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2,800 | https://www.mspb.gov/decisions/nonprecedential/HOOKER_CARLTON_EUGENE_AT_3330_21_0539_I_1_FINAL_ORDER_2058598.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARLTON EUGENE HOOKE R, JR .,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-3330 -21-0539 -I-1
DATE: August 11, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlton Eugene Hooker, Jr ., Clearwater, Florida, pro se.
Luis E. Ortiz -Cruz , Esquire, Orlando, 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) . Generally, we grant petitions such as this
one only in the following circ umstances: 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
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 argume nt is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to VACATE the administrative judge’s finding that the agency
requested authority to pass over the appellant for selection , we AFFIRM the
initial decision.
BACKGROUND
¶2 On June 28, 2021, the appellant filed a complaint with the Department of
Labor (DOL), claiming that the agency denied him his right to compete for a
Housekeeping Aid vacancy at the Bay Pines Veterans Administration Medical
Center (VAMC) . Initial Appeal File (IAF), Tab 1 at 16. After DOL closed its
investigation wi thout seeking corrective action, the appellant filed the instant
Board appeal and requested a hearing.2 Id. at 1-3, 16 -17. The appellant claims
that the agency denied him his right to compete on two bases: (1) To avoid
2 On August 9, 2021, the U.S. District Court for the Middle District of Florida imposed
a prefiling injunction against the appellant to protect the Secretary of Veterans Affairs
against the appellant ’s “incessant frivolous litigation,” “continued meritless filings,”
and “abusive conduct.” IAF, Tab 7 at 4 -7. Specifically, the court enjoined the
appellant “from filing any new action, complaint, or claim for relief against the
Secretary of Veterans Aff airs related to his employment in federal court, state court, or
any other forum ,” without the signature of an attorney in good standing. Id. at 6-7.
However, we agree with the administrative judge that the instant appeal may proceed
because the appellan t filed it before the injunction was issued. IAF, Tab 12 at 1.
3
having to select him, the agency placed his name on a fraud ulent certificate of
eligibles and made its selections from another certificate ; and (2) in 2016 the
agency issued the appellant an “illegal” No Engagement letter, which serves as a
de facto permanent bar to his right to compete for employment.3 IAF, Tab 1 at 5,
10, Tab 10 at 4 -5.
¶3 After issuing a close of the record order, the administrative judge issued an
initial decision denying the appellant’s request for corrective action without a
hearing. IAF, Tab 8, Tab 23, Initial Decision (ID). Specifically, th e
administrative judge found no evidence to suggest that the agency had, as alleged,
created a “fake” certificate. ID at 5. She also found that the agency was in the
process of seeking authority f rom the Office of Personnel Management (OPM) to
pass over the appellant for appointment , which she considered “irrefutable
evidence” tha t the agency had considered the appellant’s application. ID at 6.
The administrative judge further found that the appellant had failed to show that
his being barred from the ag ency facility where the position was located had
prevented him from competing for the position. Id.
¶4 The appellant has filed a petition for review of the initial decision, and the
agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3.
3 According to the December 9, 2016 No Engagement l etter and associated
documentation , the appellant was removed from his Police Officer position at the Bay
Pines VAMC in 2010, and had since t hat time, despite multiple warnings, engaged in a
continuing pattern of disruptive and harassing behavior at the Bay Pines VAMC. IAF,
Tab 11 at 4-7. The agency therefore banned the appellant from entering the Bay Pines
VAMC or any of its outpatient facilities. Id. at 7-8. The appellant asserts that the U.S.
District Court for the District of Columbia has declared this No Engagement letter null
and void. IAF, Tab 13 at 3 . He has filed multiple documents in support of his
assertion, but none of these documents include any court ruling on the matter. Id.
at 7-32. Instead, these documents consist of pleadings filed by the appellant and
written communications between the a ppellant and the Assistant U.S. Attorney
defending the case. Id. We find no evidence that the No Engagement letter was ever
invalidated by any tribunal, and we find no reason to reach the validity of the letter in
the context of the instant appeal.
4
ANA LYSIS
¶5 Under 5 U.S.C. § 3304 (f)(1), “[p]reference eligibles . . . may not be denied
the opportunity to compete for vacant positions for which the agency making the
announcement will accept applications from individuals outside its own
workforce under merit promotion procedures. ”4 After exhausting his
administrative rem edy with DOL, a preference eligible may appeal to the Board
regard ing an alleged violation of his right to compete . 5 U.S.C. § 3330a (a)(1) ,
(d); see Montgomery v. Department of Health and Human S ervices , 123 M.S.P.R.
216, ¶ 5 n.2 (2016) . On the merits, the appellant bears the burden of proving by
preponderant evidence that the agency violated his right to compete under
5 U.S.C. § 3304 (f)(1). See Abell v. Department of the Navy , 343 F.3d 1378 , 138 3
(Fed. Cir. 2003) ; 5 C.F.R. § 1201.57 (c)(4) . The Board may decide a VEOA
appeal on the merits, without a hearing, when there is no genuine dispute of
material fact and one party must prevail as a matter of law. Haasz v. Department
of Veterans Affairs , 108 M.S.P.R. 349 , ¶ 9 (2008).
¶6 As explained above, the appellant argues that the agency violated his right
to compete in two ways, i.e. , by placing his name on a “fraudulent” certificate
and making its selections from another certificate, and by permane ntly impairing
his right to compete through its 2016 No Engagement letter. Supra ¶ 2.
Regarding the first of these arguments, we find no evidentiary support for the
appellant’s speculative and highly improbable assertion that the May 25, 2021
certificate of eligibles was a sham that the agency devised for the purpose of
excluding him from consideration for the position. IAF, Tab 5 at 14 -15. A
genuine dispute of fact requires an evidentiary conflict created on the record ,
whether by documentary evidence or the sworn statement of a knowledgeable
declarant . Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd. ,
4 This statutory right to compete extends to open competitive examinations such as the
one involved in the instant appeal. See Dean v. Office of Personnel Management ,
115 M.S.P.R. 157 , ¶ 23 n.11 (2010).
5
731 F.2d 831 , 835 -36 (Fed. Cir. 1984). The appellant filed several documents
that he obtained pursuant to a Freedom of Information Act (FOIA) request, which
he argues show that the certificate of eligibles was fraudulent. IAF, Tab 14.
However, these documents pertain to a d ifferent vacancy announcement —one for
a Police Officer position for which the appellant applied in 2007 . Id. at 7-11. We
do not see how these documents are relevant to the instant appeal , much less how
they could give rise to a genuine dispute of materia l fact.
¶7 The appellant also states that the agency extended him a tentative job offer
but later retracted it. IAF, Tab 17 at 5. The agency has submitted evidence
confirming the appellant ’s allegation, i.e. , an email explaining to the appellant
that, after the agency reviewed its preemployment screening results, it had
determined that the tentative job offer was extended in error. IAF, Tab 19 at 4.
However, this evidence tends to show that the agency did consider the appellant ’s
application, e ven though it ultimately decided not to select him. Section
3304(f)(1) only gives the appellant the right to compete for the vacant position at
issue; it does not guarantee that his application w ill be successful. Abell ,
343 F.3d at 1383.
¶8 The appellant further argues, with supporting evidence, that numerous
individuals applied for the Housekeeping Aid position under the vacancy
announcement at issue, the agency created multiple certificates of eligibles based
on this single announcement , and the agency selected multiple individuals off of
other certificates.5 IAF, Tab 17 at 5; PFR File, Tab 1 at 13 -24. All this appears
5 It appears that at least some of this evidence, filed for the first time on petition for
review, may not be “new” within the meaning of 5 U.S.C. § 1201.115 (d). However, we
do not reach that issue because we find that none of the evidence is material.
The appellant disputes the administrative judge’s ruling that denied his motion to stay
proceedings pending resolution of the FOIA request that uncovered these documents.
PFR File, Tab 1 at 8; IAF, Tabs 15 -16. For the reasons explained by the administrat ive
judge, we find that she did not abuse her discretion in denying the appellant’s motion.
IAF, Tab 16; see Funk v. Small Business Administration , 5 M.S.P.R. 221 , 222 -23 (1981)
(finding unavailing the appellant’s assertion that his case should be reopened because
6
to be true. However, none of it suggests that the May 25, 2021 certificate was not
a bona fide certificate or that the appellant was not actually considered for the
Housekeeping Aid position. Nor are the agency ’s actions in this regard in any
way susp ect. The “Open Continuous Announcement” under which the appellant
applied clearly explained that the agency would accept applicatio ns on a rolling
basis and create multiple referral lists to fill Housekeeping Aid positions as they
came open . IAF, Tab 5 at 30. Likewise, although the May 25, 2021 certificate
was created prior to the listed closing date of the announcement, contrary to the
appellant ’s arguments, this does not suggest that the certificate was fraudulent .
IAF, Tab 18 at 5 -6. T he announcement itself specifically stated that some referral
lists would be created before the announcement closed . IAF, Tab 5 at 30.
¶9 Regarding the appellant’s second argument concerning the No Engagement
letter, it appears likely that the appellant would have been selected or at least
interviewed for the position were it not for this standing order barring him from
the Bay Pines VAMC. However, w e find that these circumstances do not
constitute a violation of the appellant’s right to compete. A preference eligible’s
right to compete does not preclude an agency from eliminating him from further
consideration for a position based on his suitability or qualifications, and nothing
requires that the preference eligible be considered at every stage of the selection
process, up to that process ’s final stage . Miller v. Federal Deposit Insurance
Corporation , 121 M.S.P.R. 88, ¶ 11 (2014). For these reasons, we agree with the
administrative judge that there is no genuine dispute of materia l fact , and the
agency is entitled to judgment as a matter of law. Although the agency did not
he had not received all the documents that he had requested from the agency via FOIA
when the appellant had failed to avail himself of the discovery process). Furthermore,
for the reasons explained in thi s Final Order, we find that even if the administrative
judge had abused her discretion, the appellant’s substantive rights were not prejudiced
because the documents that he obtained through his FOIA request were immaterial to
the outcome of the appeal. See Karapinka v. Department of Energy , 6 M.S.P.R. 124 ,
127 (1981).
7
ultimately select the appellant for the Housekeeping Aid position, it afforded him
his right to compete for it.
¶10 Although we affirm the initial decision on the se grounds , we do not agree
with all of the administrative judge’s findings and rulings. First, we observe that
the close of the record order did not clearly explain that the appellant would not
be afforded his requested hearing unless he raised a genuine dispute of material
fact. IAF, Tab 8. However, we find that any deficiency in the ord er did not
prejudice the appellant’s substantive rights because he did not raise a genuine
dispute of material fact even on petition for review. Cf. Jarrard v. Department of
Justice , 113 M.S.P.R. 502 , ¶ 11 (2010) (remanding the appeal for further
adjudication where the administrative judge denied corrective action on the
written record without issuing a close of the record order and there remained
genuine issues of material fact ).
¶11 Second, the administrative judge’s finding that the agency was in the
process of seeking pass over authority from OPM was based on the agency
representative’s statements at the close of the record confere nce. ID at 5 -6; IAF,
Tab 12 at 2. Although the administrative judge found that this was “irrefutable
evidence ” that the agency had considered the appellant’s application, ID at 6, the
statements of a party’s representative during a status conference do not constitute
evidence at all, Hartsock -Shaw v. Office of Personnel Management , 107 M.S.P.R.
17, ¶ 10 (2007). We therefore modify the initial decision to vacate this finding.
Neverthele ss, it is the appellant’s burden to provide evidence sho wing that the
agency violated his right to compete; it is not the agency’s burden to disprove an
appellant’s unsupported assertions of such a violation. 5 C.F.R. § 1201.57 (c)(4).
The ap pellant in this case has not proven that the agency violated his right to
compete with respect to the vacancy announcement at issue , and there is no
genuine dispute of material fact that would require a hearing on the matter .
8
NOTICE OF APPEAL RIG HTS6
The i nitial 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 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 yo ur particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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
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 in volves a claim of discrimination based on
10
race, color, religion, sex, national origin, or a disabling condition, 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 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
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel 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.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional infor mation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statut ory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allow s appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information f or the courts of appeals can be 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 | HOOKER_CARLTON_EUGENE_AT_3330_21_0539_I_1_FINAL_ORDER_2058598.pdf | 2023-08-11 | null | AT-3330 | NP |
2,801 | https://www.mspb.gov/decisions/nonprecedential/AKI_MARTIN_LISA_SF_0752_21_0142_I_1_FINAL_ORDER_2058600.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA AKI MARTIN,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-0752 -21-0142 -I-1
DATE: August 11, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daphne E. Barbee , Esquire, Honolulu, Hawaii, for the appellant.
Loraine Kovach -Padden , Esquire, and Ryan L. Wischkaemper , Esquire
Washington , D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal for medical inability to perform. For the reasons
discussed below, we GRANT the appellant’s petition for review , REVERSE the
initial decision as it relates to the merits of the charge, and VACATE the finding
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
that the agency met th e clear and convincing standard in the whistleblower
reprisal analysis.
BACKGROUND
¶2 The appellant was employed as a GS -9 International Transportation
Specialist (ITS) wit h the Defense Prisoner of War/Missing in Action Accounting
Agency (DPAA) at Joint Base Pearl Harbor -Hickam in Honolulu, Hawaii. Initial
Appeal File (IAF), Tab 8 at 4. DPAA is tasked with identifying and repatriating
the remains of service members who die d in past co nflicts. Hearing Transcript
(HT) (testimony of the appellant’s supervisor). As an ITS, the appellant was
responsible for, among other things, assisting DPAA employees and other
officials with travel needs, such as performing passport agent du ties, including
collecting and processing documents containing personally identifiable
information (PII) for passport applications. HT (testimony of the appellant,
testimony of the appellant’s supervisor); IAF, Tab 8 at 13. DPAA’s travel
department, i.e. , the appellant’s department, was located in building 4077 on the
base. HT (testimony of the appellant’s supervisor). Building 4077 was the only
building at the agency’s Hawaii facility that had been certified by the Special
Issuance Agency (SIA), a comp onent of the Department of State, as an official
passport site, certifying that the building is qualified to maintain the integrity of
passport materials. Id.
¶3 After a verbal incident with a co -worker,2 the appellant submitted a request
for reasonable acco mmodation, attaching a doctor’s note stating that she should
no longer have any contact with her co -worker because she feared for her safety
and it was causing her severe anxiety. IAF, Tab 14 at 25 -27. As an
2 The incident did not include any physical violence against the appellant, was reported
to and reviewed by the appellant’s supervisor, and does not appear to have resulted in
discipline for either the appellant or the co -worker. HT (testimony of the appellant’s
supervisor, testimony of the appellant) .
3
accommodation, the appellant’s doctor recommen ded that she either be
transferred to building 453 or to another work section, or that she be allowed to
telework on the days that her co -worker was in building 4077, which was
approximately 9 days per pay period. Id. In February 2017, the agency granted
the appellant’s request to physically relocate to building 45 on a provisional
basis, initially suspending her passport agent duties, until it formally granted her
request for accommodation in November 2 017, when it modified the passport
duties to account for her relocation to building 45. IAF, Tab 14 at 19 -20, Tab 69
at 28 -30.
¶4 However, in March 2019, the agency alerted the appellant that it was
reviewing her accommodation because it had “become clear that [she was ] unable
to perform the essent ial funct ions of [her] position ” due to various incidents of
misconduct, as well as numerous unscheduled absences. IAF, Tab 14 at 21 -22.
In response, the appellant submitted an updated medical note reiterating her need
to avoid any contact with the co -worker, and the appellant’s doctor conducted a
site visit to buildings 45 and 4077, confirming that the appellant could not
perform her duties in building 4077 as long as the co -worker was still employed.
Id. at 4 -5; IAF, Tab 8 at 24 -26.
¶5 On April 13, 2020, the age ncy finalized its reasonable accommodation
review, finding that the appellant’s location in building 45 created an undue
hardship because it no longer trusted her to perform the essential functions of her
position without direct, on -site supervision . IAF, Tab 63 at 27 -29. Specifically,
the agency based its fi nding on several insta nces of misconduct by the appellant ,
i.e., bringing children to work, repeatedly failing to follow instructions, and
insubordination, as well as the fact that she had been placed on leave restriction
because she had taken 522 hours of unscheduled leave . Id. at 28. Thus, it
3 Building 45 was approximately four or five m iles away from building 4077. HT
(testimony of the appellant’s supervisor).
4
determined that there was no reasonable accommodation that would allow her to
perform the essential functions of her job because her medical restrictions
prev ented her from working in building 4077 where she would h ave direct,
on-site supervision . Id. at 27-29. Subsequently, the agency removed the
appellant for medical inability to perform effective May 21, 2020, citing to the
same reasons it relied on in revoking the appellant’s accommodation . IAF, Tab 8
at 4-10.
¶6 The appellant filed a formal complaint of discrimination alleging that her
removal was based on disability discrimination and in retaliation for her equal
employment opportunity (EEO) activity. I AF, Tab 7 at 106. Once the agency
issued its final agency decision denying the appellant’s discrimination claims, she
filed a timely Board appeal. Id. at 105-23; IAF, Tab 1. After holding a hearing,
the administrative judge issued an initial decision affirming the appellant’s
removal, finding that the agency proved its charge of medical inability to
perform, and denying the appellant’s affirmative def enses of disability
discrimination, EEO retaliation, whistleblower reprisal, due process violations ,
and harmful procedural error. IAF, Tab 104, Initial Decision (ID).
¶7 The appellant has filed a petition for review disputing, in part, the
administrative judge’s findings regarding the merits of the charge, arguing that
she could perform the essential functions of her position, and that relocation to
building 45 was an effective accommodation, as she could perform her duties,
including “the bulk of her pass port duties.” Petition for Review (PFR) File,
Tab 1 at 7, 13 -14, 16. She also renews her affirmative defenses, including that
her removal was in retaliation for her “whistleblower complaint.” Id. at 18 -32.
The agency has filed a response in opposition to the appellant’s petition for
review. PFR File, Tab 3. The appellant then filed a reply to the agency’s
response, reiterating the arguments made in her petition for review. PFR File,
Tab 4.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The agency failed to prove its charge of medical inability to perform because it
failed to establish that on -site supervision was a core duty of the appellant’s
position.
¶8 When, as here, the appellant does not occupy a position with medical
standards or physical requirements or subje ct to medical evaluation programs, in
order to establish a charge of medical inability to perform, the agency must prove
a nexus between the employee’s medical condition and observed deficiencies in
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). In other words, the
agency must establish that the employee’s medical condition prevents her from
being able to safely and efficiently perform the core duties of her position. Id.
¶9 In the decision letter , the agency explained that it removed the appellant
because it “determined that a reasonable accommodation does not exist that
would enable [her] to safely and efficiently perform the core duties of [her]
position without direct, on -site supervision.” IAF, Ta b 8 at 9. The administrative
judge, following the lead of the agency, sustained the medical inability to perform
charge because he found that the agency had proven that the appellant required
on-site supervision due to her repeated misconduct and unschedu led absences
while working from building 45 . ID at 20 -25. Thus, per the agency’s c rafting of
the removal , the issue before us is whe ther the agency has proven that on-site
supervision is a core duty of the appellant’s position which she is unable to
satisfy due to her medical condition .
¶10 We find that it did not. There is no evidence in the record, nor has the
agency even argued, that the appellant’s position required on -site supervision as
part of her core duties. There is no reference in the appellant’s position
description or performance plan to on-site supervi sion. IAF, Tab 8 at 11 -17,
Tab 14 at 50 -77. In fact , the agency made it abundantly clear both in its
documents and its testimony that the appellant was removed because it had lost
6
faith in her a bility to perform her core duties in building 45 , away from on -site
supervision, due to her repeated misconduct and unscheduled absences . IAF,
Tab 8 at 9, 21; HT (testimony of the appellant’s supervisor, testimony of the
deciding official, agency’s closin g arguments). However, none of this evidence
supports a finding that the need for on -site supervision was a core duty of the ITS
position . In other words, the need for on -site supervision was a product of the
appellant’s purported misconduct, and not a requirement of the position itself .
Accordingly, contrary to the administrative judge’s findings, we do not find that
the agency proved the medical inability to perform charge because it failed to
prove that the appellant could not perform an essential fu nction of her position
due to her medical condition . ID at 26.
¶11 We are aware that there is evidence in the record that an essential function
of the appellant’s job, i.e. , passport agent duties , required her to be located in
building 4077 .4 HT (testimo ny of the appellant’s supervisor,); IAF, Tab 8 at 13;
Tab 14 at 54, 64, 73 , Tab 101 at 57 -64. Indeed, even the appellant states that she
could perform the “bulk” of her passport agent duties from building 45,
essentially conceding that she could not perfo rm all of them. PFR File, Tab 1
at 13-14. However, the agency did not base her removal for medical inability to
perform on her inability to perform the full range of her passport agent duties.
