that confirmed receipt of the appeal, the administrative judge informed the
appellant that generally the Board may not have jurisdiction over his termination
because he was a reemployed annu itant. IAF, Tab 2 at 2. The o rder required the
appe llant to file evidence and argument establishing the Board’s jurisdiction over
the appeal and provide the agency with an opportunity to reply . Id. The
appellant responded, and the agency replied to his response. IAF, Tab 6, Tab 7
at 6-8.
¶4 On December 13, 2021, the administrative judge issued a more specific
order advising the appellant that if he continued to receive an annuity while
reemployed, he had “no general right” to appeal his separation to the Board. IAF,
Tab 8 at 2. She noted ex ceptions to this rule, including for a claim of reprisal for
engaging in certain protected activity or making a protected disclosure. Id. at 2-3
& nn.1 -3. She again ordered the appellant to show cause why his appeal should
not be dismissed for lack of Bo ard jurisdiction. Id. at 4. She instructed him to
respond by December 22, 2021 , and advised the parties that the record on
jurisdiction would close on that date . Id. at 1, 4.
3
¶5 After receiving no response to her December 13, 2021 order, the
administrati ve judge issued an initial decision on January 4, 2022 , dismissing the
appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1, 5 . The
initial decision stated that it would become final on February 8, 2022, unless a
petition for review wa s filed by that date. ID at 5. On January 4, 2022, the
appellant submitted a response to the order to show cause in which he asserted the
agency terminated his employment in retaliation for his prior whistleblowing
activity. Petition for Review (PFR) Fi le, Tab 1 at 5. The following day, the
administrative judge issued an order rejecting and returning the submission of the
appellant’s response faxed on January 4, 2022 , because the record had closed and
she had issued an initial decision. Id. at 4.
¶6 The appellant filed a petition for review, which t he Office of the Clerk of
the Board received on February 16, 2022. PFR File, Tab 1 at 1, Tab 2 at 1 . He
argues that based on his lengthy employment with the agency, the Board has
jurisdiction over his appeal. PFR File, Tab 1 at 103. He further asserts that he
timely faxed a request for an extension of time to respond to the order to show
cause on December 21, 2021 , and has attached a fax receipt. PFR File, Tab 1
at 3, 6-7. He has also filed a motion to accept his petition for review as timely .
PFR File, Tab 2 at 1-2, Tab 3. Additionally, in the motion, he asserts that he
mailed the petition for review to the Board on February 1, 2022. PFR File, Tab 3
at 1. The record includes a copy of the envelope in which the petition for review
and attachments were mailed. PFR File, Tab 1 at 10 -11. The envelope does not
show any postmark information. Id. The agency has responded to the petitio n for
review. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant timely filed his petition for review.
¶7 The initial decision in this case was issued on January 4, 2022. ID at 1 ;
IAF, Tab 10 . To be timely, a petition for review must be fil ed within 35 days of
4
the date of the initial decision’ s issuance or, if the decision was received more
than 5 days after the date of issuance, within 30 days after receipt. Gaetos v.
Department of Veterans Affairs , 121 M.S.P.R. 201 , ¶ 4 (2014) ; 5 C.F.R.
§ 1201.114 (e). The appell ant has the burden of proof on timeliness. Wrighten v.
Department of the Army , 92 M.S.P.R. 71 , ¶ 3 (2002); 5 C.F.R.
§ 1201.56 (b)(2)(i)(B). Here, the appellant has not alleged that the initial de cision
was received more than 5 days after the date of issuance. Accordingly, t he
deadline for the appellant to file his petition for review was 35 days after the
initial decision was issued, which was February 8, 2022. PFR File, Tab 2 at 1 ;
see Gaetos , 121 M.S.P.R. 201 , ¶ 4 (concluding that, because an appellant had not
alleged that she received the initial decision more tha n 5 days after its issuance,
her deadline to file the petition for review was 35 days after the initial decision
was issued) .
¶8 The appellant mailed his petition for review. PFR File, Tab 1 at 10 -11.
However, the envelope in which the petition was mailed does not bear a
postmark. PFR File , Tab 1 at 10. The date of filing by mai l is determined by the
postmark but when , as here, the postmark is missing, the Board will presume that
the submis sion was mailed 5 business days prior to receipt . 5 C.F.R. § 1201.4 (l).
In this instance, 5 business days prior to the Boar d’s February 16, 2022 receipt of
the petition was Februa ry 9, 2022, which would render the petition untimely filed
by 1 day.
¶9 Notwithstanding the 5 -day mailing presumption, a party may establish that
his pleading was timely filed by presenting credible, unrebutted evidence in the
form of an affidavit or sworn statement that his pleading was actually placed in
the Postal Service mail stream before the filing deadline. Raphel v . Department
of the Army , 50 M.S.P.R. 614 , 617-18 (1991) (finding that the presumption a
pleading was mailed on the date it was postmark ed may be rebutted by presenting
credible, unrebutted evidence in the form of an affidavit or sworn statement that,
despite the postmark date, the pleading was actually placed in the Postal Service
5
mail stream before the filing deadline and thus was timely filed ). Generally, an
appellant’s affidavit stating only that he mailed his petition for review on a
particular date prior to the deadline , without any specific details concerning the
mailing, is insufficient to establish that he timely placed the petition in the mail
stream. Gaydon v. U.S. Postal Service , 62 M.S.P.R. 198, 200, 202-03 (1994).
¶10 In a sworn statement on review , the appellant state s that he “mailed [the]
petition [for review] to the Board on February 1, 2022[,] one week in advance of
the deadline of February 8, 2022.” PFR File, Tab 3 at 1 -2. This affidavi t alone is
not sufficiently specific to rebut the presumption that the appellant mailed his
petition for review on February 9, 2021 . However, a lthough not raised by the
parties , we take official notice that in January and February 2022 , the U.S. Postal
Service experienced mailing delay s in St. Louis , Missouri, and Washington, D.C.
due to, among other factors, winter weather and staffing issues caused by the
COVID -19 pandemic. See Christine Byers & Robert Townsend , Postal service
experiencing “challenge” in deliveries due to St. Louis storm , 5 On Your Side
(Feb. 4, 2022) , https://www.ksdk.com/article/news/local/postal -service -delays -st-
louis -snow -storm/63 -d8eeedb2 -941c -4672 -9eab -290834e50a18 ; Justin Wm.
Moyer, Frustration builds in D.C. region over mail d elays, Washington Post
(Jan. 11, 2022 ), https://www.washingtonpost.com/dc -md-va/2022/01/11/dc -mail -
delays -snow -covid/ ; see also 5 C.F.R. § 1201.64 (reflecting that the Board may
take official notice of a fact that is common knowledge or that can be verified ,
thus satisfying a party’s burden of proving that fact ). In the comparable
circumstance of a party’s alleged delayed receipt of mail between the United
States and the Philippines, the Board has recognized t hat mail delivery between
the two locations is frequently slow. Exala v. Office of Personnel Management ,
84 M.S.P.R. 277 , ¶ 3 (1999 ). Considering these delays, the Board has found it
was not unreasonable to believe an appellant’s unrebutted assertion that it took
over 5 weeks for a Board order to reach him in the Philippines . Id., ¶¶ 1-3.
Similarly, w e find that the mail delays during the February 2021 period lend
6
credence to the appellant’s claim that he mailed the petition on February 1, 2021 ,
particularly because it appears that he mailed his petition fr om St. Louis to
Washington, D.C . PFR File, Tab 1 at 10 -11. Therefore, we conclude that the
appellant met his burden of proof that he timely mailed his petition for review to
the Board.
The administrative judge properly found that the Board lacks chapter 75
jurisdiction over the appellant’s termination.
¶11 The appellant alleges on review that his over 16 years of tenure as a
reemployed annuitant brought him within the definition of an “employee” under
chapter 75 , and thus he has the right to appeal his termination to the Board. PFR
File, Tab 1 at 1 -3. The administrative judge found that the appellant failed to
make a nonfrivolous allegation of Board jurisdiction over his appeal. ID at 2 -3.
To the extent that the administrative judge was addressing the Board’s chapter 75
jurisdiction, we agree .
¶12 An individual receiving an ann uity under the Civil Service Retirement
System (CSRS) or the Federal Employees’ Retirement System “serves at the will
of the appointing authority.”2 5 U.S.C. § 3323 (b)(1). As a consequence, a
reemployed annuitant generally has no right to appeal his termination to the
Board. Delalat v. Department of the Air Force , 103 M.S.P .R. 448 , ¶ 11 (2006) .
Following his appointment, the appellant continued to receive annuity payments,
as reflected on his appointment SF -50 by the annuity designation “CS -No
Reduction,” meaning his CSRS annuity continued after appointment without a
reduction to his salary. IAF, Tab 7 at 17; see Office of Personnel Management,
Annuity Indicator, https://dw.opm.gov/datastandards/re ferenceData/1396/current
(last visited Aug. 10, 2023 ).