IAF, Tab 8 at 5 -10; HT (agency’s closing argument) . Instead, it argued that she
was medically unable to perform because she required on -site supervision, which ,
as noted, is not a core duty of her position, but a requirement unique to the
appellant due to her repeated misconduct .5 IAF, Tab 8 at 9 ; HT (ag ency’s closing
argument) .
4 As noted, building 4077 was the only building at the agency’s Hawaii facility that had
been certified by t he SIA as an official passport s ite, and thus certain essential
functio ns of the appellant’s position could only be performed in that building.
5 There is no suggestion in the record that the appellant’s purported misconduct was
caused by her medical condition. Thus, while misconduct that is the result of a medical
7
¶12 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) . Accordingly , we are bound by the basis chosen by the
agency , and thus , because the agency failed to prove its charge as written, we
must reverse the agency action . We make no finding as to whether the agency
could have successfully removed the appellant based on her medical inability to
perform the essential functions of her passport agent responsibilities or based on
her purported misconduct while working in building 45. 5 U.S.C. § 1204 (h)
(providing that the Board is prohibited from issuing advisory opinions).
The appellant failed to establish that the administrative judge erred in denying her
affirmative defenses of disability discrimination and EEO retaliation.
¶13 On review, the appellant disputes the administrative judge ’s findings
denying her affirmative defenses of disability discrimination . PFR File, Tab 1
at 22-26. The administrative judge thoroughly considered the appellant’s
arguments and his findings are detailed, thorough , and based in the record . ID
at 28-38. A ccordingly , we discern no reason to disturb them. Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98 , 106 (1997) (explaining that the B oard will not
disturb an administrative judge’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions on issues of
credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).6
conditio n can support an inability to p erform charge, see Powitz v. Office of Personnel
Management , 82 M.S.P.R. 56 , ¶¶ 7-8 (1999) , those c ircumstances are not present here.
6 The appellant also disputed the administrative judge’s findings denying her claims of
due process violations and harmful procedural error. PFR File, Tab 1 at 18-22.
Because her argument s were thoroughly analyzed and considered by the administrative
8
¶14 The appellant also argues that the administrative judge erred in his analysis
of her claim of retaliation for complaints of disability discrimination and requests
for reasonable accommodation. PFR File, Tab 1 at 26 -30; see Pridgen v. Office
of Management and Budget , 2022 MSPB 31 , ¶ 44 . To prove retaliation for
complaints of disability discrimination and requests for reasonable
accommodation , the appellant must show that her prior EEO activity was a
“but-for” cause of her removal, a more stringent standard than the motivating
factor standard applied by the administrative judge. Pridgen , 2022 MSPB 31 ,
¶¶ 44-46. However, because the appellant did not even satisfy the lesser
motivating factor standard, she cannot satisfy the more stringent “ but-for”
standard, and thus, she was not prejudiced by the administrative judge’s use of
the motivating factor standard.7 See 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).
judge, and he came to well -reasoned conclusions, we discern no basis for disturbing
them. 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 conc lusions on
issues of credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same ).
7 The administrative judge applied the framework set forth in McDonnell Douglas
Corporation v. Green , 411 U.S. 792 , 802 -04 (1973) to the appellant’s claim of
disability discrimination based on her disabled status. ID at 34 -38. In Pridgen ,
2022 MSPB 31 , ¶¶ 40, 42 , the Board explained that for status -based disability
discrimination claims, an appellant is entitled to some relief, i.e. , injunctive relief, if
she satisfies the motivating factor standard, but in order to obtain full relief, she must
show that disability discrimination was a but-for cause of the personnel action .
Because we agree with the administrative judge that the appe llant is not a qualified
individual with a disability, it was not prejudicial to the appellant to not evaluate her
claim under a motivating factor standard of proof . 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).
9
Because the appellant failed to establish that she made a protected disclosure
under 5 U.S.C. § 2302 (b)(8), the subsequent finding that the agency met the clear
and convincing standard must be vacated.
¶15 In the initial decision, the administrative judge found that the appellant did
not establish that she made a protected disclosure when she objected to a request
from a sergeant major (SM) to change travel authorizations for a group of
individuals to accomm odate off -base lodging. ID at 42-45. Specifically, he
found that the appellant did not have a reasonable basis for believing that her
disclosures evidenced a violation of law, rule , or regulation, or constituted a gross
waste of funds, noting that the ap pellant did not identify any law, rule, or
regulation the SM allegedly violated, and any difference in costs was nothing
more than a debatable expenditure. ID at 45. Nevertheless, the administrative
judge continued in the whistleblower reprisal analysis, finding that if the
disclosure were protected, the appellant would meet the contributing factor
standard, but the agency would prove by clear and convincing evidence that it
would have removed her absent any whistleblower activity. ID at 45 -48.
¶16 On revi ew, the appellant disputes the administrative judge’s findings,
asserting that “[i]t was clear [that she] felt there was fraud and waste going on
and if she had to adhere to travel rules, so did her s upervisor.” PFR File, Tab 1
at 31. The appellant offer s nothing more than conclusory assertions that she
disclosed “waste and fraud,” but she fails to explain with any specificity how her
disclosure evidenced the type of misconduct set forth in section 2302(b)(8)(A).8
8 To the extent that the appellant asserts on review that the agency retaliated against her
in violation of 5 U.S.C. § 2302 (b)(9)(C) because she filed an Inspector General (IG)
complaint, the appellant clar ified during the prehearing conference that her
whistleblower reprisal claim was “based on the whistleblowing disclosure itself
involving a disclosure of waste and fraud . . . rather than her contact with the IG.” IAF,
Tab 100 at 4. In the prehearing ord er, the administrative judge included a summary of
matters to be decided, including “[w]histleblower retaliation based on a disclosure of
fraud and waste to Sergeant Major (SM) . . . about the SM’s improper decision to
authorize travel expenditures. . . .” Id. at 4. The administrative judge provided the
parties with an opportunity to file objections or exceptions to the prehearing order. Id.
10
Id. at 30 -32. Accordingly, as the admin istrative judge correctly applied the law
to the facts of this case to find that the appellant had not established that she
made a protected disclosure under 5 U.S.C. § 2302 (b)(8)(A), we discern no basis
for disturbing his finding . Crosby , 74 M.S.P.R. 98 , 106 ; Broughton , 33 M.S.P.R.
357, 359.
¶17 However, once the administrative judge made this finding, he should not
have continued in the whistleblower protection analytical framework, because the
Board may not proceed to the clear and convincing evidence test unless it has
first determined that the appellant established a prima facie cas e of whistleblower
reprisal. 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) . Accordingly, because the
appellant did not establish a prima facie case of whistleblower reprisal, we vacate
the administrative judge’s findings that the agency would have met the clear and
convincing evidence standard.
ORDER
¶18 We ORDER the agency to cancel the removal action and restore the
appellant to her GS -9 International Travel Specialist position effecti ve May 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 thi s 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 Office of Personnel
at 18. T he appellant, who was represented both below and on review, did not file any
objection, nor does she expressly argue on review that the administrative judge
mischaracterized the whistleblower reprisal claim. Id.; PFR File, Tab 1 at 30 -32.
Accordingly, the appellant is precl uded from raising this argument on review. See
Gallegos v. Department of the Air Force , 121 M.S.P.R. 349 , ¶ 16 (2014) (finding that
the appellant’s failure to object to the administrative judge’s rulings which precluded
her from raising her affirmative defenses after she waived them prohibited her from
raising the defenses on review).
11
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.
¶20 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).
¶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
with the office that issued the initial d ecision 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 inc lude 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 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.
12
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.), sect ions 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 HTS9
The initial decision, as suppleme nted 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. § 770 3(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement o f how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable 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 indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order mus t file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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.
If you are interested in securing pro bono representation 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
14
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the 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 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:
15
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial rev iew either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
10 The original statutory provision that provided for j udicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions fo r judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2 017. 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
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.
Contact information for the courts of appeals can be 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/DFASP ayroll/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 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 recor d of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805 (g).
NATIONAL FINANCE 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 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. | AKI_MARTIN_LISA_SF_0752_21_0142_I_1_FINAL_ORDER_2058600.pdf | 2023-08-11 | null | SF-0752 | NP |
2,802 | https://www.mspb.gov/decisions/nonprecedential/PEARCE_MARY_DE_0714_19_0443_I_1_FINAL_ORDER_2058703.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARY PEARCE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0714 -19-0443 -I-1
DATE: August 11, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Muther, Jr., Esquire, Denver, Colorado, for the appellant.
Chau Phan , Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a peti tion for review of the initial decision, which
reversed the appellant’s removal taken under 38 U.S.C. § 714. Generally, we
grant petitions such as this one only in the following circumstances: th e initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is on e that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish the m in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings duri ng either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is availabl e
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 following facts are undisputed. The appellant was a GS -14 Supervisory
Social Worker, employed as the Social Work Service Chief for the agency’s
Eastern Colorado Healthcare System. Initial Appeal File (IAF), Tab 6 at 13, 81.
Central to this appeal is the agency’s Contract Nursing Home program, a system
through which the agency contracts with privately -owned nursing homes to
provide care for eligible veterans. Hearing Recording, Day 1 (HR 1) at 2:05
(testimony of the Acting Contract Nursing Home Supervisor). In order to pay
contract nursing homes for services rendered, the agency receives invoices from
the nursing homes, reconciles the invoices, and submits them to the Department
of the Treasury for payment. HR 1 at 3:50 (testimony of the Acting Contract
Nursing Home Supervisor); Hearing Recording, Day 2 (HR 2), Track 1 at 8:00
(testimony of the appellan t).
¶3 On November 1, 2018, the Social Work Service became responsible for
reconciliations, a responsibility which was previously held by the agency’s
Network Authorization Office. IAF, Tab 32 at 45. While the Network
3
Authorization Office held the reconci liation function, the average total processing
time for an invoice was approximately 100 days. IAF, Tab 32 at 45. Soon after
the Social Work Service assumed this function, the average processing time was
reduced to about 80 days. Id.
¶4 On April 17, 2019 , however, a U.S. Senator made an informal inquiry on
behalf of one contract nursing home into payment delays that were jeopardizing
the institution’s ability to make payroll. IAF, Tab 6 at 149. This was followed
on May 22, 2019, with a formal inquiry fr om another U.S. Senator to the
Secretary of Veterans Affairs concerning contract nursing home payment delays
in the Eastern Colorado Healthcare System in general. Id. at 84. Meanwhile, on
April 19, 2019, the agency launched an investigation into the matt er, which
concluded on May 3, 2019, with findings on the scope, nature, and causes of the
problem, as well as recommendations to improve payment processing. Id.
at 85-87. In the wake of these events, the appellant took steps to reduce
reconciliation proc essing times to an average of 23 days by June 5, 2019, and an
average of less than 10 days by June 26. IAF, Tab 32 at 41 -45.
¶5 Nevertheless, on August 30, 2019, the agency proposed the appellant’s
removal under 38 U.S.C. § 714, based on one charge of “Failure to Ensure Proper
Oversight.” IAF, Tab 6 at 81 -83. The agency specified as follows:
From approximately November 6, 2018 -May 29, 2019, you failed to
provide proper supervision and oversight for your employees in
processing of room and board invoices to Nursing Homes affiliated
with the Contract Nursing Home Program. This failure resulted in
delayed payment of approximately 613 invoices for a total of
approximately $5,050,305.37, violating 5 CFR 1315, the Prompt
Payment Act.[2]
2 The legal citation provided by the agency is not actually, as suggested by the language
of the proposal notice, to the Prompt Payment Act, Pub. L. 9 7-452, § 1(18)(A), 96 Stat.
2467 (1983) (codified as amended at 31 U.S.C. chapt er 39). Rather it is to the
implementing regulations, issued by the Office of Management and Budget and found at
5 C.F.R. part 1315. Those regulations provide in relevant part that an agency must
4
Id. at 81. After the appellant responded, the agency issued a decision removing
her effective September 13, 2019. Id. at 13 -24.
¶6 The appellant filed a Board appeal, challenging the merits of the removal
action and raising affirmative defenses of sex discrimination and retaliation for
equal employment opportunity activity. IAF, Tab 1 at 4, Tab 36 at 2. After a
hearing, the administrative judge issued an initial decision reversing the
appellant’s removal on the merits . IAF, Tab 53, Initial Decision (ID). He
construed the agency’s charge as one of negligence in the performance of duties
and found that the agency failed to prove the charge by substantial evidence . ID
at 8-14. Having reversed the removal on th at basis , the administrative judge
declined to reach the appellant’s affirmative defenses. ID at 14.
¶7 The agency has filed a petition for review, contesting several of the
administrative judge’s findings of fact. Petition for Review (PFR) File, Tab 1.
The appell ant has filed a response. PFR File, Tab 3.
ANALYSIS
¶8 In an appeal of an adverse action taken under 38 U.S.C. § 714 (a), the
agency bears the burden of proving its charg es by substantial evidence.
38 U.S.C. § 714 (d)(2)(a). If the agency meets this standard, the Board may not
mitigate the agency’s chosen penalty, but it is nevertheless required to review the
penalty as part of the agency’s ov erall decision. 38 U.S.C. § 714 (d)(2)(B),
(3)(C); Sayers v. Department of Veterans Affairs , 954 F.3d 1370 , 1375 -79 (Fed.
Cir. 2020). Further, the agency’s decision may not be sustained if the appellant
shows that the decision was based on a prohibited personnel practice described in
5 U.S.C. § 2302 (b). 5 U.S .C. § 7701(c)(2) (B).
generally make contracted payments within 30 days of recei ving a proper invoice.
5 C.F.R. § 1315.4 (f)-(g).
5
¶9 It appears that the parties agree with the administrative judge’s
interpretation of the charge as concerning negligent performance of duties. IAF,
Tab 29 at 1 -2; ID at 8. To prove its charge, the agency must show by substantial
evidence that the appellan t failed to exercise the degree of care that a person of
ordinary prudence with the same experience would exercise in the same situation.
Robinson v. Department of Veterans Affairs , 923 F.3d 1004 , 1011 ( Fed. Cir.
2019); Mendez v. Dep artment of the Treasury , 88 M.S.P.R. 596 , ¶ 26 (2001) . The
administrative judge found that the agency failed to meet this standard because
the appellant, through no fault of her own, was unaware of the 30 -day payment
deadline until March 2019, at which point she immediately took action, bringing
the reconcilia tion process into compliance by May 2019 . ID at 6, 8 -14.
¶10 Besides the undisputed fact that the agency failed to inform the appellant of
a 30 -day payment deadline, the administrative judge also found that the appellant
was not negligent in failing to disco ver the deadline on her own. He found that
the appellant’s duties were primarily clinical and did not involve contract review.
ID at 13. He also found that the contracts were long and complicated, so even if
Social Work Service staff had reviewed them, the contracts’ single reference to
the Prompt Payment Act may not have been sufficient to alert them to the
deadline. ID at 1 -13 & n.26. The administrative judge further found that even if
the appellant had known about the 30 -day deadline, compliance was outside her
control because the third step of the payment process was still held by the
Network Authorization Office and could itself take upwards of 30 days. ID at 14.
¶11 The agency disputes these findings on review. First, it argues that, as
evidenced by the Chief of Social Work functional statement, the appellant’s
duties were not primarily clinical. Rather, the position is mostly administrative in
nature. PFR File, Tab 1 at 7; IAF, Tab 19 at 4 -11. However, far from providing
a sufficiently sound basi s to overturn the demeanor -based credibility
determination underlying the administrative judge’s finding, our review of the
functional statement leaves us with an even firmer conviction that the finding was
6
correct. ID at 2 & n.3; see Haebe v. Department of Justice , 288 F.3d 1288 , 1301
(Fed. Cir. 2002). Although the appellant’s primary job duties might technically
be characterized as administrative, they pertain to administe ring the Social Work
Service’s clinical practice. IAF, Tab 19 at 4 -11. There is nothing in the
functional statement to suggest that the Social Work Service Chief spends a
significant amount of time administering contracts or that contract work is part of
the re quisite knowledge skills and abilities for the position.3 IAF, Tab 19 at 9 -10;
Veterans ’ Administration Handbook 5005, Part II, Appendix G39(3),
(4)(o ) (Sep t. 10, 2019 ), https://www.va.gov/vapubs/viewPublication.asp?
Pub_ID=1061&FType=2 .
¶12 Second, the agency disputes the administrative judge’s finding that the
Social Work Service’s preexisting function of reconciling pharmacy invoices was
not comparable to its new fun ction of reconciling contract nursing home invoices.
PFR File, Tab 1 at 8; ID at 13 n.25. However, we find that this issue is
immaterial to the outcome of the appeal, which essentially hinges on whether the
appellant knew or should have known that there was a 30 -day deadline for
making the contract nursing home payments. The agency argues that the
appellant should have already been familiar with the requirements of the Prompt
Payment Act because they appl y to the pharmacy invoices that the Social Work
Service was already reconciling . PFR File, Tab 1 at 8 -9. However, particularly
absent evidence that the agency informed the appellant about the application of
this law to this particular program , we see no reason to assume that the appellant
should necessa rily be familiar with every law affecting every program under her
management.
3 The functional statement provides that the incumbent reviews contracts to ensure that
resources are being utilized efficiently. IAF, Ta b 19 at 47. However, this appears to us
to be something different from the reconciliation of invoices, and besides, it is just one
among scores of duties described in this lengthy functional statement.
7
¶13 Third, the agency argues that compliance with the Prompt Payment Act was
not outside the appellant’s control. PFR File, Tab 1 at 10. The agency’s
argument is well taken to the extent that a reconciliation time of more than
30 days would prevent timely payment no matter how quickly the Network
Authorization Office might complete its part of the operation. However, the
reverse is also true; even a prompt reconciliati on by the Social Work Service
could not prevent an untimely payment caused by delays at the Network
Authorization Office. Therefore, although the Social Work Service has a part to
play in complying with the Prompt Payment Act, the matter is not entirely w ithin
its control. In any event, we do not perceive this matter as material to the key
issue in this appeal, which is whether the appellant was negligent in failing to
learn of the 30 -day deadline under the Prompt Payment Act.
¶14 Fourth, conceding that it d id not specifically inform the appellant of the
30-day deadline, the agency argues that she was nevertheless negligent in failing
to review the nursing home contracts and discover the deadline for herself.4 PFR
File, Tab 1 at 9. The administrative judge thoroughly addressed this issue by
reference to a representative contract, and we agree with his analysis. ID at 13-14
& n.26. Our only disagreement is with his characterization of the contract as
“somewhat difficult to decipher,” which we believe to be an understatement under
the circumstances . ID at 14; IAF, Tab 15 at 84 -118. In any event, we seriously
doubt that the agency actually expected the appellant to discover the 30 -day
deadline through contract review because such an expectation would have be en
completely unreasonable. The agency would have us believe that the appellant
was supposed to have found this reference to the Prompt Payment Act, buried
4 The contracts do not set forth a 30 -day payment d eadline on their face. They provide
only that “[t]he Government will make payment in accordance with the Prompt Payment
Act ( 31 U.S.C. 3903 ) and prompt payment regulations at 5 CFR part 1315.”
8
amidst hundreds of other legal citations in the boilerplate of a 43 -page contract,5
read the cited sections of the code, and deduced that a 30 -day payment deadline
applied in her situation.6 And this despite the fact that she inherited the
reconciliation program from an office that was routinely taking much longer to
reconcile invoices, without any ind ication that this was a problem, and despite the
fact that the Social Work Service was performing reconciliation duties rather than
general contract administration. The agency points out that the appellant’s
predecessor as Social Work Service Chief learne d of the Prompt Payment Act by
reading work -related materials on her own. PFR File, Tab 1 at 9. However, we
cannot find that the appellant was negligent in failing to happen upon the Prompt
Payment Act previously during the course of her duties.
¶15 The agen cy argues that “[t] he Administrative Judge erred when he
concluded [the Network Authorization Office] or someone in the Appellant’s
chain -of-command needed to set clear expectations regarding invoice
reconciliation timing.” Id. We disagree. Setting clea r expectations for
5 By our count, the contract contains no fewer than 240 citations to various statutes,
regulations, and executive orders. IAF, Tab 15 at 84 -118. The agency has not
explained whether it expected the appellant to familiarize herself with each and every
one of these statutes, regulations, and executive orders, or only the most important
ones, and if only the most important ones, how she was supposed to tell them apart.
6 To say that the Prompt Payment Act requires the Government to make payments
within 30 days of the date the invoice is received is an oversimplification. The statute
and regulations provide four different ways of determining a payment due date, of
which t he 30 -day provision applies only when none of the others do. 31 U.S.C.