2 There is an exception for administrative law judges; however, that provision does not
apply here. 5 U.S.C. § 3323 (b)(2). The appellant was reemployed as a Human
Resources Specialist. IAF, Tab 7 at 15 -17.
7
¶13 The appellant argues that the agency appointed him to a “hard to fill”
position from which it did not terminate him in 2010, “when the necessity” for his
position ceased, or in 2013, when “[t]he agen cy was directed for fiscal reasons to
terminate all employees who could be terminated quickly.” PFR File, Tab 1
at 1-2. He also argues that the agency treated him as a “non -reemployed
annuitant.” Id. at 2. In essence, he reiterates his claim below that his
“cont inuous” employment gave him a “property right” to his position. IAF, Tab 6
at 1-2; PFR File, Tab 1 at 2 -3.
¶14 To the extent the appellant is arguing that he had a right to appeal his
termination under chapter 75, he is mistaken. T he definition o f an employee with
adverse action appeal rights to the Board under ch apter 75 is found at 5 U.S.C.
§ 7511 (a)(1) . Bryant v. Department of the Army , 2022 MSPB 1 , ¶ 8. Regardless
of the length of nature of a reemployed annuitant’s service, he is expressly
excluded from this definition by 5 U.S.C. § 7511 (b)(4) . That provision explains
that the definition of “employee” with chapter 75 appeal rights does not include
an individual who is receiving a Federal civil service annuity. 5 U.S.C.
§ 7511 (b)(4). Further, an individual cannot establish that he meets the definition
of employee under 5 U.S.C. § 7511 (a)(1) under a co ntinuing contract theory.
Williams v. Merit Systems Protection Board , 892 F.3d 1156 , 1161-64 (Fed. Cir.
2018). Absent jurisdiction over the appellant’ s termination, we cannot review
whether the agency denied him due process . Bryant , 2022 MSPB 1 , ¶ 10.
We remand the appeal for a determination of whether the Board has IRA
jurisdiction over the appellant’s whistleblower reprisal claim.
¶15 On review, the appellant argues that the administrative judge improperly
rejected his January 4, 2022 response to the order to show cause, in which he
raised a claim of whis tleblower reprisal . We agree that the proceedings below
leave open the question of the Board’s jurisdiction over a potential IRA appeal,
and we remand for the appellant to receive specific notice, and have an
opportunity to respond , on the issue of Board IRA jurisdiction over his appeal .
8
¶16 In her December 13, 2021 order to show cause, the administrative judge
advised the appellant of certain exceptions to the Board’s general lack of
jurisdiction over termination claims brought by reemployed annuitants, inc luding
an exception for IRA appeals. IAF, Tab 8 at 2 -3 & nn.1 -3; see Soto v.
Department of Veterans Affairs , 2022 MSPB 6 , ¶ 4 n.1 (co ncluding that
reemployed annuitants are not excluded from the Board’s IRA jurisdiction). The
appellant asserts on review that on December 21, 2021, the day before the
deadline for his response, he faxed a response to this order “ [r]equest [ing] an
extensio n to respond until January 5, 2022, due to unavailability of [his] advisor
during the current holiday season.” IAF, Tab 8 at 4; PFR File, Tab 1 at 3.
Although the appellant’s extension request is not in the record below , he has
provided a copy on review , which included a fax receipt reflecting that the
submission was successfully transmitted to the Board’s Central Regional Office’s
fax number on December 21, 2021 . PFR File, Tab 1 at 6 -7. The agency has
acknowledged on review that he made an extension re quest on that date. PFR
File, Tab 1 at 6 -7, Tab 4 at 6. Based on this evidence, we find that the appellant
timely requested an extension. Odom v. U.S. Postal Service , 67 M.S.P.R. 511 ,
513-14 (1995) (determining that a petition for review was timely filed when the
appellant’s counsel submitted an unrebutted declar ation affirming that he faxed
the petition before the deadline passed, along with a fax sheet indicating
successful transmission).
¶17 Further, o n January 4, 2022, the appellant filed his response to the order to
show cause, asserting for the first time that his termination was the result of
whistleblower reprisal. PFR File, Tab 1 at 5. The administrative judge rejected
this submission on the basis that the record for jurisdiction had closed and she
had issued her initial decision . Id. at 4-5. Determining when to close the record
is a matter within the sound discretion of the administrative judge. Robinson v.