§ 3903 (a)(1); 5 C.F.R. § 1315.4 (g). The appellant, who is neither an attorney nor a
contract administrator, was apparently expected to figure out on her own which of these
deadlines applied to the invoices at issue. But even this does not capture the difficulty
of the puzzle that the agency presented to her b ecause the contract only refers to the
statutory and regulatory provisions generically and contains no hint that their
significance might have anything to do with a deadline that the appellant was
responsible for meeting. Therefore, even if the appellant had, for some reason, decided
to read the code provisions mentioned in the contract, she would have had to find the
specific operative provisions among hundreds of non -operative ones, without even
knowing what she was looking for. IAF, Tab 15 at 100.
9
Government employees is important, particularly when the health and welfare of
vulnerable veterans is at stake, or when a failure to meet those expectations might
precipitate a congressional inquiry or result in employee discipline.7 See Harriss
v. Department of the Navy , 68 M.S.P.R. 427 , 434 (1995) ( finding that an
employee “may not be disciplined for failing to perform a du ty that the agency
did not make her aware she had”) . A responsible agency official could have
clearly notified the appellant that reconciliations must be completed promptly so
that the entire payment process takes no more than 30 days. For some reason,
this never happened . It may perhaps be inferre d that the payments were delayed
because some body at the agency was negligent, but the agency has not provided
substantial evidence to show that th e appellant was negligent under the
circumstances of this case .
¶16 As stated above, the administrative judge did not reach the appellant’s
affirmative defenses of sex discrimination and retaliation for equal employment
opportunity activity. ID at 14. However, these claims, if proven, could
potentially have garnered th e appellant further relief in the form of compensatory
damages. See 42 U.S.C. § 1981a (a)(1); see also Hodge v. Department of Veterans
Affairs , 72 M.S.P.R. 470, 472 (1996) (finding that, when an employee has
outstanding, viable claims of compensatory damage s, the agency’s complete
rescission of the action appealed does not aff ord h er all of the relief available
before the Board ). Nevertheless, the appellant, who is represented by an attorney,
did not make a request for damages as specified in 5 C.F.R. § 1201 .204 (a), and
she has not raised the issue on review. See 5 C.F.R. § 1201.115 (“The Board
normally will consider only issues raised in a timely filed petition or cross
7 The agency asserts that, “[t]he Chief of Social Work position is a high graded, GS -14,
position that should function independently.” PFR File, Tab 1 at 9. Although this may
be true, IAF, Tab 19 at 4, the agency is still responsible for informing the Soci al Work
Service Chief of the goals that it expects her organization to accomplish.
10
petition for revie w.”). We therefore decline to disturb the administrative judge’s
ruling on this matter.
ORDER
¶17 We ORDER the agency to c ancel the appellant ’s removal and to restore her
effective September 13, 2019. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶18 We also ORDER the agency to pay the appellant the cor rect amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benef its, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶19 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).
¶20 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
11
¶21 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Se rvice (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 paymen ts 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 en titled 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 DECI SION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offe r the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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.
12
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about wheth er a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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. 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
14
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
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
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. T he All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circui t or any other circuit court of appeals of competent jurisdiction.
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 judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will 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.
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. 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 damag es) 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 Ti cket, 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 D FAS 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 employmen t.
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 severa nce 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 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 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 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. | PEARCE_MARY_DE_0714_19_0443_I_1_FINAL_ORDER_2058703.pdf | 2023-08-11 | null | DE-0714 | NP |
2,803 | https://www.mspb.gov/decisions/nonprecedential/STERN_ERIN_E_NY_1221_21_0160_W_1_REMAND_ORDER_2058053.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIN E. STERN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-1221 -21-0160 -W-1
DATE: August 10, 2023
THIS ORDER IS NONPRECEDENTIAL1
Erin E. Stern , Baker, Florida, pro se.
Justina L. Lillis , Esquire, Buffalo, New York, for the agency.
Shelly S. Glenn , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMA ND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s Individual Right of Action (IRA) appeal for lack of
jurisdiction . For the reasons discussed below, we GRANT the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and admi nistrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 , VACATE the initial decision , and REMAND the case to the
New York Field Office for further adjudication in accordance with this Remand
Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant is a Military Services Coordinator (MSC) employed by the
agenc y’s Buffalo Regional Office in Buffalo, New York, who previously
performed duties at Fort Drum, New York, a U.S. Army (Army) installation.
Initial A ppeal File (IAF), Tab 12 at 4 -5. The appellant’s duties are to work with
Army personnel to timely develop Integrated Dis ability Evaluation System
compensation claims for service members transitioning to civilian life. Id. at 10.
¶3 In a prior IRA appeal, the appellant alleged that the agency took certain
personnel actions —including ordering her to work from ho me, denying her tools
and permissions necessary to perform her MSC duties, requiring her to perform
duties of another position, and proposing her removal —because of her protected
disclosures and activity . Stern v. Department of Veterans Affairs , MSPB Dock et
No. NY -1221 -19-0193 -W-1, Initial Appeal File (0193 IAF), Tab 103, Initial
Decision (0193 ID) at 8-10. In an April 14, 2020 initial decision, the
administrative judge found that the appellant made a prima facie case of
whistleblower reprisal and that, w ith the exception of the proposed removal, the
agency proved by clear and convincing evidence that it would have taken the
same actions absent the appellant’s protected disclosures or activity. Id. at 11-22.
The administrative judge found that the agency failed to meet its burden of proof
with respect to the notice of proposed removal , and she ordered corrective action
as to that personnel action. Id. at 23 -32. The initial decision became the final
decision of the Board when neither party petitioned the Board for review.
5 C.F.R. § 1201.113 .
¶4 On December 8, 2020, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that, in retaliation for various protected
3
disclosures and activity , the agency denied her MSC du ties beginning when she
was nominally reinstated to her MSC position on February 4, 2020. IAF , Tab 11
at 100 -03. The appellant also alleged that, in retaliation for protected disclosures
to the Board and to Congress and in violation of 38 U.S.C. § 731 , the agency
failed to discipline the supervisors who were found to have committed a
prohibited personnel practice in her prior IRA appe al.2 Id. at 103-05. After OSC
issued its close -out letter, IAF, Tab 12 at 8-9, 20-24, the appellant filed a timely
appeal with the Board , IAF, Tab 1. The appellant stated in her appeal that she did
not want a hearing. Id. at 2.
¶5 In a show cause order , the administrative judge notified the appellant of her
burden to establish the Board’s jurisdiction over her appeal, described the
applicable legal standards, and ordered the appellant to file a statement to
facilitate a determination of whether jurisdict ion existed. IAF, Tab 4. The
appellant filed evidence and argument in support of jurisdiction in response. IAF,
Tabs 11 -16. In an initial decision, the administrative judge dismissed the appeal
for lack of jurisdiction on the grounds that the three protected disclosures which
the appellant identified in her response to the show cause order —the appellant’s
December 8, 2020 OSC complaint ; July 2, 2020 emails the appellant sent to
Congress and various agency personnel , including an official at the agenc y’s
Office of Inspector General (OIG) ; and a November 12, 2020 email to
Congress —were made after February 2020, and therefore could not have possibly
2 The appellant also asserted claims in the section in the OSC complaint form for
“improper personnel actions” resulting in the violation of a law, rule, or regulation that
implements, or directly concerns, a merit system principle. IAF, Tab 11 at 108 -10.
However, the appellant did not identify a merit systems principle, nor any law, rule, or
regulation implementing a merit systems principle, that the agency allegedly violated,
and appears to have used this section to merely rehash her prior IRA appeal and
arguments she made in other sections. Id. The appellant also repeated the remedies she
sought in the section in the OSC complaint form for “other activities prohibited by
statute,” without asserting any new basis for relief. Id. at 110. Accordingly, w e find it
unnecessary to address her claims in these sections any further.
4
motivated the agency’s failure to reinstate her MSC duties in February 2020.
IAF, Ta b 19, Initial Decisi on (ID) at 5 -6.3
¶6 The appellant filed a petition for review in which, among other things, she
requests a hearing , argues that the administrative judge “did not give [her] a
chance to present the evidence . . . that formed the basis for [her] protected
discl osures,” Petition for Review (PFR) File, Tab 1 at 4, and claims that the
administrative judge erred because the agency’s failure to reinstate her MSC
duties occurred not just in February 2020 but over a “fluid date, ” id. at 5. She
also submits new evidence of allegedly protected disclosures or activity which
she claims she was not aware of despite her due diligence when the record closed.
Id. at 6-65. The agency filed a response. PFR File, Tab 3.
The appellant establish ed jurisdi ction over her claim that the agency failed to
reinstate her MSC duties because of her protected disclosures or activity .
¶7 If an appellant has exhausted her administ rative remedies before OSC, she
can establish Board jurisdiction over an IRA appeal by nonfr ivolously alleging
that: (1) she made a protected disclo sure described under 5 U.S.C. § 2302 (b)(8)
or engaged in protected activity d escribed 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)(2)(A). Chambers v. Department of Homeland Security ,
2022 MSPB 8 , ¶ 14. To satisfy the contributing factor criterion at the
jurisdictional stage, an appellant need only r aise a nonfrivolous allegation that the
3 The administrative judge characterized the appellant’s allegation as stating that, in
retaliation for her protected disclosures, she “has not been allowed to perform the duties
of her bid position and has not been reassigned, which contributed to a 3 of 5 rating on
her 2021 performance appraisal.” ID at 4. We do not read the appellant’s statements in
her OSC complaint regarding the agency’s reassignment attempts and her performan ce
rating as alleging separate retaliatory personnel actions or failures to take personnel
actions but rather as details regarding the retaliatory personnel action she did
allege —the agency’s failure to assign her MSC duties. IAF, Tab 11 at 100 -02.
5
fact of, or content of, the protected disclosure or activity was one factor that
tended to affect the personnel action in any way. Id.
¶8 One way to establish this criterion is the knowledge/timing test, under
which an employee may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official taking the personnel action knew of the disclosure or
activity, and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the person nel action. Id., ¶ 15 ; see 5 U.S.C. § 1221 (e)(1).
If an appellant fails to satisfy the knowledge/timing test, the Board must consider
other evidence, such as that pertaining to the strength or we akness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding official, and whether those
individuals had a desire or motive to retaliate against the appellant. Chambers ,
2022 MSPB 8 , ¶ 15.
¶9 We find that the administrative judge erred in determining that the Board
lacked jurisdiction over the appellant’ s appeal . We agree with the appellant’s
assertion on review that she alleged a continuing violation by the agency in its
failure to reinstate her MSC duties over a “fluid date ,” which her OSC complaint
and correspondence with OSC allege d occurred from February 4, 2020 , through
June 16, 2021 . IAF, Tab 11 at 102, Tab 12 at 16. In other words, the appellant
alleged a continuing failure to take a personnel action, namely a significant
change in duties, responsibilities , or working conditions under 5 U.S.C.
§ 2302 (a)(2)(A)(xii), that could theoretical ly have occurred because of protected
disclosures or activity the appellant made or engaged in either before or after
February 4, 2020 .
¶10 We further find that the appellant made a nonfrivolous allegation of Board
jurisdiction . In her OSC complaint, the appellant claimed both retaliation for
whistleblowing and retaliation for protected activity, IAF, Tab 11 at 95, and
6
claimed that the “alleged retaliation,” i.e., the agency’s failure to reinstate her
MSC duties, occurred because of, among other things, the fact of her prior IRA
appeal, id. at 101. The appellant’s prior IRA appeal is activity protected under
5 U.S.C. § 2302 (b)(9) (A)(i), Luecht v. Department of the Navy , 87 M.S.P.R. 297 ,
¶ 9 (2000) , and its subjec t matter comports with the appellant’s description of her
protected activity in her OSC complaint, IAF, Tab 11 at 100 -01; 0193 ID a t 10.
Further, two of the appellant’s supervisors whom she alleges were responsible for
the failure to restore her MSC dutie s testified at the hearing in her prior IRA
appeal on February 10 and 12, 2020 , 0193 IAF, Hearing Transcript , and were thus
undeniably made aware of the fact of, if not the content of, the appellant’s
protected activity at a time close to when the appellant alleges the agency’s
retaliation began. The Board has held that a personnel action taken within
approximately 1 to 2 years of an appellant’s disclosures or activity satisfies the
knowledge/timing test. Mastrullo v. Department of Labor , 123 M.S.P.R. 110 ,
¶ 21 (2015). Accordingly, the appellant nonfrivolously alleged that she engaged
in pro tected activity described unde r 5 U.S.C. § 2302 (b)(9)(A)(i) and that the
protected activity was a contributing factor in the agency’s decision to fail to take
a personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A) .4
¶11 The appellant also established jurisdiction over her claim that the agency
also failed to reinstate her MSC duties because of her July 2, 2020 email to
an agency OIG official . IAF, Tab 11 at 8 -9, 101. Under 5 U.S.C.
4 Contrary to the administrative judge’s statement that the appellant requested a hearing
on appeal, ID at 1, t he appellant requests a hearing for the first time in her January 13,
2022 petition for review , PFR File, Tab 1 at 4 . She did not a request a hearing in her
appeal form , IAF, Tab 1 at 2 , and a September 28, 2021 acknowledgment order
informed her that she had 10 days from the date of th at order to request a hearing or she
would otherwise waive her right to a hearing , IAF, Tab 2 at 1 -2. Because the appellant
has not shown good cause for her delay in requesting a hearing, she waived her right to
one. Nugent v. U.S. Postal Service , 59 M.S.P.R. 444 , 446 -47 (1993 ) (finding that the
appellant waived his right to a hearing when he failed to request one either on his
appeal form or within the timeframe establis hed by the administrative judge’ s order);
5 C.F.R. § 1201.24 (e).
7
§ 2302 (b)(9)(C), “cooperating with or disclosing information to the Inspector
General . . . of an agency” is protected activity, irrespecti ve of whether
an individual had a reasonable be lief that she was disclosing wrongdoing or the
content of the information . Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶ 62. The appellant’s July 2, 2020 email disclosed information to
the agency’s OIG, including that she had previously “won” her prior IRA appeal
and could not return to her MSC duties despite having been no minally reinstated
to her position. IAF, Tab 11 at 8 -9. Because the email was sent during the period
in which the retaliation allegedly continuously occurred —February 4, 2020 ,
through June 16, 2021 —and the email was also addressed to one of the officials
whom the appellant claims was responsible for the failure to restore her to her
MSC duties, id. at 8, 103, the appellant satisfied the knowledge/timing test, and
she therefore made a nonfrivolous allegation that the agency’s failure to restore
her to her MSC duties was also because of her July 2, 2020 email to OIG .
¶12 We find that Board jurisdiction does not extend to any of the appellant’s
additional claims of whistleblower reprisal . The only other purported ly protected
disclosures or activities the appella nt clearly identified in her OSC complaint and
pleadings were her December 8, 2020 OSC complaint and July 2 and
November 12, 2020 emails to Congress . Id. at 8, 10, 100-01; IAF, Tab 16 at 4.
However, e ven if any of these communications constituted protect ed disclosures
or activity, the appellant failed to nonfrivolously allege that any of the officials
with author ity to reinstate her MSC duties was aware of them —a requirement for
satisfaction of the knowledge/timing test —and we discern nothing in the record
that would establish a nonfrivolous allegation of the contributing factor
requirement on other grounds .
¶13 We also considered the appellant’s argument on review that the
administrative judge failed to afford her the opportunity to present evidence
regarding her protected disclosures, PFR File, Tab 1 at 4, and the exhibits she
submits on review which she claims she was not aware of despite her due
8
diligence when the record closed because they were mixed with other emails in
her possession and “ were not label[ed] with the rest of [h er] Congressional email
traffic, ” id. at 6. The administrative judge provided the appellant a detailed
notice regarding the requirements to establish Board jurisdiction over her IRA
appeal and order ed her to file a statement, “accompanied by evidence,” of facts
that would establish jurisdiction, including a list of her protected disclosures or
activities. IAF, Tab 4. Because the appellant failed to comply with this order,
the administrative judge issued her a second order to file evidence and argument
in support of Board jurisdiction. I AF, Tab 6 . Th e appellant’s argument that she
lacked the opportunity to establish jurisdiction is therefore without merit.
Finally, because the appellant’s argument seeking t o justify the untimely filing of
the exhibits she submits on review , all of which significantly predate the filing of
her appeal and have been in her possession and control, evidences her failure of
due diligence , we d ecline to consider tho se exhibits. Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980) ; see 5 C.F.R. § 12 01.115 (d).
The appellant failed to establish jurisdiction over her claim that the agency failed
to initiate discipline against her supervisors because of her protected disclosures
or activity .
¶14 We find that the appellant failed to establish jurisdiction over her separate
claim —which the initial decision did not address —that the agency failed to
initiate disciplinary procedures under 38 U. S.C. § 731 against her supervisors
responsible for the rescinded notice proposing her removal because of her
protected disclosures or activity . The Board lacks jurisdiction over this claim
because the statute authorizing IRA appeals for whistleblower repr isal claims
only allows an employee to seek corrective action from the Board in an IRA
appeal “ with respect to any personnel action taken, or proposed to be taken,
against such employee.” 5 U.S.C. § 1221 (a). The agency’s failure to discipline
other employees i s not on its face a personnel action taken, or proposed to be
9
taken, against the appellant. Accordingly, the appellant failed to make a
nonfrivolous allegation of Board jurisdiction over thi s claim.
ORDER
¶15 For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STERN_ERIN_E_NY_1221_21_0160_W_1_REMAND_ORDER_2058053.pdf | 2023-08-10 | null | NY-1221 | NP |
2,804 | https://www.mspb.gov/decisions/nonprecedential/SIMMONS_MARC_D_DE_0752_21_0326_I_1_FINAL_ORDER_2058105.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARC D. SIMMONS,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DE-0752 -21-0326 -I-1
DATE: August 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Muther , Jr., Esquire, Denver, Colorado, for the appellant.
Marie Clarke , 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 continuation of the appellant’s indefinite suspension after the
criminal charges against him were resolved. On petitio n for review, the agency
only disputes the administrative judge’s finding regardi ng the date on which the
criminal charges were resolved. Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no preceden tial value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to t he Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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
invo lved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under s ection 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. § 12 01.113 (b).
ORDER
¶2 We ORDER the agency to cancel the suspe nsion and retroactively restore
the appellant to his GS-9 Recreational Specialist position from February 11,
2021 , until December 9, 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.
¶3 We also ORDER the agency to pay t he 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 coope rate 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 believ es 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 t he 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).
¶6 For agencies whose payroll is administered by either the National Financ e
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.
NOTIC E TO THE APPELLANT R EGARDING
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 f ile a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
4
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 r eview of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situa tion and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your clai ms and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 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 an action that is appealable to the Board and that such action
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 re presentative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimi nation based on
6
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request 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
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 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
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 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 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 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 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, FL SA, 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. | SIMMONS_MARC_D_DE_0752_21_0326_I_1_FINAL_ORDER_2058105.pdf | 2023-08-10 | null | DE-0752 | NP |
2,805 | https://www.mspb.gov/decisions/nonprecedential/FISHER_KARI_DC_1221_22_0004_W_1_REMAND_ORDER_2058110.pdf | UNITED STATES OF AME RICA
MERIT SYSTEM S PROTECTION BOARD
KARI FISHER,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DC-1221 -22-0004 -W-1
DATE: August 10, 2023
THIS ORDER IS NONPRECEDENTIAL1
Sabastian S. Piedmont , Esquire, Syracuse, New York, for the appellant.
Byron D. Smalley , Esquire, and Davina Minnix , 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 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 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
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is employed as a GS-142 Attorney in the agency ’s Office of
Chief Counsel . Initial Appeal File (IAF), Tab 1 at 1; Tab 16 at 23 -24. On
October 3, 2021 , the appellant filed the instant IRA appeal alleging that she had
been subjected to several personnel actions in retaliation for her protected
whistleblowing disclosures and activities and requesting a hear ing on her appeal.
IAF, Tab 1 at 1 -4. With her initial appeal, the appellant provided a copy of a
close -out letter from the Office of Special Counsel (OSC) dated July 29, 2021.
Id. at 6-7.
¶3 The administrative judge issued a n IRA Jurisdictional Order in which she
apprised the appellant of the applicable law and burden of proof requirements for
an IRA appeal and ordered her to submit evidence and argument establishing
Board jurisdiction. IAF, Tab 3 at 1-7. The administrative judge also directed the
appellant to file a statement detailing each of her alleged protected disclosures or
activities, numbered and in chronological order, and each personnel action she
was subjected to , also numbered and in chronological order, along with an
explanation f or how she exhausted each specific claim with OSC. Id. at 7-9.
¶4 After the parties submitted their jurisdictional pleadings, IAF, Tabs 14 -18,
the administrative judge issued an initial decision concluding that the appellant
failed to make a nonfrivolous al legation that she made a protected disclosure or
engaged in protected activity that was a contributing factor in the agency ’s
decision to take a personnel action against her. IAF, Tab 2 1, Initial Decision (ID)
2 The appellant’s initial appeal identifies her position’s occupational series as “GS -9,”
and her grade as “14.” Initial Appeal File (IAF), Tab 1 at 1. Other pleadings make
clear that she currently occupies a GS -14 Attorney position with the agency. Peti tion
for Review File, Tab 1 at 6.
3
at 1 -7. Specifically, the administrative jud ge acknowledged the appellant ’s
allegations that she made numerous disclosures during the period from 2001
through 2017 but observed the appellant did not file her OSC complaint until
nearly 20 years after the first purported disclosure, in January 2021. ID at 4.
Noting the significant length of the delay , and crediting the agency ’s argument
that it was prejudiced by the appellant ’s delay in seeking corrective action, the
administrative judge concluded that the purported disclosures and retaliatory
person nel actions the appellant alleged she was subjected to during the period
from 2001 through 2017 were barred by the equitable doctrine of laches. ID
at 4-5.
¶5 Addressing the appellant ’s alleged protected activities, the administrative
judge acknowledged that the appellant submitted a grievance under the agency ’s
collective bargaining agreement in 2017, several equal employment opportunity
(EEO) complaints from 2017 through 2021, an Occupational Safety and Health
Administration (OSHA) complain t in 2021, a complaint with the Office of
Government Ethics in 2021, and a complaint to several U.S. Senators in
October 2021. ID at 6. However, she noted that the Board ’s expanded IRA
jurisdiction under the Whistleblower Protection Enhancement Act of 20 12
(WPEA) covers claims arising under 5 U.S.C. § 2302 (b)(9)(A)(i) (which concerns
protected activity seeking to remedy a violation of 5 U. S.C. § 2302 (b)(8)), but not
those arising under 5 U.S.C. § 2302 (b)(9)(A)(ii) . ID at 6. Reviewing the
substance of the appellant ’s complaints, t he administrative judge concluded that
they did not concern remedying violations of section 2302(b)(8) . ID at 6 -7.
Consequently, she concluded that the appellant also failed to nonfrivolously
allege that she engaged in any protected activity and dismissed the appeal for lack
of jurisdiction. ID at 6 -7.
¶6 The appellant has timely filed a petition for review of the initial decision,
arguing that the administrative judge erred in concluding that she failed to
nonfrivolously allege that she engaged in any protected activity that was a
4
contributing factor in any personnel action and in concluding that her protected
disclosures during the period from 2001 through 2017 were barred by the doctrine
of laches. Petition for Review (PFR) File, Tab 1 at 25-29. The agency has filed a
response i n opposition to the petition for review. PFR File, Tab 4. The appellant
has filed a reply. PFR File, Tab 5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that: (1) she made a disclosure described under 5 U.S.C. § 2302 (b)(8)
or engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency ’s decision to take or fail to take a personnel action. Salerno v.
Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016) . The Board generally
treats OSC exhaustion as a threshold determination before considering whether
the appel lant’s claims constitute nonfrivolous allegations of protected disclosures
or protected activities. See Carney v. Department of Veterans Affairs ,
121 M.S.P.R. 446 , ¶¶ 4 -5 (2014) (stating that the first element to Board
jurisdiction over an IRA appeal is exhaustion by the appellant of her
administrative remedies before OSC and that the next requirement is that she
nonfrivolously allege that she made a protected disclosure or engaged in
protected activity). Accordingly, we will first consider whether the appellant
exhausted her administrative remedy with OSC and, if that threshold requirement
is met, then consider whether she made nonfrivolous allegations that she made a
protected disclosure or engaged in a protected activity that was a contributing
factor to an agency personnel action. See Salerno , 123 M.S.P.R. 230 , ¶ 5.
5
The appellant failed to establish that she exhausted her admi nistrative remedies
with OSC regarding some of the challenged personnel actions .
¶8 To satisfy the exhaustion requirement of 5 U.S.C. § 1214 (a)(3), an appellant
must have provided OSC with a sufficien t basis to pursue an investigation into
her allegations of whistleblower reprisal. Chambers v. Department of Homeland
Security , 2022 MSPB 8 , ¶ 10. Generally, exhaustion can be demonstrated through
the appellant ’s initial OSC complaint, evidence the original complaint was
amended (including but not limited to OSC ’s determination letter and other letters
from OSC referencing any amended allegations), and the appellant ’s written
responses to OSC referencing the amended allegations. Mason v. Department of
Homeland Security , 116 M.S.P.R. 135 , ¶ 8 (2011). Alternatively, 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 her appeal. Chambers , 2022 MSPB 8 , ¶ 11. The purpose of requiring
an appellant to exhaust her remedies with OSC before filing an IRA appeal wit h
the Board is to give OSC “the opportunity to take corrective action before
involving the Board in the case. ” Id. Thus, “the Board ’s jurisdiction over an IRA
appeal . . . is . . . limited to those issues that have been previously raised with
OSC. ” Id.
¶9 In the initial decision, the administrative judge did not make any specific
findings concerning which of the appellant ’s claims she exhausted with OSC , but
she appears to have implicitly concluded that the appellant exhausted all of the
claims contained in the appellant ’s amended jurisdictional response. ID at 3;
IAF, Tab 16 at 4-16. That response contains a numbered chronological list of 27
disclosur es during the period from October 2001 through April 2021, 1 3 protected
activities during the period from January 2016 through June 2021, and various
personnel actions the appellant was subjected to during the period from 2006
through 2021, including 45 specific vacancy announcements for which she
applied but was not selected. Id. at 7-16.
6
¶10 In a July 29, 202 13 letter summarizing its investigation, OSC noted that it
sent the appellant a preliminary determination letter stating that it did not have
suffic ient context to evaluate the over 800 emails the appellant submitted as a
part of her OSC complaint and requested that the appellant produce a timeline of
her allegations. IAF, Tab 1 6 at 5 1. The appellant eventually produced the
requested timeline and pr ovided it to OSC, and OSC considered it in conducting
its investigation . Id. In a separate close -out letter also dated July 29, 202 1, OSC
identifie d the protected disclosures and activities it investigated in connection
with the appellant ’s complaint. IAF, Tab 1 at 6. The letter also identified
numerous personnel actions the appellant alleged the agency subjected her to
since 2008 , including threatening discipline , undertaking efforts to have her
involuntarily committed or resign/retire from her positio n, negative performance
appraisals from 2017 through 2021, a letter of counseling, denied leave and
telework requests, and nonselections for positions. Id.
¶11 Importantly, in the close -out letter, OSC identified 37 specific positions for
which the appellant alleged she had applied but was not selected since 2008 ,
listed by the position vacancy announcement number and the year the position
was posted . Id. at 6 n.1. Most of the 37 vacancies OSC identified are the same
ones the appellant identified i n the “Timeline of [prohibited personnel practices]
and Whistleblowing ” document she provided in her amended jurisdictional
response . Compare id., with IAF, Tab 16 at 87 -88, 103 -04. However, the
following eight nonselection positions were included on the appellant ’s timeline ,
as numbered , but were not among those that OSC identified that it investigated as
a part of the appellant ’s complaint: (7) CCSH -11-09 (Assistant to the Branch
Chief Detail – 2010); ( 10) Detail Positions (Two) with the ITA Front Office
3 The letter is dated July 29, 2020, but it is clear from the context that is a typographical
error and the letter should instead be dated July 29, 2021. See IAF, Tab 1 at 6 -7
(identifying July 29, 2021, as the date OSC closed its investigation).
7
Executives (Announced January 28, 2021); ( 11) CCJD -21-28 (Assistant to the
Branch Chief Detail – 2021); ( 12) CCJD -21-139 (Assistant to the Branch
Chief Detail – 2021); ( 1) CCTW -07-77 (General Tax Attorney, PSI - 2006); ( 30)
CCJD -20-D57 (FO Tax Law Specialist – 2020); ( 31) CCJD -21-16 (B4 Senior
Counsel – 2021); ( 32) CCJD -21-37 (B4 and B5 STRs – 2021) . Compare IAF,
Tab 1 at 6 n.1 , with Tab 16 at 87 -88, 103 -04.
¶12 The appellant also did not identify her nonsel ection for those vacancy
announcements as retaliatory personnel actions in her OSC complaint , nor did she
provide any of the over 800 emails she apparently provided to OSC detailing her
complaints . IAF, Tab 1 6 at 19 -49. Additionally, the appellant acknow ledged that
she continued to update the timeline document after OSC issued its close out
letter, and the version of the timeline document she submitted to the record
include s references to events that took place well after she filed her initial
complaint w ith OSC, so it is unclear whether she raised with OSC all of the
claims she listed on the timeline below . IAF Tab 16 at 56 n.1, 79-84.
¶13 To establish Board jurisdiction over a claim, the appellant must prove
exhaustion with OSC by preponderant evidence, not just present a nonfrivolous
allegation of exhaustion. 5 C.F.R. § 1201.57 (c)(1). Additionally, t he exhaustion
requirement in 5 U.S.C. § 1214 (a)(3) for an IRA appeal precludes the Board from
considering a personnel action that was not brought to OSC ’s attention. Mason ,
116 M.S.P.R. 135 , ¶ 8. Based on the record before us, w e conclude that the
appellant exhausted her claims that she was subje cted to the following personnel
actions identified in OSC ’s close -out letter : a hostile work environment ; threats
of reassignment and/or removal ; denials of leave and telework requests; negative
performance appraisals from 2017 through 2021 ; a letter of c ounseling ; and
nonselection for the 37 positions identified in OSC ’s letter . IAF, Tab 1 at 6-7.
However, we conclude that the appellant failed to demonstrate that she exhausted
with OSC her claims that she was not selected for the following vacancy
announcements identified in her amended jurisdictional response , but not
8
included in OSC ’s letter : (7) CCSH -11-09 (Assistant to the Branch Chief Deta il –
2010); (10) Detail Positions (Two) with the ITA Front Office Executives
(Announced January 28, 2021); (11) CCJD -21-28 (Assistant to the Branch Chief
Detail – 2021); (12) CCJD -21-139 (Assistant to the Branch Chief Detail – 2021);
(1) CCTW -07-77 (Genera l Tax Attorney, PSI - 2006); (30) CCJD -20-D57 (FO
Tax Law Specialist – 2020); (31) CCJD -21-16 (B4 Senior Counsel – 2021);
(32) CCJD -21-37 (B4 and B5 STRs – 2021).
¶14 Unlike the exhaustive review of all the personnel actions OSC investigated,
OSC ’s letter does not specifically address all 27 alleged disclosures and 1 3
alleged protected activities during the period from October 2001 through
June 2021 that the appellant identified in her jurisdictional response, and instead
generally reference s a number of these claims and notes that the appellant ’s
allegations span ned her “20-year career as an attorney at the IRS .” IAF, Tab 16
at 7-12, 51-54. Additionally, although the appellant ’s complaint to OSC also
does not include an exhaustive list of these purported disclosures and activities, it
does identify a number of these claim s and m ake reference to the fact that
additional details regarding the protected disclosures and activities were provided
to OSC in a supplemental document . Id. at 44-48. Thus, between the appellant ’s
OSC complaint and OSC ’s letter confirming that the appellant supplemented her
initial complaint with the timeline document that includes each of the claims
contained in her amended juris dictional response, we find that the appellant
exhausted the 27 alleged disclosures and 1 3 alleged protected activities listed in
her amended jurisdictional response .4 Id. at 7-12; see Chambers , 2022 MSPB 8 ,
¶ 11; Mason , 116 M.S.P.R. 135 , ¶ 8 .
4 We note that t he administrative judge appears to have considered a letter dated
October 12, 2021 , that the appellant sent to several U.S. Senators as a potential
protected disclosure or activity. ID at 6; IAF, Tab 11 at 11 -15. However, this letter is
dated after OSC issued its close -out letter on July 29, 2021, and so the appellant could
9
The administrative judge correctly determined that some of the appellant ’s claims
are barred by the equitable doctrine of laches.
¶15 The appellant argues on review that the administrative judge erred in
concluding that her protected disclosures were barred by the doctrine of la ches.
PFR File, Tab 1 at 28 -29. She argues that to invoke laches, the agency must
demonstrate both that the appellant ’s delay was unreasonable and that it was
materially prejudiced by the appellant ’s delay, and the agency cannot establish
either conditio n in this case. Id. at 28 -29. Specifically, she argues that despite
the agency ’s assertion that witnesses have retired or left the agency and thus are
unavailable, the fact that witnesses have retired does not, alone, establish that
they are unavailable. Id. at 28. She also asserts that the agency ’s argument that it
would be prejudiced due to the unavailability of documents related to the
appellant ’s claims is conclusory and the agency has not adequately demonstrated
that documents were actually lost an d that it is prejudiced. Id. at 28 -29. The
appellant further argues that her delay in filing the appeal was caused by her
belief and reassurances from agency management that the issues she disclosed
were being remedied. Id. Finally, she argues that lac hes is an equitable defense
and therefore it is premature to apply laches at the jurisdictional stage. Id. at 28.
¶16 The equitable defense of laches bars an action when an unreasonable delay
in bringing the action has prejudiced the party against whom the action is taken.
Johnson v. U.S. Postal Service , 121 M.S.P.R. 101 , ¶ 6 (2014). The Board has
acknowledged that laches may ap ply as a defense in an IRA appeal and may be
applied before reaching the merits of the appeal. Brown v. Department of the Air
Force , 88 M.S.P.R. 22 , ¶¶ 3, 7-10 (2001) . The party asserting laches must prove
both unreasonable delay and prejudice. Johnson , 121 M.S.P.R. 101 , ¶ 6. Under
laches, the mere fact that time has elapsed from the date a cause of action first
not have exhausted her administrative remedies for this claim. IAF, Tab 1 at 6-7,
Tab 11 at 11 -15.
10
accrued is not sufficient to bar suit; rather, the delay must be unreasonable and
unexcused. Cornetta v. United States , 851 F.2d 1372 , 1377 -78 (Fed. Cir. 1988).
There are two types of prejudice that may stem from a delay in filing suit. Id.
at 1378. The first type, defense prejudice, concerns the Government ’s ability to
mount a defense due to the loss of records, destruction of evidence, fading
memories, or unavailability of witnesses. Id. The second type, economic
prejudice, centers on consequences, primarily monetary, to the Government
shou ld the appellant prevail. Id.
¶17 In the initial decision, the administrative judge credited the agency ’s
argument that it was prejudiced by the appellant ’s unreasonable delay in
requesting corrective action because the appellant ’s disclosures span a more tha n
20 year period and many of the employees the appellant identified in connection
with her disclosures have long since retired or left the Federal Government and
are unavailable, and even if the agency were able to locate the individuals, it was
likely tha t their recollections of these events had faded. ID at 5. In making this
finding, however, the administrative judge did not distinguish between the
appellant ’s older disclosures and retaliatory personnel actions and her more
recent claims.
¶18 Reviewing th e appellant ’s disclosures, we agree with the administrative
judge ’s finding that Disclosures 1 through 11, dating to the period from 2001
through early 2014, are barred by laches. IAF, Tab 16 at 7 -9; ID at 4-5. The
most recent of those disclosures occurr ed at least 6 years before the appellant
filed her request for corrective action with OSC in January 2020. IAF, Tab 1 6
at 96; see Mercer v. Department of Health and Human Services , 82 M.S.P.R. 211 ,
¶ 11 (1999) (concluding that the length of the delay is , for purposes of applying
laches , based on the date of the la st pertinent event in that case, which was when
OSC terminated its investigation and not when the appellant ’s Board appeal rights
first vested). The Board and the U.S. Court of Appeals for the Federal Circuit
have regularly found similar delays to be unre asonable and applied laches to bar
11
such claims. See Pepper v. United States , 794 F.2d 1571 , 1573 -74 ( Fed. Cir.
1986) (stating that a 6 -year delay was inexcusable in concludin g that the claim
was barred by laches); Brown , 88 M.S.P.R. 22 , ¶¶ 3, 8 -10 (2001) (finding a 6 -year
delay to be unreasonable and applyi ng the doctrine of laches to bar an IRA
appeal) ; but see Social Security Administration v. Carr , 78 M.S.P.R. 313, 330
(1998) (finding that a 3 1/2 -year delay was not unreasonable based on the specific
facts of that case ), aff’d , 185 F.3d 1318 (Fed. Cir. 1999) ; Special Counsel v.
Santella , 65 M.S.P.R. 452 , 465 –66 (1994) (finding that OSC ’s 3-year delay in
bringing a disciplinary action was not unreasonable) .
¶19 Additionally , the agency has offered specific arguments to support its
assertion that it is prejudiced by the appellant ’s delay, noting that the subjects of
most of the early disclosures have either long since retired or left the agency, and
in some instances have lef t the country. IAF, Tab 15 at 8. The agency also notes
on review that the appellant did not first file any grievance or EEO complaint
until August 2017, and so prior to that date the agency would not have been on
notice that it needed to flag and retain files in anticipation of potential litigation.
PFR File, Tab 4 at 12 -13. Conversely, the appellant has not offered any
reasonable explanation for her lengthy delay , stating only that she was relying on
assurances from agency management that the issues di sclosed were being
remedied. PFR File, Tab 1 at 29.
¶20 As the appellant correctly notes, a witnesses ’ retirement does not, alone,
establish her unavailability for the purposes of establishing prejudice. PFR File,
Tab 6 at 10 -11; see Pueschel v. Department of Transportation , 113 M.S.P.R. 422 ,
¶ 8 (2010). However, the unavailability of many of the potential witnesses,
coupled wi th the likely loss of relevant documents and records , and the likelihood
of faded memories related to these events is sufficient to establish that the agency
would be prejudiced by the appellant ’s significant and unexplained delay.
Johnson , 121 M.S.P.R. 101 , ¶ 9 (finding that the unavailability of some relevant
witnesses, coupled with the loss of documents that could refresh their
12
recollections of events , was sufficient to establish prejudice against the agency
based on the appellant ’s 8-year delay in filing her appeal); cf. Hoover v.
Department of the Navy , 957 F.2d 861 , 862-64 (Fed. Cir. 1992) ( declining to
apply laches despite a 5 -year delay in filing a petition for enforcement, where the
agency failed to submit sufficient specific evidence to support its assertion of
prejudice) .
¶21 The sa me is true of the nonselections that occurred prior to 201 7. In its
jurisdictional response, the agency produced a sworn declaration from the Branch
Chief of the Classification and Benefits Branch attesting to the agency ’s
document retention policy. IAF, Tab 15 at 27 -29. As outlined in the policy, the
agency destroys records related to job vacancies , including applications, resumes,
vacancy candidate lists and ratings, certificates of eligibles , interview records and
notes, job offer acceptances/declinat ions, and more within 2 years after the
vacancy is closed by a hire or nonselection. Id. at 27 -28. The agency also
destroys excepted service appointment records for filling permanent or temporary
vacancies within 5 years after a candidate enters on duty, is no longer under
consideration, or declines an offer. Id. at 28 -29. Consequently, despite the
appellant ’s assertion otherwise, the agency has produced sufficient evidence
demonstrating that it is no longer in possession of many of the relevant records
related to the nonselections that occurred prior to 2017, and so the agency has
also demonstrated that it would be prejudiced by the appellant ’s delay in seeking
corrective action related to these claims. See Johnson , 121 M.S.P.R. 101 , ¶¶ 4,
8-9 (agreeing with the administrative judge ’s finding that the appellant ’s claims
were barred by laches based, in part, on the agency ’s uncontested assertion that it
was prejudiced because the relevant documents were likely destroyed pursuant to
the agency ’s 5-year document retention policy).