Department of the Army , 50 M.S.P.R. 412 , 419 (199 1). Nonetheless, when, as
here, an appeal is decided without a hearing, the procedures used must comport
9
with the basic requirements of fairness and notice, including an opportunity to
respond to submissions of the parties . Id. We find that the administrative judge’s
earlier failure to rule on the appellant’s extension request created confusion for
this pro se appellant that may have delayed his assertion of his whistleblower
reprisal claim . IAF, Tab 1 at 6. Further , the issue of 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 . Moncada v. Executive Office of the President ,
2022 MSPB 25 , ¶ 12. Therefore, we have considered the appellant’s assertion of
whistleblower reprisal.
¶18 The appellant’s submission is not sufficient to establish IRA jurisdiction.
To do so , an appellant must have exhausted his administrative remedies before
the Office of Special Counsel (OSC) and make nonfrivolous all egations of the
following: (1) he made a protected disclo sure described under 5 U.S.C.
§ 2302 (b)(8) or engaged in protected acti vity as specified in 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a co ntributing fa ctor in the agency’ s decision to take or fail to take, or
threaten to take or fail to take, a personnel action as defin ed by 5 U.S.C.
§ 2302 (a)(2)(A). Spivey v. Department of Justice , 2022 MSPB 24 , ¶ 5. The
appellant submission does not indicate whether he exhausted his remedy with
OSC, the nature of his alleged disclosure s or activities , or any facts from which to
determine that they were a contributing factor in his termination. PFR File, Tab 1
at 5. Further, these details are not contained in his earlier submissions. IAF,
Tabs 1, 6.
¶19 Nonetheless, we find that we must r emand this appeal . An appellant must
receive explicit information on what is required to establish an appealable
jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641 ,
643-44 (Fed. Cir. 1985). The administrative judge’s order to show cause did not
advise the appellant regarding how to establish jurisdiction over an IRA appeal o r
instruct him how to meet the jurisdictional requirements . IAF, Tab 8. Instead,
10
the order stated that “[i]f [the appellant] indicate[d] that [he] intend[ed] to
pursue” such a claim, the administrative judge would issue an additional notice of
the “speci fic proof required as to jurisdiction and the merits of the claim.” Id.
at 4. The agency’s submissions and the initial decision did not provide
information regarding how to establish IRA jurisdiction. IAF, Tab 7; ID. We
therefore remand the appeal for the appellant to receive such information and to
allow the parties to submit evidence and argument on jurisdiction . See Hudson v.
Department of Veterans Affairs , 104 M.S.P.R. 283 , ¶¶ 7 -8 (2006) (remanding an
IRA appeal when the administrative judge failed to provide an appellant with
specific notice of the exhaustion requirement or the issue of contributing factor
below , and the agency’s submissions and initial decision did not cure this
oversight ). If the administrative judge determinates that the Board has IRA
jurisdiction, the administrative judge should proceed to adjudicate the appellant’s
claims on the merits.
ORDER
¶20 For th e reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ZERMAN_LAWRENCE_R_CH_0752_22_0009_I_1_REMAND_ORDER_2058443.pdf | 2023-08-11 | null | CH-0752 | NP |
2,798 | https://www.mspb.gov/decisions/nonprecedential/SEARCY_HENRY_DC_1221_21_0555_W_1_REMAND_ORDER_2058469.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HENRY SEARCY, JR.,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DC-1221 -21-0555 -W-1
DATE: August 11, 2023
THIS ORDER IS NONPRECEDENTIAL1
Henry Searcy, Jr. , Bowie, Maryland, pro se.
Stephanie J. Mitchell , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal without prejudice to
refiling . For the reasons discussed below, we GRANT the appellant’s petition for
review and REMAND this matter to the Washington Regional Office for further
adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 On December 27, 2021, the administrative judge issued an initial decision
dismissing this matter without prejudice to refiling because of a significant
overlap of issues between this matter and another IRA appeal previously filed by
the appellant, i.e., Searcy v. Department of Agriculture , MSPB Docket No.
DC-1221 -20-0455 -W-1 (Searcy I). Initial Appeal File (IAF), Tab 15, Initial
Decision (ID) at 1-2.2 In so doing, the administrative judge e xplained that the
instant appeal would be automatically refiled “180 days from the date of [the
initial] decision, or within 30 days of the Board’s issuance of its decision in
Searcy I, whichever date occurs first.” ID at 2 -3. The appellant thereafter filed a
petition for review of the initial decision wherein he largely argues the merits of
his IRA appeal (s).3 Petition for Review File, Tab 1 .