¶22 In sum, we agree with the administrative judge that the agency has
produced sufficient evidence to demonstrate that it would be unreasonably
prejudiced by the appellant ’s significant unexplained delay in seeking corrective
13
action related to Disclosures 1 through 11, encom passing the period from
October 2001 through early 2014, and so those claims are b arred by the doctrine
of laches. IAF, Tab 16 at 7 -9. However, we conclude that the administrative
judge erred in finding that Disclosures 12 through 27, encompassing the period
from August 2014 through April 2021, were also barred by laches. IAF, Tab 16
at 9-10. The agency also established that it would be unreasonably prejudiced by
the appellant ’s unexplained delay in seeking corrective action related to the
following nonselection personnel actions, as numbered in the appellant ’s
amended response: (1) CCNH -15-55 (Assistant to the Branch Chief Detail –
2015) ; (3) CCVL -16-50 (Assistant to the Branch Chief Detail – 2016) ; (4) Detail
Position of Technical Advisor, Office of the Special Counsel, National Taxpayer
Advocate (Announced February 3, 2014); (5) D etail Position of Technical
Advisor, Office of the Special Counsel, National Taxpayer Advocate (Announced
August 14, 2014); (6) Detail Positions (Two) with the Division Counsel, Wage &
Investment (Announced July 15, 2014); (8) CCLO -08-90 (Assistant to the Branch
Chief Detail – 2008); (2) CCCM -ERB -12-64 (B1 Branch Chief - 2012); (3)
CCJL -ERB -13-55 (Special Counsel, Litigation - 2013); (4) CCJL -ERB -13-72 (B2
Senior Counsel - 2013); (5) CCNF -ERB -15-23 (B5 STR - 2015); (6) CCCM -
ERB -14-36 (B6 Senior Counsel - 2014); (7) GS -ERB -10-51 (B2 STR – 2010); (8)
CCCM -ERB -16-20 (B2 Branch Chief – 2016); (9) CCCM -ERB -16-46/52
[announced twice] (B1 STR – 2016); (10) & (11) GS -ERB -09-24 (B5 & B7 STR
– 2009); (12) CCNF -ERB -16-08 (B5 STR – 2015); (13) GS -ERB -10-34 (B6 STR
– 2010); (14) & (15) CCNF -ERB -15-13 (2 Special Counsels – 2015); (16)
CCCM -ERB -16-11 (Special Counsel – 2016); (17) CCNF -ERB -15-33 (B7 Senior
Counsel – 2015); (18) CCCM -ERB -16-27 (B5 Senior Coun sel – 2016). IAF,
Tab 16 at 14-15. Each of these vacancies was an nounced at least 5 years ago, and
the agency has indicated that the relevant documents for the vacancies were
destroyed in conformity with its document retention policy. See Johnson ,
121 M.S.P.R. 101 , ¶¶ 4, 8-9.
14
The appellant made nonfrivolous allegations that she made at least one protected
disclosure or engaged in at least one protected activity and was subjected to at
least one covered personnel action .
The appellant nonfrivolously alleged that the agency took at least one
personnel action against her.
¶23 In cases such as this one, when the appellant has alleged multiple personnel
actions, the Board has jurisdiction when the appellant exhausts her administrative
remedies before OSC and makes a nonfrivolous allegation that at least one
alleged personnel acti on was taken in reprisal for at least one alleged protected
disclosure. Usharauli v. Department of Health and Human Services ,
116 M.S.P.R. 383 , ¶ 19 (2011) . As previously discussed, the appellant exhausted
her administrative remedies before OSC and is not barred by laches from raising
the following personnel actions taken against her in reprisal for her protected
disclosures or acti vities: she was threatened with discipline, including
reassignment or removal ; she received lowered performance appraisals from 2017
through 2021; she was issued a letter of counseling; her leave and telework
requests were denied ; and the agency failed to select her for the identified
positions advertised after 2017. See supra ¶ 22.
¶24 Regarding the appellant ’s claim that she was threatened with reassignment
or removal, i t is well established that a threatened personnel action is a covered
personnel action u nder the WPEA. IAF, Tab 16 at 79 (noting that she was
threatened with termination following a written counseling in October 2019, and
again threatened with termination in January 2020) ; see Rebstock Consolidation
v. Department of Homeland Security , 122 M.S.P.R. 661 , ¶ 10 (2015) (explaining
that the term “threaten ” in 5 U.S.C. § 2302 should be interpreted broadly and can
encompass warnings of possible future discipline). A negative performance
evaluation is also a personnel action for purposes of an IRA appeal. 5 U.S.C.
§ 2302 (a)(2)(A)(viii); IAF, Tab 16 at 76, 78 -79, 80 (stating that she was issued
derogatory performance reviews in 2017 -2020).
15
¶25 Additionally, a counseling memorandum can constitute a threatened
personnel action when it warns of future disci pline . IAF, Tab 16 at 79 (noting
that the appellant was counseled verbally and in writing and was threatened with
termination in October 2019); see Campo v. Department of the Army , 93 M.S.P.R.
1, ¶¶ 7 -8 (2002) . A denial of annual leave can constitute a decision concerning
benefits, and thus constitute a personnel action for purposes of an IRA appeal.
IAF, Tab 16 at 79 (noting that in January 2020 , the appellant was denied
advanced annual and medical leave); see Marren v. Department of Justice ,
50 M.S.P.R. 369 , 373 (1991). A cancelation of a telework a greement can
constitute a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(xii) to the extent
that it represents a significant change in working conditions . IA F, Tab 16 at 79
(noting that in October 2019, management altered the appellant’s ability to
telework); see Rumsey v. Department of Justice , 120 M.S.P.R. 259 , ¶ 23 (2013) .
A nonselection is also a personnel action for the purposes of an IRA appeal . IAF,
Tab 16 at 14 -15 (identifying the list of positions the appellant was not selected
for in retaliation for her protected disclosures and activities); see Ruggieri v.
Merit Systems Protection Board , 454 F.3d 1323 , 1327 (Fed. Cir. 2006) .
¶26 Finally, a “hostile work environment ” may establish a personnel action in
an IRA appeal only if it meet s the statutory criteria under 5 U.S.C.
§ 2302 (a)(2)(A), i.e., constitute s a significant change in duties, responsibilities,
or working conditions. See Skarada v. Department of Veterans Affairs ,
2022 MSPB 17 , ¶¶ 16-18. Although the Board has held that the “significant
change ” personn el action should be interpreted broadly to include harassment and
discrimination that could have a chilling effect on whistleblowing or otherwise
undermine the merit system, only agency actions that, individually or
collectively, have practical and signifi cant effects on the overall nature and
quality of an employee ’s working conditions, duties, or responsibilities will be
found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). Id,
¶ 16. In determining whether a hostile work environm ent is present, the Board
16
will consider the totality of the circumstances, including agency actions that may
not individually rise to the level of a personnel action. Id., ¶ 18. In Skarada , the
Board found that an appellant nonfrivolously alleged he was subjected to a
personnel action when an agency excluded him from meetings and conversations,
subjected him to multiple investigations, accused him of fabricating data violating
the Privacy Act, refused his request for a review of his position for possible
upgrade, yelled at him on three occasions, and failed to provide him the support
and guidance needed to successfully perform his duties. Id., ¶ 18.
¶27 Here, the appellant has provided an extensive list of wrongful actions she
alleges were undertaken by the agency from 2014 onward that she claims amount
to a hostile work environment, including , for example, the following: she was
recorded, listened to on phone lines, and spied on at the worksite; other
employees used her timesheets ; she was consistently subjected to harassment,
gossip, and false rumors abo ut her physical characteristics and features ; she was
falsely accused of being in sexual relationship s with agency supervisors ; she was
accused of being “crazy ”; she was sexually harassed and stared at; she was
professionally sabotaged; she was mocked and intimidated; she was accused of
holding certain political views; and she was subjected to unnecessary background
investigations. IAF, Tab 16 at 9 -10, 69 -70, 73 -74, 79, 88 -93.
¶28 Based on the existing rec ord, we find that the appellant ’s contentions
regarding her hostile work environment claim , if accepted as true, collectively
amount to a nonfrivolous allegation of a significant change in working conditions.
See Skarada , 2022 MSPB 17 , ¶ 18 ; see also Sistek v. Department of Veterans
Affairs , 955 F.3d 948 , 955 (Fed. Cir. 2020) (noting that retaliatory investigations
are not personnel actions in and of themselves , but such investigations may
contribute towards “a significant change in working conditions ” that can arise to
the level of a personnel action); Spivey v. Department of Justice , 2022 MSPB 24 ,
¶ 10 ; Covarrubias v. Social S ecurity Administration , 113 M.S.P.R. 583 , ¶¶ 8, 15
n.4 (2010) (finding that the appellant made a nonfrivolous allegation of a
17
significant change in working conditions when she alleged, among other things,
that her supervisors harassed her and closely monitored her whereabouts, to
include following her to the bathroom), overruled on other grounds by Colbert v.
Department of Veterans Affairs , 121 M.S.P.R. 677 , ¶ 12 n.5 (2014) .
¶29 In summary, after careful review, we conclude that the appellant
nonfrivolously alleged that she was subjected to the following personnel actions:
(1) threats of discipline, including reassignment or removal; (2) lowered
performance appraisals from 2017 t hrough 2021; (3) a letter of counseling;
(4) denial of leave; (5) denial of telework; (6) a significant change in her working
conditions; and (7) nonselection for the following positions as numbered in her
amended jurisdictional response: (2) CCVL -17-09 (Assistant to the Branch Chief
Detail – 2017) ; (9) CCKM -19-65 (Assistant to the Branch Chief Detail – 2019);
(1) CCCM -ERB -17-21 (B7 STR - 2017) ; 19) CCCM -ERB -18-06 (B3 Branch
Chief - 2018); (20) CCCM -ERB -18-46 (B4 Branch Chief – 2018); (21) & (22)
CCCM -ERB -18-38 (2 Special Counsels – 2018); (23), (24) & (25) CCCM -ERB -
18-39 (B1, B2, & B3 STR – 2018); (26), (27) & (28) CCCM -ERB -18-53 (B1, B2,
and B7 Senior Counsels – 2018); (29) CCCM -ERB -18-78 (B4 STR – 2018). As
to the appellant ’s remaining nonselection clai ms, as previously noted, the
appellant either failed to exhaust them or they are barred by laches. Supra
¶¶ 13, 22.
The appellant failed to nonfrivolously allege that she made a protected
disclosure or engaged in protected activity in connection with Disclosures
16, 17, 18, 19, 20, 21, and 24 , and Protected Activities 7, 8, and 9.
¶30 A nonfrivolous allegation of a protecte d whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Salerno ,
123 M.S.P.R. 230 , ¶ 6. The test to determine whether a putat ive whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
18
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced a violation of law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id.
¶31 The remaining disclosures that are not barred by the doctrin e of laches are
Disclosures 12 through 27. IAF, Tab 16 at 9 -10, 69 -84. Disclosures 18, 19, 20,
21, and 24 concern EEO complaints the appellant filed during the period from
December 2017 through February 2021. IAF, Tab 16 at 10, 75 -78, 80 -81. The
Board recently reaffirmed that filing an EEO complaint is a matter relating solely
to discrimination and is not protected by 5 U.S.C. § 2302 (b)(8). Edwards v.
Department of Labor , 2022 MSPB 9 , ¶¶ 10 -13, 20, 22 -23, aff’d , No. 2022 -1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023) ; see Williams v. Department of
Defen se, 46 M.S.P.R. 549 , 554 (1991). Further , there is no indication in the
record that the substance of her EEO complaint s sought to remed y a violation of
5 U.S.C. § 2302 (b)(8) . T he appellant did not provide copies of the EEO
complaints or a detailed description of the contents of the complaints below, and
what little information sh e did provide about the complaints indicates that they do
not concern remedying a violation of whistleblower reprisal under 5 U.S.C.
§ 2302 (b)(8) .
¶32 Instead, the EEO complaints, as described by the appellant, concerned her
personal objections to various employment matters , such as lowered performance
ratings, reduced credit hours and telework opportunities, and denied promotions .
IAF, Tab 16 at 75 -78, 80 -81, 85 -86. Consequently, the appellant has failed to
nonfrivolously allege that she made a protected disclosure or engaged in
protected activity in connection with these claims. Cf. Mudd v. Department of
Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7 (2013) (recognizing that under the
WPEA , the Board ’s jurisdiction in IRA appeals was expanded to cover claims of
19
reprisal for EEO complaints in which the appellant sought to remedy
whistleblower reprisal) .
¶33 Similarly, Protected Activities 7, 8, and 9 concern step 1 and step 2
grievances the appellant filed related to lowered performance ratings ,
discrimination, and her nonselection for a position . IAF, Ta b 16 at 11, 75, 84.
None of the appellant ’s grievances concerned remedying a violation of
whistleblower reprisal under 5 U.S.C. § 2302 (b)(8), and so the Board lacks IRA
jurisdiction over these act ivities . See Young v. Merit Systems Protection Board ,
961 F.3d 1323 , 1329 (Fed. Cir. 2020) (stating that “[s]ection 2302(b)(9)(A)(ii),
which is not included in the list of p rohibited personnel practices for which the
Board can issue corrective action, covers retaliation for exercising any appeal,
complaint, or grievance right other than one seeking to remedy a violation of
section 2302(b)(8)[,] [r]etaliation for filing those other types of complaints is
remediable through different mechanisms, and not by an IRA appeal to the
Board ”); Mudd , 120 M.S.P.R. 365 , ¶ 7. Accordingly, we conclude that the
appellant failed to nonfrivolously allege that the Board has jurisdiction over these
grievances .5
5 The appellant identifies Disclosures 16 and 17 as her filing of union grievance s on
these same issues. IAF, Tab 16 at 10. Accordingly, we need not separately consider
these claims .
20
The appellant made a nonfrivolous allegation of a protected disclosure in
connection with Protected Activity 3.6
¶34 For Protected Activity 3, the appellant alleges that in 2016, she reported to
her manager that a secretary in her branch made an unauthorized disclosure of
taxpayer information . IAF, Tab 16 at 11, 73. The appellant also alleged that she
was obligated to di sclose the unauthorized discl osure of taxpayer information.
Under section 6103(a) of the Internal Revenue Code (IRC), 26 U.S.C. § 6103 (a),
it is unlawful for any officer or employee of the United States to willfully
disclose taxpayer information to any unauthorized person, and violators can be
subject to criminal penalties. I.R.C. § 6103; see Payne v. United States , 289 F.3d
377, 378 -79 (5th Cir. 2002) ; United States v. Chemical Bank , 593 F.2d 451 , 457
(2d Cir. 1979). Additionally, sectio n 7431 of the IRC, 26 U.S.C. §§ 7431 (a)-(c),
authorizes affected taxpayers to bring a civil action for damages based on the
unlawful disclosure of taxpayer information. I.R.C. § 7431 ; see Lampert v.
United States , 854 F.2d 335 , 336 (9th Cir. 1988). Therefore , the appellant could
have reasonably believed that she was disclosing a violation of law in connection
with her reporting of an agency secretary ’s purportedly unlawful discl osure of
taxpayer information. See Schlosser v. Department of the Interior , 75 M.S.P.R.
15, 21 (1997) (concluding that an appellant could 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
6 As previously discussed, the appellant demon strated that she exhausted this disclosure
with OSC. Supra ¶ 14. We recognize that the appellant identified this disclosure as a
protected activity. IAF, Tab 16 at 11. To the extent she was asserting that her
disclosure was protected under 5 U.S.C. § 2302 (b)(9)(C) as a disclosure to an agency
“component responsible for internal investigation or review,” we disagree. Congress
expanded protected activities to include such disclosures in December 2017; however,
that expansion is not retroactive. Edwards , 2022 MSPB 9 , ¶¶ 29 -33. In any event, we
find, as discussed here, that the appellant nonfrivolously alleged that she made a
protected disclosure. For the sake of consistency with the appellant’s designation, we
have continued to refer to her disclosure as “Protected Activity 3.”
21
that his belief was shared by other similarly situated employees ). Consequently,
we conclude that the appellant nonfrivolously alleged that Protected Activity 3 is
a disclosure protected under 5 U.S.C. § 2302 (b)(8)(A )(i). See Hupka v.
Department of Defense , 74 M.S.P.R. 406, 410 -11 (1997 ) (concluding that a
disclosure of a potential Privacy Act violation can constitute a protected
disclosure) ; Zygmunt v. Department of Health and Human Services , 61 M.S.P.R.
379, 382 (1994) (same) .
The appellant nonfrivolously alleged that Protected Activity 3 was a contributing
factor in the agency ’s decision to take a personnel action.
¶35 To satisfy the contributing factor criterion at the jurisdictional stage , an
appellant need only raise a nonfrivolous allegation that the fact or content of her
disclosure or protected activity was one factor that te nded to affect the personnel
action in any way. See Salerno , 123 M.S.P.R. 230 , ¶ 12. Whether the appellant ’s
allegations can be p roven on the merits is not part of the jurisdictional inquiry.
Lane v. Department of Homeland Security , 115 M.S.P.R. 342 , ¶ 12 (2 010).
¶36 One way to establish this criterion is the knowledge/timing test, under
which an appellant may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence t hat the official taking the personnel action knew of the disclosure or
activity, and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the pe rsonnel action. 5 U.S.C. § 1221 (e)(1); see Salerno ,
123 M.S.P.R. 230 , ¶ 13. With regard to the knowledge prong of this test, an
appellant may establish, for jurisdictional purposes, that a disclosure or activity
was a contributing factor in a personnel action by nonfrivolously alleging that the
official taking the personnel action had actual or constructive knowledge of the
disclosure or activity. See Wells v. Department of Homeland Security ,
102 M.S.P .R. 36 , ¶ 8 (2006). Regarding the timing portion of the test, t he Board
has held that a personnel action taken within approximately 1 to 2 years of an
22
appellant ’s disclosures satisfies the timing prong . See Skarada , 2022 MSPB 17 ,
¶ 19 (observing that a personnel action taken within approximately 1 to 2 years of
the appellant ’s disclosure satisfies the timing factor of the knowledge/timing
test); Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶ 21 (2015) (same).
Additionally, for the timing prong the relevant inquiry is the time between when
the agency official taking the action had actual or constructive knowledge of the
disclosure or activity —not necessarily the date of the disclosure or activ ity
itself —and the time that the action was taken. See Wells , 102 M.S.P.R. 36 , ¶ 8.
¶37 The appellant alleged that immediately after she disclosed the potential
unauthorized disclosure of taxpayer information to her manager , the manager and
her “co-worker friends ” retaliated against her by subjecting her to a hostile work
environment, including by sexually harassing her, spying on her, monitoring her,
and misusing their official positions by holding case files that she needed in order
to perform her duties for extended periods of time . IAF, Tab 16 at 73 ; see
Skarada , 2022 MSPB 17 , ¶ 18 ; Covarrubias , 113 M.S.P.R. 583 , ¶¶ 8, 15 n.4 .
Based on the foregoing, we conclude that the appellant has nonfrivolously alleged
that at least one protected disclosure or protected activity was a contributing
factor in the creation o f a hostile work environment that constituted a significant
change in her working conditions.
We remand the appeal for the administrative judge to further develop the record
and make new findings on the issue of jurisdiction .
¶38 As previously discussed, the administrative judge erred by determining that
all of the appellant ’s purported disclosures and personnel actions during the
period from 2001 through 20 17 were barred by laches —even those that occurred
within 6 years of the date the appellant filed her co mplaint with OSC. Supra
¶ 22. We also determined that the appellant failed to nonfrivolously allege that
Disclosures 16, 17, 18, 19, 20, 21, and 24, and Protected Activities 7, 8, and 9,
are within the Board ’s IRA jurisdiction . Supra ¶¶ 30-33. However , because the
administrative judge dismissed all of the appellant ’s disclosures as barred by
23
laches, including those that occurred after 2014, she did not make any findings
concerning whether the appellant nonfrivolous ly alleged that she made a
protected di sclosure with respect to any of the remaining claims. Further ,
although the administrative judge generally determined that the appellant ’s 2017
grievance, 2017 through 2021 EEO complaints , 2021 complaint to OSHA, and
2021 complaint to the OGE were not pro tected activities because they did not
concern remedying a violation of whistleblower reprisal under 5 U.S.C.
§ 2302 (b)(8), the analysis of these claims was cursory and did not offer any
detail s about the nature of the appellant ’s specific claims in each complaint or
address the individual claims with any degree of specificity .7 ID at 6 -7; IAF,
Tab 16 at 19 -49, 69 -84.
¶39 Based on our review of the record, we have concluded that the appellant
nonfr ivolously alleged that she made at least one protected disclosures with
respect to Protected Activity 3 and nonfrivolously alleged that she was subjected
to at least one personnel action when she was subjected to a retaliatory hostile
work environment that caused a significant change in her w orking conditions .8
The Board ’s ordinary practice is to make a jurisdictional finding in an IRA appeal
based on the parties ’ written submissions. See Spencer v. Department of the
7 Additionally, a number of these complaints a ppear to concern disclosures of
information under 5 U.S.C. § 2302 (b)(8) as opposed to appeals, complaints, or
grievances under 5 U.S.C. § 2302 (b)(9). See 5 U.S.C. §§ 2302 (b)(8) (identifying
categories of “disclosures ” of information protected under that section), 2302(b)(9)
(identifying types of activities protected under that section) .
8 Due to how complex and numerous the appellant ’s claims are, our discus sion here is
limited to addressing our ultimate inquiry which is whether she has established
jurisdiction over her claims; that is, whether she has nonfrivolously alleged tha t at least
one protected disclosure or activity was a contributing factor in at least one personnel
action. See Skarada , 2022 MSPB 17 , ¶ 13 (explaining that, in cases when an appellant
has alleged multiple personnel actions, the Board has jurisdiction over the appeal when
the appellant exhausts her administrative remedy and makes a nonfrivolous allegation
that at least one a lleged personnel action was taken in reprisal for at least one alleged
protected disclosure).
24
Navy , 327 F.3d 1354 , 1356 (Fed. Cir. 2003); Shope v. Department of the Navy ,
106 M.S.P.R. 590, ¶ 5 (2007) . In certain circumstances, however, the Board has
remanded the appeal for the administrative judge to further develop the record on
the issue of jurisdiction and to issue a new jurisdictional finding . See Wilcox v.
International Boundary and Water Commission , 103 M.S.P.R. 73 , ¶¶ 15 -16;
Wells , 102 M.S.P.R. 36 , ¶¶ 4, 9-10.
¶40 Additionally, an initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
administrative ju dge’s conclusions of law and her 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). Given the extensive nature of the
appellant ’s claims and the fact that the administrative judge ’s laches finding s
precluded a full review of the allegations the appellant exhausted with OSC , we
remand the appeal for the administrative judge to make new jurisdictional
findings. On remand the administrative judge shall make new findings
concerning whether the appella nt nonfrivolously alleged that she made a
protected disclosure or engaged in protected activity in connection with the
following claims that are not bared by laches, as identified in the appellant ’s
amended jurisdictional response: Disclosures 12, 13, 14, 15, 22, 23, 25, 26, and
27, and Protected Activities 1, 2, 4, 5, 6, 10, 11, 12, 13. The administrative judge
shall subsequently make findings concerning whether the appellant
nonfrivolously alleged that these disclosures or activities were a contributing
factor in the agency ’s decision to take, fail to take, or threaten to take any of the
previously identified personnel actions. Yunus v. Department of Veterans Affairs ,
242 F.3d 1367 , 1371 (Fed. Cir. 2001); Salerno , 123 M.S.P.R. 230 , ¶ 5. If the
administrative judge determines that the appellant established Board 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 by preponderant evidence that a protected disclosure or activity
25
was a contributing factor in one of the personne l action s, the administrative judge
shall order corrective action unless the agency proves by clear and convincing
evidence that it would have taken the same actions absent the protected activity .
Id.; see 5 U.S.C. § 1221 (e).
ORDER
¶41 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 | FISHER_KARI_DC_1221_22_0004_W_1_REMAND_ORDER_2058110.pdf | 2023-08-10 | null | DC-1221 | NP |
2,806 | https://www.mspb.gov/decisions/nonprecedential/MARTINEZ_MICHAEL_G_DA_844E_21_0160_I_1_FINAL_ORDER_2058144.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL G. MARTINEZ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-844E -21-0160 -I-1
DATE: August 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael G. Martinez , San Antonio, Texas, pro se.
Jo Bell , 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
affirmed the Office of Personnel Management’s final decision denying his
application for Federal Employees’ Retirement System (FERS) disability
retirement . On petition for review, the appellant argues that 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 did not properly weigh the medical evidence, which shows that his
preexisting medical conditions were well -managed prior to his return to duty on
December 9, 2019 . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fa ct; 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 we re not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not avail able when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that th e 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 deci sion. 5 C.F.R. § 1201.113 (b).
¶2 For the reasons explained in the initial decision, we agree with the
administrative judge that the appellant provided insufficient evidence to show
that he became disabled “while employed in a position subject to FERS.” We
have considered the evidence that the appellant submitted, but we find it highly
unlikely that the appellant’s preexisting cond itions were not disabling until he
showed up for a single day of sedentary work on December 9, 2019. Nothing in
any of the medical evidence provides any persuasive explanation about what
could have happened on that one particular day to change the appella nt’s
conditions from “managed at a moderate level” to disabling.
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 cl aims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Me rit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of y our case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circu it, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protect ion Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discri mination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of th is decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives 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
5
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 decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office 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
6
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 wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARTINEZ_MICHAEL_G_DA_844E_21_0160_I_1_FINAL_ORDER_2058144.pdf | 2023-08-10 | null | DA-844E | NP |
2,807 | https://www.mspb.gov/decisions/nonprecedential/SULLIVAN_JOHN_V_DC_0831_21_0314_I_1_FINAL_ORDER_2058230.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN V. SULLIVAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0831 -21-0314 -I-1
DATE: August 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Sullivan , Springfield, Virginia, for the appellant.
Tanisha Elliott Evans , Esquire, 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 reconsideration decision of the Office of Personnel Management
(OPM) affirming an OPM initial decision that calculated the appellant’s survivor
annuity as 50% of his ann uity. For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
agency’s petition for review and VACATE and REVERSE the initial decision,
finding that OPM ’s calculation of the appellant’s survivor annuity as 50% of his
annuity was correct .
DISCUSSION OF ARGUME NTS O N REVIEW
¶2 The appellant , who had been covered by the Civil Service Retirement
System ( CSRS ) for over 28 years before electing Federal Employee Retirement
System ( FERS ) coverage in 1998 , retired from Feder al service in 20122 and began
receiving an annuity . Initial Appeal File (IAF), Tab 6 at 23, 43-50. His annuity
was reduced by 10% pursuant to his election of a maximum survivor annuity for
his spouse , as required under the FERS provision codified at 5 U.S.C.
§ 8419 (a)(1) . Id. at 23, 43, 46. After OPM informed him that the survivor
annuity he had provided for would be calculated as 50% of his unreduced gross
annuity, the appellant replied that the survivor annuity should instead be
calculated by applying the 55% rate for survivor annuities under CSRS and the
50% rate for survivors annuities under FERS in proportion to his respective years
of employment under those two systems , which would yield a higher sum than
that derived by OPM . Id. at 38-42. OPM issued the appellant an initial decision
confirming that as a “FERS case with a CSRS component ,” the survivor annuity
was appropriately calculated as 50% of his basic annuity.3 Id. at 23 -24. The
appellant request ed reconsider ation , and OPM affirmed its initial decision in a
reconsideration decision which the appellant appealed to the Board, declining a
hearing. Id. at 9-11, 22; IAF, Tab 1 at 2.
2 Though the initial decision incorrectly stated that the appellant retired in 2013 , Initial
Appeal File, Tab 16 , Initial Decision at 2, this error is immaterial to the outcome of th e
appeal.
3 OPM issued a separate initial decision , which is not at issue in this appea l, pertaining
to the effect of cost-of-living adjustments on the potential survivor annuity based on the
appellant’s service . IAF, Tab 6 at 37 .
3
¶3 During the appeal, the appellant cited 5 C.F.R. § 846.304 (a)(1) and (2) ,
which cover the computation of FERS annuities for persons with CSRS service,
to support his argument that OPM was required to apply the CSRS survivor
annui ty provisions, including the 55% rate, to th e CSRS component of his
service . IAF, Tab 13 at 4 -8. The administrative judge agreed and revers ed
OPM’s reconsideration decision in the Board’s initial decision . IAF, Tab 16 ,
Initial Decision (ID) at 9, 12.
¶4 In its p etition for review, OPM argues , among other things, that the Board’s
initial decision conflicts with provisions of the Federal Employees ’ Retirement
System Act of 1986 (FERSA), 5 U.S.C. § 8331 note, including § 302(a)(4) of
FERSA , which excludes the application of 5 U.S.C. § 8339 (j)—a provision
setting forth annuity reductions to provide for survivor annuities under
CSRS —from the computation of annuities of CSRS -covered individuals electing
FERS coverage . Petition for Review (PFR) File, Tab 1 at 5, 15-16 (citing
Pub. L. No. 99-335, § 302 (a), (a)(4) , 100 Stat. 514, 601, 603 (1986) ). The
appellant filed a response arguing , among other things, that OPM’s argument
invoking FERSA erroneously “conflates” the annuity reduction for a CSRS
survivor annuity in 5 U.S.C. § 8339 (j) with the 55% CSRS survivor annuity rate,
which FERSA does not exclude from the computation of the survivor annuity
based on his service . PFR File, Tab 3 at 10-11.
OPM correctly applied the 50% FERS rate to compute the appellant’s survivor
annuity .
¶5 The parties’ dispute centers on differing interpretations of regulations
promulgated to implement FERSA —5 C.F.R. § 846.304 (a)(1) and (2) in
particular , see 52 Fed. Reg. 19232 -33, 1923 7-38 (May 21, 1987) —which the
parties do not dispute appl y to the appellant’s election of FERS coverage in 1998 .
PFR File, Tab 1 at 8-9, Tab 3 at 7 -8. Subsection (a) (1) of 5 C.F.R. § 846.304
state s that t he basic annuity of an employee who elected FERS coverage “is an
amount equal to the sum of the accrued benefits under CSRS ” and “the accrued
4
benefits under FERS . . . .” Subsection (a)(2), meanwhile, states that t he
computation metho d described in subsection (a)(1) “is used in computing basic
annuities . . . survivor annuities . . . and the basic annuities for disability
retirement . . . .”
¶6 To reiterate, t he appellan t’s argument —with which the administrative judge
agreed —is that, just as 5 C.F.R. § 846.304 (a)(1) requires that his basic annuity be
computed with its CSRS and FERS components calculated under their respective
statutes , 5 C.F.R. § 846.304 (a)(2) requires that the survivor annuity based on his
service be computed with the portion accrued while he was covered by CSRS
calculated using the 55% rate for CSRS survivor annuities , and the portion
accrued while he was covered by FERS calculated using the 50% rate for FERS
survivor annuities . PFR File, Tab 3 at 4-5; ID at 9 . However, the appellant’s and
administrative judge’s interpretation of 5 C.F.R. § 846.304 (a) must fail because it
contradicts applicable provisions of FERSA.
¶7 Within § 302 of FERSA, which covers the effects of an election to become
subject to FERS, § 302(a) sta tes that “ [a]ll provisions” of the U.S. Code covering
FERS “ including those relating to . . . survivor benefits, and any reductions t o
provide for survivor benefits” shall apply to any individual who elects FERS
coverage , unless the FERS statutes are incon sistent with provisions articulated
elsewhere in § 302(a). One such provision under § 302(a) which restores the
applicability of the CSRS statutes is § 302(a)(3)(A)(i) , which provides that , if an
individual electing coverage under FERS becomes entitled to an annuity or dies
leaving a survivor entitled to benefits , the individual’s annuity “shall be eq ual to
the sum of the individual’ s accrued benefits under [CSRS] (as determined under
[§ 302 (a)(4)] ) and the individual’ s accrued benefits under [FERS] (as de termined
under [§ 302 (a)(5)] ).” Based on their similarity in language and effect, this is
clearly the statutory provision which 5 C.F.R. § 846.304 (a)(1) was promulgated
to implement .
5
¶8 Section 302(a)(4) of FERSA , in turn , states in relevant part that “ [a]ccrued
benefits under this paragraph shall be computed in accordance with applicable
provisions” of the U.S. Code coveri ng CSRS, “but without regard to” 5 U.S.C.
§ 8339 (j). Section 8339(j) (1) provides for a reduction in a CSRS annuity “in
order to provide a survivor annuity ” under 5 U.S.C. § 8341 (b) at 55% of the
decedent’s annuity. Thus, b ecause § 302(a)(4) of FERSA declar es the funding
mechanism in 5 U.S.C. § 8339 (j) for a CSRS survivor’s annuity inapplicable to
individuals electing FERS coverage , a surv ivor annuity based on the 55% rate
under 5 U.S.C. § 8341 (b) cannot be “provided ” for the appellant’s spouse.
¶9 It is not possible to read the described exclusion of 5 U.S.C. § 8339 (j) in
§ 302(a)(4) of FERSA as anything other than providing that, for CSRS -covered
individuals electing FERS coverage , CSRS survivor annu ities under 5 U.S.C.
§ 8341 (b)—including the 55% rate —are not available . If 5 U.S.C. § 8339 (j)(1) is
insufficiently descriptive as to the pu rpose of the annuity reduction it prescribe s,
5 U.S.C. § 8339 (j)(5)(A) and (B) sets forth the circumstances for the termination
of “[a]ny reduction in an annuity for the purpose of providing a survivor annuity”
for an annuitant’s current or former spouse, respectively. Thus, having found that
CSRS statutes covering the calculation of survivor annuities do not apply to
CSRS -covered individuals electing FERS coverage , we are left with the statement
in § 302(a) of FERSA —that FERS statutes rela ting to survivor benefits and
reductions t o provide for survivor benefits shall apply to such individuals .
Adopting th e appellant’s position that reductions to an annuity made “in order to
provide ” a CSRS survivor annuity should not be “conflated” with the 55% CSRS
survi vor annuity rate would ignore the interdependence that 5 U.S.C. § 8339 (j)
establishes between those elements, and afford his surviv or a windfall that, being
contrary to statute, we are without authority to permit. Office of Personnel
Management v. Richmond , 496 U.S. 414 , 416 (1990 ) (“[P] ayments of money from
the Federal Treasury are limited to those authorized by statute . . . .”) .
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 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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 deci sion in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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
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 inv olves a claim of discrimination based on
race, color, 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 securi ty. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request f or review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personnel practice describ ed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 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.
5 The original statutory provision that provided f or judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petition s for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 2 6, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
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 | SULLIVAN_JOHN_V_DC_0831_21_0314_I_1_FINAL_ORDER_2058230.pdf | 2023-08-10 | null | DC-0831 | NP |
2,808 | https://www.mspb.gov/decisions/nonprecedential/LEFEVRE_GEORGE_DA_0752_19_0286_I_1_FINAL_ORDER_2057692.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GEORGE LEFEVRE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-0752 -19-0286 -I-1
DATE: August 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert C. Seldon , Esq uire, Washington, D.C., for the appellant.
Ashley M. Ludovicy , and Everett F. Yates , Esquire, JBSA -Fort Sam
Houston, Texas, 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 action reducing the appellant ’s grade and pay by
involuntarily reassigning him from his position as a GS -0018 -14 Safety and
Occupational Health Manag er to a GS -0018 -13 Safety and Occupational Health
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
Manager . 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 erroneou s 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 in volved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Cod e of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 following facts are not materially in dispute. The appellant was
previously employed as a GS -13 Safety and Occupational Health Manager at the
agency ’s Medical Command (MEDCOM) headquarters Safety Management
Office. Initial Appeal File (IAF), Tab 11 at 46. On December 19, 2016, the
agency issued a vacancy announcement for a GS -14 Safety and Occupational
Health Manager position at MEDCOM headquarters, under competitive merit
promotion procedures. See IAF, Tab 9 at 50-53, 91. The merit promotion
certificate of eligibles for the position was issued on January 10, 2017 , and
included 17 eligible candidates, but did not include the appellant. Id. at 69 -73.
The merit promotion certificate expiration date was January 24, 2017. Id. at 70.
The appellant was not included on the certificate of elig ibles because his
self-assessment questionnaire score was below the cutoff score used to determine
which applicants were included on the certificate of eligibles list. Id. at 69; see
3
IAF, Tab 9 at 114; Hearing Transcript (HT) at 325 -27 (testimony of the
appellant) . A four -person selection panel was empaneled, and the candidates
from the certificate of eligibles list were scored and ranked, but no interviews
were conducted. IAF, Tab 9 at 75, 107. Another employee in the MEDCOM
headquarters Safety Management Office, DG, received the highest score among
the rated candidates and was informed by one of the selecting officials of the
intention to select him for the position. See id. at 82, 10 2, 107, 109 -11; HT
at 159 (testimony of DG). Nevertheless, the Request for Personnel Action tracker
for this vacancy announcement reflects that , on January 12, 2017, the certificate
was returned with “no selection ” made under the competitive merit promotion
certificate, and all of the candidates on the merit promotion certificate of eligible s
were eventually marked “NS,” or “not selected. ” IAF, Tab 9 at 92; see id.
at 70-74, 99.
¶3 On January 23, 2017, President Donal d Trump issued a Presidential
Memorandum directing agencies to implement a Federal civilian hiring freeze.
See Hiring Freeze , Memorandum for the Heads of Executive Departments and
Agencies , Memorandum No. 2017 -01842, 82 Fed. Reg. 8493 (Jan. 23 , 2017) .
Around this same time, after a number of interactions with DG that the panel
members described as “bullying ” and “unfavorable and unprofessional, ” the panel
members began to reconsider their intention to select DG for the position. IAF,
Tab 9 at 79, 82; HT at 266 (testimony of the selecting official); id. at 302-05
(testimony of selection panel member). On April 19, 2017, the selecting official
contacted an agency Human Resources (HR) specialist to inquire into alternative
options for filling the vacancy. Id. The selecting official noted that although he
had made a selection, the selectee had not yet been offered the position. Id.
Continuing, the selecting official stated that he wanted to “deselect that
individual and relook ” at the certificate of eligi bles list, or pick a “by name ”
Veterans Employment Opportunities Act of 1998 (VEOA) candidate, if possible.
Id.; see id. at 199 . That same day, another panel member contacted the same
4
HR specialist and stated that the panel wanted to extend a job offer f or the
position to the appellant as a “non-competitive appointment -30% Veteran, ” and
provided the HR specialist with a copy of the appellant ’s resume and his “Veteran
letter. ” IAF, Tab 9 at 41 -42. The email also noted that a waiver exempting the
position from the hiring freeze had been requested and was awaiting approval.
Id. at 42. On May 1, 2017, the Secretary of the Army granted the hiring freeze
exemption request. IAF, Tab 10 at 7 -15. On May 3, 2017, the agency offered the
position to the appellant, which he accepted, and was promoted effective May 15,
2017. IAF, Tab 11 at 45.
¶4 On June 23, 2017, DG filed a complaint with the agency ’s Office of the
Inspector General (OIG) alleging t hat the agency failed to follow MEDCOM
Regulation 690 -15 when it hired the appellant for the position, despite the fact
that the appellant was not on the certificate of eligibles list and was not ranked as
“best qualified ” among the rated candidates, and b ecause the selection decision
was not properly paneled. IAF, Tab 9 at 112 -13. After an investigation was
conducted into the complaint, a Report of Investigation (ROI) was produced and
forwarded to the MEDCOM Troop Commander with recommendations. See IAF,
Tab 8 at 84 -85; T ab 9 at 4 -128; Tab 10 at 4 -28.2 In an October 16, 2017
memorandum, the Troop Commander declined to adopt some of the agency’s OIG
findings and instead substitut ed some of the findings with his own. IAF, Tab 8
at 83. Specifically, the Troop Commander found that the MEDCOM Safety
Office engaged in the following prohibited personnel practices when it selected
the appellant for the position: (1) violating 5 U.S.C. §2302 (b)(12), wh ich
2 The agency’s OIG determined that although there was an appearance that the appellant
received an improper advantage in the hiring process, MEDCOM Safety leadership did
not engage in a prohibited personnel practice. IAF, Tab 8 at 84; Tab 9 at 4 -5. Further,
it concluded that the hiring process and decision used to select the appellant violated
the Merit Systems Principles and MEDCOM Regulation 690 -15 due to the “hiring of an
unqualified individual and lack of credite d plan.” IAF, Tab 9 at 7, 9.
5
prohibits taking or failing to take any personnel action that violates any law, rule,
or regulation implementing or directly concerning the merit systems principles,
by failing to follow two provisions of MEDCOM Regulation 690-15; and
(2) violating 5 U.S.C. § 2302 (b)(6), which prohibits granting any preference or
advantage not authorized by law, rule, or regulation to any employee or applicant
for employment for the purpose of improving or injur ing the prospects of any
particular person for employment, by the selecting official ’s use of improper
criteria for selecting the appellant for the position. Id. at 83. As a result of his
findings, the Troop Commander recommended that the investigation b e forwarded
to the Deputy Chief of Staff, Quality and Safety “for appropriate corrective
and/or disciplinary action. ” Id.
¶5 By a letter dated December 17, 2018, the agency proposed that the appellant
be reduced in grade and pay from the GS -14 Safety and O ccupation Health
Manager position to his previous GS -13 position with the same title, due to an
“erroneous promotion action that occurred due to a prohibited personnel
practice. ” Id. at 70 -75. The proposal noted that, as a result of the investigation
into the circumstances surrounding the appellant ’s promotion, it was determined
that the MEDCOM Safety Office “violated 5 U.S.C. § 2302 , and failed to follow
the provisions of MEDCOM Regulation 690 -15” by failing to panel the
appellant ’s hiring, and failing to use a crediting plan in determining the best
qualified candidates for the position to which the appellant had been hired. Id.
at 70. The proposal concluded by stating that the appellant ’s selec tion for the
position “was the result of a prohibited personnel practice, ” and that the action
was being proposed to promote the efficiency of the service. Id. at 71.