¶3 To the extent the appellant argues that the administrative judge abused his
discretion in dismissing this matt er without prejudi ce, we disagree; indeed, there
is a significant overlap of issues between this matter and Searcy I. See Wheeler v.
Department of Defense , 113 M.S.P.R. 519 , ¶ 7 (2010) (concluding that the
administrative judge did not abuse his discretion in dismissing an appeal without
prejudice when the matter shared a common issue with another Board appeal); see
also Brigham v. Office of Personnel Management , 110 M.S.P.R. 108 , ¶ 8 (2008)
(stating that the Board may dismiss an appeal without prejudice to refiling in
order to avoid a lengthy or indefinite continuance ). To the extent he argues the
merits of his appeal, his arguments are misplaced ; indeed, the administr ative
2 Prior to issuing the initial decision, the administrative judge telephoned both parties,
left voicemails explaining that it appeared that he should dismiss the matter without
prejudice due to the overlap of issues, and requested that both parties return h is call.
IAF, Tab 14 at 1 . Neither party did so. Id. Approximately 3 weeks later, the
administrative judge issued an order explaining that he intended to dismiss the matter
without prejudice and providing the parties with 5 days to object. Id. at 1-2. Neither
party objected or otherwise responded to the order.
3 Because the appellant’s petition for review ostensibly challenged the administrative
judge’s dismissal of the instant matter without prejudice, the matter was not
automatically redocketed with the administrative judge 180 days following the issuance
of the December 27, 2021 initial decision. ID at 2 -3.
3
judge did not issue a finding regarding Board jurisdiction over the instant appeal .
See Schmittling v. Department of the Army , 219 F.3d 1 332, 1336 -37 (Fed. Cir.
2000) (explaining that the Board must first resolve the threshold issue of
jurisdiction before proceeding to the merits of an appeal).
¶4 Of note, the Board has issued its decision in Searcy I, i.e., one of the
conditions that the administrative judge indicated would trigger the refiling of
this matter . ID at 2 -3. However, a s stated , the administrative judge has yet to
issue a jurisdictional finding for the instant appeal . Accordingly, we find it
appropriate to remand this case for a jurisdictional determination and, if
appropriate, adjudication of the merits. See Wheeler , 113 M.S.P.R. 519 , ¶ 7
(remanding an appeal that h ad been dismissed without prejudice because it shared
a common issue with a prior appeal filed by the same appellant because the Board
had since issued a final decision in the prior appeal ). On remand, the regional
office may elect to join the appellant’s two IRA appeals. See 5 C.F.R. § 1201.36 .
ORDER
¶5 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SEARCY_HENRY_DC_1221_21_0555_W_1_REMAND_ORDER_2058469.pdf | 2023-08-11 | null | DC-1221 | NP |
2,799 | https://www.mspb.gov/decisions/nonprecedential/RODGERS_DAVID_DA_0752_21_0246_I_1_FINAL_ORDER_2058478.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID RODGERS,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-0752 -21-0246 -I-1
DATE: August 11, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer D. Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Michael Hosang , Esquire, and Susan E. Gibson , Esquire, Arlington,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal , finding that the agency failed to prove the
merits of its charges of absence without leave (AWOL) and failure to follow
instructions. On petition for review, the agency 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).
2
judge’s findings on the merits of the charges , arguing, among other things, that it
properly denied the appellant’s leave requests, and thus , the appellant was AWOL
on the specified dates , and that he faile d to follow proper ly issued instructions.
General ly, 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 applicat ion of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
ORDER
¶2 We ORDER the agency to cancel the removal act ion and retroactively
restore the appellant effective March 26, 2021, to his previous po sition as a
Criminal Investigat or, Deputy U.S. Marshall, GS -1811 -11, at Lafayette,
Louisiana . 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.
¶3 We also ORDER the agency to pay the appellant the correct amount of back
pay, i nterest 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
3
efforts to calculate the amou nt 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 t o pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶4 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).
¶5 No later than 30 days after the ag ency 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 th e 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).
¶6 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 resulti ng 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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
4
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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary o f available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fal l within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is th e appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . 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.
5
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information abo ut the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono represe ntation
for Merit Systems Protection Board appellants before the 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). I f you have a representative in this case,
6
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a cl aim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 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 p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny 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 wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 (s uch 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 under taken 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 annuit y 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 t hat exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805 (g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BACK P AY 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 c ourts .
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 nu mber.
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 amoun ts.
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 provid e 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. | RODGERS_DAVID_DA_0752_21_0246_I_1_FINAL_ORDER_2058478.pdf | 2023-08-11 | null | DA-0752 | NP |
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