¶6 After considering the appellant ’s oral and written responses to the proposal,
see IAF, Tab 1 at 28 -67, by a letter dated March 26, 2019, the deciding official
sustained the action reducing the appellant ’s grade and pay, effective April 14,
2019, id. at 11 -27. The deciding official acknowledged that the appellant
received the promotion “through no fault of [his] own, ” but determined that his
6
selection was “erroneous and the result of a prohibited personnel practice, ” and
that allowing the appellant to remain in his position would be unfair to others
who were disadvantaged by the selecting of ficial ’s conduct. Id. at 11. The
decision letter also noted that the action was taken “solely to promote the
efficiency of the service. ” Id.
¶7 The appellant timely filed the instant appeal challenging the agency
decision reducing him in grade and pay. IA F, Tab 1. The appellant argued that
the deciding official erred in concluding that his selection was the product of a
prohibited personnel practice, or that it violated provisions of MEDCOM
regulation 690 -15. Id. at 6. The appellant also argued that the decision was
unsupported and did not promote the efficiency of the service, and that given the
agency ’s acknowledgement that he had no role in the alleged prohibited personnel
practice, the penalty was unreasonable and incompatible with the factors
identi fied by the Board in Douglas v. Veterans Administration , 5 M.S.P.R. 280 ,
305-06 (1981) . Id. In a subsequent filing, the appellant also argued that the
agency violated his due process right when the deciding official suggested that
the appellant did not possess the requisite qualifications for the GS -14 position,
without providing him advanced notice that his qua lifications would be a t issue.
IAF, Tab 29 at 10 -13; see IAF, Tab 18 at 13; Tab 24 at 4 .
¶8 After holding the appellant ’s requested hearing, IAF, Tab 28, the
administrative judge issued an initial decision reversing the agency action, IAF,
Tab 34, Initial Decision (ID) at 1, 14. In the initial decision, the administrative
judge made the following findings: (1) despite the agency ’s argument to the
contrary, the Board had jurisdiction over the appeal; (2) the deciding official did
not consider ex parte information in commenting on the appellant ’s
qualifications, so the agency met its minimum due process obligation in taking
the action against the appellant; and (3) the agency failed to meet its burden of
proving the charge by preponderant evidence, because it failed to show that th e
appellant ’s promotion violated MEDCOM Regulation 690.15, or that his
7
promotion was the result of a prohibited personnel practice under 5 U.S.C.
§ 2302 (b). ID at 5 -14. Because the administrative judge concluded that the
agency failed to meet its burden of proving the charge, he did not make any
findings concerning whether the agency action promoted the efficiency of the
service, or whether the penalty reducing the appellant ’s grade and pay was
reasonable.
¶9 The agency has timely filed a petition for review of the initial decision.
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,
Tabs 5, 8.
DISCUSSION OF ARGUME NTS ON REVIEW
¶10 On petition for review, the agency argues that the administrative judge
failed to properly interpret MEDCOM Regulation 690 -15 and did not give
adequate deference to the agency ’s interpretation of the regulation, and erred in
finding that the agency failed to prove that the appellant ’s promotion was the
result of a prohibited personnel practice under 5 U.S.C. § 2302 (b)(6). PFR File,
Tab 1 at 4 -25; Tab 8 at 5 -10. Regarding its claim that the administrative judge
failed to properly interpret MEDCOM Regulation 690 -15, the agency argues that
the administrative judge afforded too much weight to the testimony by the two
hiring panel members (who the agency alleges w ere biased) and an employee who
is not employed by MEDCOM regarding the correct interpretation of the
regulation, while improperly discounting a contrary interpretation that was
contained in the OIG report and offered by MEDCOM employees at the hearing.
PFR File, Tab 1 at 9-13. The agency also argues that the administrative judge
selectively applied canons of textual interpretation in reaching his decision, while
disregarding the reasonable alternative interpretation offered by the agency. Id.
at 13 -15.
8
¶11 Regarding the administrative judge ’s finding that the agency failed to
demonstrate that the appellant ’s promotion was the result of a prohibited
personnel practice in violation of 5 U.S.C. § 2302 (b)(6), the agency argues that it
met its burden for proving such a claim as described by the Board in Special
Counsel v. Byrd , 59 M.S.P.R. 561 (1993), aff’d, 39 F.3d 1196 (Fed. Cir. 1994)
(Table) . The agency also argues that the administrative judge failed to resolve
conflicting testimony on this issue, and failed to make sufficient credibility
determinations in accordance with t he Board ’s decision in Hillen v. Department
of the Army , 35 M.S.P.R. 453 , 458 (1987) , in reaching his determination.3 PFR
File, Tab 1 at 15-21.
We agree with the administrative judge ’s finding that the agency failed to prove
that the appellant ’s promotion violated provisions of MEDCOM Regulation
690-15.
¶12 In the initial decision, the administrative judge concluded that the agency
failed to demonstrate that the appellant ’s promotion to the GS -14 position
violated paragraphs 7a(6)(b) and 7a(6)(c) of MEDCOM Regulation 690 -15.4 ID
at 9-12. MEDCOM Regulation 690 -15 is titled “Safety Career Program
3 The agency has not challenged the administrative judge’s finding that the Board has
jurisdiction over this appeal, and the appellant has not challenged the finding that the
deciding official did not violate the appellant’s minimum due process right when h e
commented on the appellant’s apparent lack of qualifications for the GS -14 position.
See ID at 5 -8. Accordingly, we have not addressed either argument here.
4 In the initial decision, the administrative judge rejected the agency’s argument, raised
for the first time in its written closing brief, that the appellant’s promotion violated a
separate provision of MEDCOM Regulation 690 -15, ¶ 7a(5), mandating that positions
be announced “Army -wide and [] remain open at least 14 days.” ID at 12 n.8; see IAF,
Tab 17 at 47; Tab 30 at 7. The administrative judge determined that, because this
allegation was not contained in the proposal or decision letter, sustaining the agency
action on this basis would violate the appellant’s due process right to notice and an
opportunity to respond to the charges against him. ID at 12 n.8; see Cleveland Board of
Education v. Loudermill , 470 U.S. 532 , 546 (1985) (holding that tenured public
employee s have a constitutional right to minimum due process of law, i.e., prior notice
and an opportunity to respond) . The agency has not challenged this finding on review
and we see no reason to disturb it.
9
Management, ” and the purpose of the regulation is to provide guidance on
training requirements, minimum qualifications, and the applicable knowledge,
skills, and abilities for staffing positions in the GS -0018 Safety and Occupational
Health Manager/Specialist position series. IAF, Tab 17 at 45. The specific
provisions the agency alleged the appellant ’s promotion violated are identified as
follows:
7. Procedures . For hiring/filling job series 0018 vacancies —
The occupational series 0018 (Safety and Occupational Health) is
designated as an Army mission critical occupation (MCO). Hiring
actions will be initiated with a MEDCOM Safety approved position
description within 30 days of vacancy.
a. [Safety Career Program 12 (CP-12)] placement and promotion.
* * *
(6) Recruitment. All positions GS -05 through GS -12 (except
interns) will be filled through registrants in the appropriate DA
centralized referral inventory or local merit procedures (see
AR 690 -950, chapter 2).
* * *
(b) All safety positions will be paneled by the HQ
MED COM Safety Management Office.
(c) The MEDCOM Safety Office will develop a crediting
plan to be used in determining a list of “best qualified ”
from the list submitted by the CPAC. Once the “best
qualified ” list is developed with candidates, the hiring
authority may interview but must select from the “best
qualified ” list.
Id. at 46 -47.
¶13 In the decision reducing the appellant ’s grade and pay, the agency
concluded that the hiring panel members violated paragraphs 7a(6)(b) and
7a(6)(c) when they promoted th e appellant using a non -competitive 30% or more
disabled veteran hiring authority (5 U.S.C. § 3112 ; 5 C.F.R. §§ 315. 707,
316.402(b)(4)) , without paneling the decision pursuant to paragraph 7a(6)(b), and
without using a crediting plan or selecting the appellant off of the “best qualified ”
10
list pursuant to par agraph 7a(6)(c). IAF, Tab 1 at 18-21. The failure to comply
with the requirements identified in paragraphs 7a(6)(b) and 7a(6)(c) and to
instead select the appellant “by name ” from the non -competitive 30%+ disabled
veteran certificate, the agency reasoned, resulted in the appellant ’s im proper
selection for the GS -14 position, and consequently, a violation of 5 U.S.C.
§ 2302 (b)(12). Id. at 18.
¶14 In challenging the agency ’s claim that his promotion violated these
provisions, the a ppellant argued that the language in paragraphs 7a(6)( b) and
7a(6)( c) only applied to positions rated GS -05 through GS -12, and did not apply
to the GS -14 position to which the appellant was promoted. IAF, Tab 29 at 6-7.
In the initial decision, the admin istrative judge determined that the agency failed
to prove that the appellant ’s promotion violated these provisions, agreeing with
the appellant ’s argument that the regulatory language applied only to GS -05
through GS -12 positions, and not to the GS -14 pos ition to which the appellant
was promoted. ID at 10 -12. In reaching this determination, the administrative
judge relied on the testimony of the senior safety advisor who had experience
with the drafting and promulgation of the regulation, and testimony f rom the
deciding official for the reassignment action. ID at 10 -11 (citing IAF, Tab 28,
Hearing Compact Disc (HCD) (testimony of the senior safety advisor); id.
(testimony of the deciding official)); see HT at 86 -87 (testimony of the deciding
official), 2 36-39 (testimony of the senior safety advisor); see also HT at 280 -81
(testimony of the selecting official).
¶15 The administrative judge also relied on his reading of the regulation “as a
whole, ” applying canons of textual interpretation to conclude that th e
interpretation offered by the appellant and senior safety advisor was the most
reasonable. ID at 10 -11. Specifically, the administrative judge noted that the
language contained in the “Recruitment ” heading of paragraph 7a(6) identified
“[a]ll positions GS -05 through GS -12,” and so it was reasonable to conclude that
the nested subparagraphs below paragraph 7a(6) al so applied to “all positions
11
GS-05 through GS -12.” ID at 10 (citing ANTONIN SCALIA & BRYAN A. GARNER ,
READING LAW: THE INTERPRETATI ON OF LEGAL TEXTS 184 (2012) (“The title and
headings are permissible indicators of meaning. ”)).
¶16 On review, the agency restates its argument that, despite the reference to
GS-5 through GS -12 positions in the paragraph 7a(6) heading, the language in
parag raph 7a(6)(b) identifies “all safety positions, ” and so that provision should
apply to all positions in the GS -0018 position series, including the GS -14 position
the appellant was promoted to, without regard to the grade of the position. PFR
File, Tab 1 a t 13-14; Tab 8 at 5 -8. The agency argues that the clear intent of the
regulation was to provide guidance on hiring actions for all positions in the
GS-0018 job series, and so a reasonable interpretation of the regulation would not
limit application of par agraphs 7a(6)(b) and 7a(6)(c) only to hiring actions for
GS-5 through GS -12 positions. PFR File, Tab 1 at 14 -15.
¶17 We agree with the administrative judge ’s finding in this regard.
Fundamental rules of statutory and regulatory construction dictate that a
regulation or statute should be construed “so as to avoid rendering s uperfluous ”
any of its language, and a statute or regulation ’s caption or heading can be “a
useful aid in resolving ” potential ambiguity in the accompanying text. FTC v.
Mandel Brothers, Inc., 359 U.S. 385 , 388 –389 (1959) ; Astoria Federal Savings
and Loan Association v. Solimino , 501 U.S. 104 , 112 (1991) . Additionally, titles
and section headings “‘are tools available for the resolution of a doubt about the
meaning of a statute. ’” Porter v. Nussle , 534 U.S. 516 , 528 (2002); see also
NORMAN J. SINGER , 2A SUTHERLAND STATUTORY CONSTRUCTION § 47:14 (7th
ed. 2007) (noting that “the headings may serve as an aid ” in determining the
legislative intent of an enacted statute ). Here, the language in paragraph 7a(6)
clearly identifies that the language in the paragraph of that heading applies to
“[a]ll positions GS -05 through GS -12 (except interns). ” IAF, Tab 17 at 46. By
extension , the lettered subparagraphs (a) through (f) nested under paragraph 7a(6)
12
would be constrained by that same language in the paragraph 7a(6) heading. See
id. at 46 -48.
¶18 This conclusion is also consistent with the testimony provided by the senior
safety advisor who reviewed the regulation when it was drafted , as well as a
number of the other agency witnesses . See HT at 86 -87 (testimony of the
deciding official); id. at 235 -39 (testimony of the senior safety advisor); id.
at 280-81 (testimony of the selecti ng official) . Although the agency points t o
other officials who offered a possible alternative interpretation of the regulation,
the administrative judge made reasoned credibility determinations in relying on
the testimony of the senior safety advisor, which we credit. ID at 10 -11 (citing
Hillen , 35 M.S.P.R. 453 , 458 (1987)) ; see Haebe v. Department of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002) ( noting that the Board must give deference
to an administrative judge ’s credibility determinations when they are based,
explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound ” reasons for doing so .); Vicente v. Department of the
Army , 87 M.S.P.R. 80 , ¶ 7 (2000) (stating that where there is conflicting
testimony such that it is impossible to believe the testimony of both witnesses, an
administrative judge must ma ke credibility determinations to properly resolve the
issue ). Accordingly, we discern no reason to disturb this finding on review. See
Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 9 (2016) (finding no reason
to disturb the administrative judge ’s findings where the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusion s); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997)
(same).
13
We agree with the administrative judge ’s finding that the agency failed to
establish that the appellant ’s promotion was the result of a prohibited personnel
practice under 5 U.S.C. § 2302 (b).
¶19 The agency also argues that the administrative judge erred in c oncluding
that it failed to prove that the appellant ’s promotion violated 5 U.S.C.
§ 2302 (b)(6), which prohibits the grant ing of “any preference or advantage not
authorized by law, rule, or regulat ion to any employee or applicant for
employment (including defining the scope or manner of competition or the
requirements for any position) for the purpose of improving or injuring the
prospects of any p articular person for employment. ” PFR File, Tab 1 a t 15-21;
Tab 8 at 8; see ID at 12 -14. Specifically, the agency argues that the
administrative judge identified the correct standard for proving a violation under
section 2302(b)(6), identified by the Board in Byrd , 59 M.S.P.R. 561 , but
incorrectly applied the standard in finding no violation. PFR File, Tab 1 at 15 -17.
¶20 In the initial decision, the administrative judge stated that to find a violation
of 5 U.S.C. § 2302 (b)(6), the Board ’s decision in Byrd required that the agency
prove the following: (1) that the relevant management official had authority to
take a personne l action; (2) the official granted a preference or advantage not
authorized by law, rule, or regulation; and (3) the official granted the preference
to a particular individual with the purpose of improving his or her prospects for
employment. ID at 12 (ci ting Byrd , 59 M.S.P.R. at 570). The administrative
judge concluded that absent evidence of intentional conduct undertaken by the
official for an improper purpose, there is no violation of section 2302(b)(6). ID
at 12.
¶21 In concluding that the agency failed to meet its requisite burden, the
administrative judge relied on the testimony from an HR specialist stating that the
selecting official ’s request to abandon the merit promotion certificate in favor of
selecting the appellant “by name ” using the disabled veteran hiring authority at
5 U.S.C. § 3112 was a “routine personnel action ” that did not require further
14
approval, suggesting that there was nothing out of the ordinary about the selecting
official ’s request and decision. ID at 13; see IAF, Tab 23 at 30. The
administrative judge also cited the testimony from two of the selection p anel
members, the senior safety advisor, and the HR specialist stating that the
appellant had the qualifications and temperament to complete the duties of the
GS-14 position. ID at 13; see HT at 240 -41 (testimony of senior safety advisor);
id. at 302 -03 ( testimony of panel selecting official); HT at 323 -24, 335 -37
(testimony of another panel member); IAF, Tab 23 at 43 (deposition testimony of
HR s pecialist). Finally, the administrative judge acknowledged the testimony
from one of the employees who was not selected for the position, stating that he
was told by the selecting official that the appellant was selected because the
selecting official was “just simply taking care of his people, ” during a telephone
conversation. ID at 12 -13; HT at 114-15 (testimon y of non -selected applicant).
¶22 Because the decision to switch from the merit promotion list to the disabled
veteran hiring authority was routine, and because the relevant agency officials
determined that the appellant was qualified for the position, the a dministrative
judge reasoned, there was no improper purpose in the decision by the selecting
panel members to hire the appellant “by name ” using the disabled veteran hiring
authority. ID at 12 -14. Addressing the testimony that the selecting official was
taking care of “his people ” by selecting the appellant, the administrative judge
noted that the selecting official denied making that statement at the hearing, and
concluded that even if the selecting official did make the statement, the
administrative jud ge interpreted the statement as referring to a preference for
hiring an employee that was “familiar with the agency ’s operations, ” including
both the appellant and DG, and that such a preference was not impermissible. ID
at 13; see HT at 279 (testimony of selecting official).
¶23 On review, the agency restates its argument that it proved that the selecting
official granted the appellant a preference or advantage that was not authorized
by law, rule, or regulation, that he did so with the intent to provide the appellant
15
with preferential treatment, and that he did, in fact, ultimately provide the
appellant with preferential treatment. PFR File, Tab 1 at 15 -21. The agency
notes that the appellant was ultimately selected for the position even though he
did not m ake the competitive certificate of eligibles list, which disadvantaged the
16 other applicants on the list, including the top ranked candidate, DG, and cites
the Board decision in Avery v. Office of Personnel Management , 94 M.S.P.R. 212
(2003) to support its argument that the appellant ’s prospects were improved to the
detriment of the 17 other applican ts. Id. at 16 -17.
¶24 The agency also cites Special Counsel v. Lee , 114 M.S.P.R. 57 (2010) for
the proposition that a viol ation of section 2302(b)(6) still occurs where a hiring
authority that would be valid under other circumstances is used in invalid matter,
which it argues occurred here. Id. at 17. To support its argument that the
selecting official intended to provide a n advantage to the appellant, the agency
points to the actions by the selecting official deselecting DG, requesting another
authorized way to select the appellant, and selecting the appellant “by name ”
without reviewing the rest of the eligible candidates on the 30% or more disabled
veteran referral list, and without re -announcing the position. Id. The agency also
points to the testimony by a non -selected candidate stating that he was “just
simply taking care of his people ” as additional evidence of the s electing official ’s
intent to advantage the appellant. Id. at 18. Further, the agency argues that the
administrative judge failed to make necessary credibility findings regarding the
conflict between the testimony of the non -selected candidate stating th at the
selecting official told him he was taking care of “his people ” and the selecting
official ’s testimony denying making the statement. Id. at 18 -19. Finally, the
agency argues that the administrative judge failed to acknowledge the clear bias
by the senior safety advisor, the selecting official, and the selecting panel member
in making his credibility determinations. Id. at 18 -21; PFR File, Tab 8 at 6-7.
¶25 Regarding the agency ’s argument that, pursuant to Byrd , Avery , and
progeny, it proved that the other applicants were disadvantaged and the appellant
16
was advantaged by the selecting official ’s actions, we agree with the
administrative judge ’s conclusion that the agency failed to demonstrate that the
selecting officia l’s decision to hire the appellant “by name, ” using the 30%+
disabled veteran hiring authority of 5 U.S.C. § 3112 , in lieu of the competitive
merit promotion certificate, was undertaken with an imp roper purpose. See ID
at 13-14. As an initial matter, Special Counsel v. Lee , one of the cases cited by
the agency to support its argument, was reversed in part by the U.S. Court of
Appeals for the Federal Circuit in a subsequent decision.5 Beatrez v. M erit
Systems Protection Board , 413 F. Appx. 298 (2011); see Pitsker v. Office of
Personnel Management , 89 M.S.P.R. 252 , ¶ 4 (2001) (finding it well settled that
decisions of the Federal Circuit constitute precedent that is binding on the Board) .
¶26 Additionally, Byrd and Avery are distinguishable. Avery merely stands for
the proposition that the granting of additional points for pref erence -eligible
veterans during a competitive hiring process does not constitute a prohibited
personnel practice under 5 U.S.C. § 2302 (b)(6), an issue that is not relevant in
this case. Avery , 94 M.S.P.R. 212 , ¶ 6. Further, as the administrative judge
correctly concluded, Byrd is inapposite and distinguishable on its facts. See ID
5 In Beatrez , the Federal Circuit reversed the Board d ecision reversing the
administrative judge’s finding that an HR specialist violated section 2302(b)(6) by
intentionally assisting in the granting of an illegal preference for another employee. Id.
at 298, 304. In the Board’s decision, it declined to defer to the administrative judge’s
credibility findings concluding that Beatrez did not intend to violate section 2302(b)(6)
by granting an illegal preference, and instead substituted its own credibility
determina tions to establish the requisite intent. Id. at 304 -05. The Federal Circuit
reversed the Board on appeal, concluding that the Board’s reason for substituting its
own credibility determinations were not sufficiently sound to overturn the
administrative ju dge’s finding that Beatrez lacked the requisite intent, concluding that
much of the evidence the Board relied on had no bearing on Beatrez’s intent and that
the remaining evidence in the record was at least as consistent with Beatrez having an
innocent int ent as it was with her having a guilty one. Id. at 306. Indeed, the Federal
Circuit ’s decision in Beatrez , overturning the Board and deferring to the administrative
judge ’s credibility -based finding that there was insufficient evidence of improper intent ,
is consistent with our conclusion here.
17
at 14 n.11. In Byrd , the Office of Special Counsel (OSC) brought a disciplinary
action against the management officials in that case, charging them with
violati ng, inter alia , 5 U.S.C. § 2302 (b)(6) and (b)(11) ,6 based on the officials ’
unauthorized actions directed at hiring a favore d candidate due to her “political
connections ” to White House officials. Byrd , 59 M.S.P.R. at 563, 572. The
actions taken by the management officials in Byrd to ensure the candidate ’s
selection included the following: pre-selecting the candidate for the position
before the merit promotion certificate had even closed; unlawfully using an
unauthorized temporary hiring authority without seek ing necessary approva l from
the Office of Personnel Management and, even though the hiring authority
significantly reduced the size of the applicant pool , increasing the grade level,
reducing the geographical area, and reducing the number of days the vacancy
announcement remained open in order to further restrict the applicant pool;
declining to interview any candidates for the position; unlawfully failing to
consider the application of a 30% disabled veteran; and failing to consider the
other eligible candidates on the temporary certificate, even though one of the
candidates was arguably more qualified than the selectee. Id. at 565-69, 571,
577. The Board ultimately concluded that w ithout the “extraordinary actions ”
taken by the responsible agency officials, the selectee “could not even have been
considered for the position ,” and that the clear purpose, as stated by the
responsible agency officials, was to place the selectee on the agency ’s
employment rolls “by a certain date. ” Id. at 569.
¶27 In this case, by contrast, 5 U.S.C. § 3312 , the hiring procedure the agency
used to select the appellant for this position , was lawful and authorized by HR
officials; the decision to switch hiring authorities was “routine ”; the selecting
6 The language of 5 U.S.C. § 2302 (b)(11) that was in effect when Byrd was issued is
identical to the current version of 5 U.S.C. §2302 (b)(12). Compare 5 U.S.C.
§2302 (b)(12), with Byrd , 59 M.S.P.R. at 579. The statute was subsequently amended
and the sections were renumbered.
18
officials sought, and received, explicit authority to use the alternative hiring
procedure from a knowledgeable HR specialist; the selecting officials only
decided to switch hiring authorities after they encountered issues with the
candidate they originally intended to select; the appellant was regarded as
qualified for the position by all of the agency officials who testified; a nd the
identified reasons for selecting the appellant —because he had the correct
qualifications, fit, and discipline for the job —were not improper. See ID
at 13-14; IAF, Tab 9 at 79, 82; Tab 23 at 30 -31 (deposition testimony of HR
specialist ); HT at 136, 231-32 (testimony of the senior safety advisor); id.
at 267-69, 274, 289 -90 (testimony of the selecting official); id. at 307 -09
(testimony of selection panel member) ; see also 5 C.F.R. § 335.103 (b)(4) (stating
that under merit promotion plans, agency selection procedures “will provide for
management ’s right to select from other appropriate sources, such as
reemployment priority lists, reinstatement, transfer, handicapped, or Veteran
Recru itment Act eligibles . . .”) (emphasis added) . Although the agency attempts
to analogize the selecting official ’s stated purpose of taking care of “his people ”
to the improper purpose identified by the Board in Byrd , the comparison falls
short . See PFR Fi le, Tab 1 at 19. As the administrative judge noted, the selecting
official ’s preference for an employee within the MEDCOM Safety Office, with
whom he would have been familiar and best able to assess prior performance and
abilities, does not compare to the impermissible purpose identified in Byrd of
pre-selecting a candidate who offered little more than “political connections ” to
the White House. See ID at 13-14; Byrd , 59 M.S.P.R. at 572. The sheer breadth
and degree to which the responsible agency offici als in Byrd took action to ensure
the selectee ’s selection for the position, despite her clearly inadequate
qualifications, does not offer a meaningful comparison to the facts at issue in this
appeal.
¶28 Finally, regarding the agency ’s specific challenges t o the administrative
judge ’s credibility determinations, we see no reason to disturb those findings.
19
Although we agree with the agency that the administrative judge did not make
specific credibility findings resolving the dispute between the non -selected
candidate and the selecting official concerning whether or not the selecting
official stated that he was “just simply taking care of his people, ” the
administrative judge also concluded that even if the selecting official made such a
statement, it was insufficient to establish an improper purpose, with which we
ultimately agree. See ID at 13-14. Regarding the agency ’s assertion that the
administr ative judge failed to address the senior safety advisor ’s specific bias
toward the MEDCOM Safety program, the administrative judge did consider
whether she generally had any bias and concluded that she did not. ID at 10
(citing Hillen , 35 M.S.P.R. at 458). Regarding its argument that the
administrative judge failed to make specific credibility findings concerning the
potential biases of the selecting official and selection panel member even though
he found that DG ’s testimony was biased, a n administrative judge ’s failure to
discuss each Hillen factor does not mean that he did not consider each factor.
Stein v. U.S. Postal Service , 57 M.S.P .R. 434 , 440 (1993). We have considered
the agency ’s claim that these witnesses were biased against DG and so their
testimony should not be credited, but conclude that a different outcome is not
warranted . PFR File, Tab 1 at 18 -20. The testimony these w itnesses offered was
consistent with the testimony offered by the other witnesses, and was consistent
with the documentary record as a whole, as outlined above.7 For the foregoing
7 As the agen cy notes in its petition for review, there is a discrepancy concerning
whether the applicants for the merit promotion certificate of eligibles were de -selected
on January 12, 2017, as reflected on the Request for Personnel Action tracker, the
auditing stat ement, and the testimony of the HR specialist, or in April 2017, as reflected
in the selecting official’s testimony. Petition for Review (PFR) File, Tab 1 at 20; see
IAF, Tab 9 at 74, 92; Tab 23 at 22 -23; HT at 268-69; ID at 3. However, we conclude
that this apparent discrepancy is immaterial to the outcome of this appeal, because the
timing of the de -selection decision has no bearing on our determination that the
appellant’s promotion was not the result of a prohibited personnel practice, because the
20
reasons, we deny the petition for review and affirm the initial decision, r eversing
the agency action reducing the appellant ’s grade and pay.
ORDER
¶29 We ORDER the agency to cancel the action reducing the appellant ’s grade
and pay, and to restore him to the Safety and Occupational Health Manager,
GS-0018 -14 position, effective May 26, 2019. See Kerr v. National Endowment
for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this
action no later than 20 days after the date of this decision.
¶30 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 informatio n 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.
¶31 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, shou ld ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶32 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board ’s Order, the appel lant 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
selecting official’s reasons for selecting the appellant for the position were not
impermissible.
21
should contain specific reasons why the appellant be lieves 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).
¶33 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 re sulting 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 costs. To be paid, you must meet the r equirements 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 1201.20 3. 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 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
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.
22
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefu lly each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit you r petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
23
If you are interested in securing pro bono repres entation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit . The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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. 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 may request review by the 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
24
EEOC’s Office of Federal Operations within 30 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
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.9 The court of appeals must receive your pe tition for
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
25
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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.
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows 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.
26
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
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 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).
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 c lear 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. | LEFEVRE_GEORGE_DA_0752_19_0286_I_1_FINAL_ORDER_2057692.pdf | 2023-08-09 | null | DA-0752 | NP |
2,809 | https://www.mspb.gov/decisions/nonprecedential/DUONG_MAY_PH_1221_18_0047_W_1_FINAL_ORDER_2057731.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MAY DUONG,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
PH-1221 -18-0047 -W-1
DATE: August 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
May Duong , Philadelphia, Pennsylvania, pro se.
Ariya McGrew , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her individual right of action (IRA) appeal
regarding her 5 -day suspension .2 On petition f or review, the appellant argues that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requir ed to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 The appellant filed an earlier adverse action appeal of her 5 -day suspension, which we
dismissed for lack of jurisdiction in a separate Final Order. Duong v. Department of the
Treasury , MSPB Dock et No. PH -752S -17-0143 -I-1, Final Order ( June 22 , 2023).
2
she exhausted her administrative remedies with the Office of Spe cial Counsel
(OSC) and made protected whistleblowing disclosures . Petition f or Review
(PFR) File, Tab 1 at 5 -16. 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 invo lved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under s ection 1201.115 for granting the petition for review.3
Therefore, we DENY the petition for review . Except as expressly MODIFIED to
supplement the administrative judge’s analysis that the appellant failed to make a
nonfrivolous allegation of a protected d isclosure , we AFFIRM the initial
decision .4
¶2 On review, the appellant does not provide any supporting detail s about her
disclosure of the “bedbug bite issue” to the Equal Employment Opportunity
Commission, her union, or in her workers’ compensat ion claim. PFR File, Tab 1
3 The appellant provided over 200 pages of documents with her petition for review.
PFR File, Tab 1 at 17 -226. We have not considered these documents on review as all of
them were in the record below, in the record of her prior Board appeal regarding her
5-day suspension , available to her prior to the close of record, and /or are not material to
the dispositive issue of the Board’s jurisdiction over this IRA appeal. See Russo v.
Veterans Administ ration , 3 M.S.P.R. 345 , 349 (1980); Meier v. Department of the
Interior , 3 M.S.P.R. 247 , 256 (1980 ); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 ,
214 (1980); 5 C.F.R. § 1201.115 (d).
4 We have reviewed the relevant legislation amending the whistleblower protection
statutory scheme enacted during the pendency of this appeal and have concluded that it
does not affect th e outcome of the appeal.
3
at 8; Initia l Appeal File (IAF) , Tab 1 at 11 -12, Tab 5 at 2, 4, 7, 17, 20 , 38-39, 48 .
The administrative judge appears to have construed the appellant’s disclosure as
relating to the agency ’s denial of her eligibility for workers’ compens ation
benefits after allegedly suffering a bed bug bite, but there is nothing in the record
to suggest that the appellant presented this disclosure in her OSC complaint . IAF,
Tab 9, Initial Decision (ID) at 7 -8 (citing IAF, Tab 5 at 2 ). Nevertheless , even
assuming that such a disclosure was exhausted before OSC, see Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011), we agree with
the administrative judge’s ultimate finding that the appellant failed to make a
nonfrivolous allegation of a protected whistleblowing disclosure, ID at 7-9. We
modify the initial decision to supplement the adm inistrative judge’ s analysis to
find that the appellant’s vague and conclusory assertions about bed bugs or bed
bug bites are insufficient to esta blish IRA appeal jurisdiction . See El v.
Department of Commerce , 123 M.S.P.R. 76, ¶¶ 7-8 (2015) , aff’d , 663 F. App’x
921 (Fed. Cir. 2016) ; Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363,
¶ 21 (2005) (requiring an appellant to provide more than vague and conclusory
allegations of wrongdoing by agenc y officials). The appellant identifies nothing
on review that would help to explain her disclosure s or otherwise indicate a
reasonable belief that she disclosed information of the kind protected by 5 U.S.C.
§ 2302 (b)(8).
¶3 The appellant’s other arguments on review —including alleged factual errors
in the agency’ s motion to dismiss , the administrative judge’s allegedly erroneous
finding that no record evidence demonstrated any actual bed bug bite injury, and
the merits of her 5 -day suspension —do not provide any basis to disturb the initial
decision because they do not relate to the dispositive issue of the Board’s
jurisdiction. See, e.g. , PFR File, Tab 1 at 7, 11 ; see also Sapla v. Department of
the Navy , 118 M.S.P.R. 551, ¶ 7 (2012) (finding that the appellant’s arguments on
review regarding the merits of the agency ’s action were not relevant to whether
the Board had jurisdiction over her appeal). To the extent that the appellant
4
belatedly asserts that the agency committed harmful error by issuing the 5 -day
suspension in August 2016 , PFR File, Tab 1 at 14 , the Board m ay not consider
such a claim in the context of an IRA appeal, Salerno v. Department of the
Interior , 123 M.S.P.R. 230, ¶ 15 (2016) .5
NOTICE OF APPEAL RIG HTS6
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 a nd
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
5 As to the appellant’s putative claim of reprisal for filing a grievance, the
administrative judge appears to have relied on the agency's evidence in finding that the
appellant did not clea rly show she filed a grievance. ID at 8. After the issuance of the
initial decision, the U.S. Court of Appeals for the Federal Circuit clarified that the
Board may not deny jurisdiction in an IRA appeal by crediting the agency’s
interpretation of the evidence as to whether the appellant nonfriv olously alleged a
protected disclosure or activity. Hessami v. Merit Systems Protection Board , 979 F.3d
1362 , 1368 -69 (Fed. Cir. 2020). Howeve r, the administrative judge alternatively found
that, even if the appellant had filed a grievance, she did not nonfrivolously allege that
such activity was protecte d under 5 U.S.C. § 2302 (b)(9)(A)( i). ID at 8; see Young v.
Merit Systems Protection Board , 961 F.3d 1323 , 1329 (Fed. Cir. 2020). Accordingly,
any error in the administrative judge’ s initial finding was harmless. Panter v.
Department of the Air Force , 22 M.S.P.R. 28 1, 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).
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.
5
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to dec ide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is ap pealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriat e U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this de cision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a d isabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district co urts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may requ est review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 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.
Contact information for the courts of appeals can be 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 | DUONG_MAY_PH_1221_18_0047_W_1_FINAL_ORDER_2057731.pdf | 2023-08-09 | null | PH-1221 | NP |
2,810 | https://www.mspb.gov/decisions/nonprecedential/HAYES_JENNIFER_DC_0752_21_0532_I_1_FINAL_ORDER_2057759.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JENNIFER HAYES,
Appellant,
v.
SELECTIVE SERVICE SY STEM,
Agency.
DOCKET NUMBER
DC-0752 -21-0532 -I-1
DATE: August 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer D. Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Christopher J. Keeven , Esquire, and Conor D. Dirks , 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
sustained the appellant’s removal. On petition for review, the appellant raises
new arguments concerning discovery and the merits of her appeal and states that
she waived her hearing request because she could no longer afford to pay her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
attorney. 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 pe titioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the appellant’s new arguments on review and to correct harmless error
concerning the analysis of the appellant’s affirmative defenses , we AFFIRM the
initial decision.
¶2 The appellant argued below and on review that she was removed due to her
race and sex because unidentified agency executives (who were all white and all
male except for one) had also been through audits that identified problems, but
they were permitted to correct errors , whereas the appellant was removed. Initial
Appeal File (IAF), Tab 22 at 27 ; Petition for Review (PFR) File , Tab 1 at 5 , 13.
The administr ative judge found that the appellant failed to prove that the removal
was based on prohibited considerations. IAF, Tab 23, Initial Decision (ID)
at 12-13. The Board recently clarified that t he methods by which an appellant
may prove a claim of discrimina tion under Title VI I are: (1) direct evidence;
(2) circumstantial evidence, which may include (a) evidence of “suspicious
timing, ambiguous statements oral or written, behavior toward or comments
directed at other employees in the protected group, and other bits and pieces from
which an inference of discriminatory intent might be drawn, ” also known as
3
“convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether
or not rigorously statistical, that employees similarly situated to the plaintiff
other than in the characteristic . . . on which an employer is forbidden to bas e a
difference in treatment received systematically better treatment”; (c) evidence
that the agency ’s stated reason for its action is “unworthy of belief, a mere
pretext for discrimination” (i.e., the burden -shifting standard under McDonnell
Douglas Corp oration v. Green , 411 U.S. 792 , 802 -04 (1973)); and (3) some
combination of direct and indirect evidence. Pridgen v. Office of Management
and Budget , 2022 MSPB 31 , ¶ 24 (citations omitted) . This clarification of the
legal standard does not change the result in this case because the administrative
judg e correctly determined that the appellant failed to proffer any comparator
evidence or motive evidence, and therefore , she failed to establish that the
removal was motivated by prohibited discrimination . ID at 13. Therefore, we
agree with the administrative judge ’s conclusion that the appellant has failed to
meet her burden to establish this affirmative defense.
¶3 The appellant alleged below that the deciding official violated her due
process rights when he considered the following charges from t he agency’s table
of penalties in determining that removal was appropriate: falsification, disregard
of directive, intentional failure to observe a written order, and car eless or
negligent failure to observe a written regulation. IAF, Tab 22 at 28 -29. The
administrative judge found that although the charges were not identical , the
information in the proposal notice alerted the appellant to facts suggesting her
underlying conduct could fall within these categories and the appellant was
notified and respon ded to the allegations underlying the charges . ID at 14-15.
The administrative judge’s brief analysis of this issue did not sufficiently
describe why the appellant’s argument fails. However, for the reasons discussed
below, that error was harmless.
¶4 In Jenkins v. Environmental Protection Agency , the Board reversed the
appellant’s removal on due process grounds because the deciding official relied
4
on a recommendation in the table of penalties for an offense with which the
appellant was not actually charg ed. 118 M.S.P.R. 161 , ¶¶ 9-12 (2012). The
instant appeal is similar to Jenkins to the extent that the deciding official
considered a recommendation in the table of penalties of which the appellant was
not on notice. This amounted to an ex parte communication. See id. , ¶¶ 10-12.
¶5 However, not every ex parte communication is a proc edural defect so
substantial and so likely to cause prejudice that it undermines the due process
guarantees and entitles the claimant to an entirely new administrative proceeding;
rather, only ex parte communications that introduce new and material informa tion
to the deciding official will violate the due process guarantee of notice. Stone v.
Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1376 -77 (Fed. Cir.
1999). The Board will consider the following factors, among others, to determine
whether an ex parte contact is constitutionally impermissible: (1) whether the ex
parte communication merely introduces “cumulative” information or new
information; (2) whether the empl oyee 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. Jenkins , 118 M.S.P.R. 161 , ¶ 11.
¶6 Here, we find that the information at issue was cumulative of that presented
to the appellant in the notice of proposed removal. The propos ed notice
identified the charges as poor judgment, lack of candor, and negligent
performance of duties for conduct the proposing official said was “cause for great
concern” and for which only removal would promote the efficiency of the service.
IAF, Tab 1 2 at 52 -54. As the administrative judge reasoned, misrepresentation is
an element of lack of candor , and the table of penalties listed the penalty for
falsification or misrepresentation. ID at 14; IAF, Tab 12 at 103. The
recommended range of penalties for a first offense of
“falsification/misrepresentation” is also writ ten reprimand to removal. IAF,
Tab 12 at 103. Thus, the deciding official’s error did not alter the range of
5
penalties that the appellant already knew that she was facing. Id.; see Bla nk v.
Department of the Army , 247 F.3d 1225 , 1229 -30 (Fed. Cir. 2001) (finding that a
deciding official did not violate an employee’s right to due process by conducting
interv iews “merely to confirm and clarify information that was already contained
in the record.”). Moreover , the notice itself reflected that the agency viewed the
appellant as concealing material facts. Compare , IAF, Tab 12 at 55-56
(indicating, in pertinent part, that the appellant made misrepresentations and
omitted “ material facts” from her statement), with Jenkins , 118 M.S.P.R. 161
¶¶ 9, 12 (finding that the deciding official violated an appellant’s due process
rights when the charge listed on the proposal notice was identical to one in the
table of penalties, but the deciding official relied on a different charge listed in
the table bec ause she felt it was comparable in gravity to the appellant’s
misconduct and allowed for a higher penalty). Considering the totality of the
circumstances, we find that the deciding official’s error was not “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 137 7.
¶7 The appellant states on review that she waived her hearing request because
she could no longer afford to pay her att orney. PFR File, Tab 1 at 5. An
appellant has the right to be represented by an attor ney or another representative.
5 U.S.C. § 7701 (a)(2). However, it is well settled that the right of appeal is
personal to the appellant, whether or not she is re presented, and she remains
responsible for prosecuting and developing her appeal. Mashack v. U.S. Postal
Service , 96 M.S.P.R. 174, ¶ 8 (2004); see Brum v. Department of Veterans
Affairs , 109 M.S.P.R. 129, ¶ 5 (2008). The appeal form completed by the
appellant notified her of her right to request a hearing, as did the administrative
judge ’s Acknowledgment Order. IAF, Tabs 1, 2. To the extent the appellant
regrets waiv ing her right to a hearing, she must accept the consequences of that
decision. See Brum , 109 M.S.P.R. 129 , ¶ 5.
6
¶8 The appellant presents new argument s on review that the agency did not
give her access to her emails, which she contends would provide important
evidence , and that the agency did not use progressive discipline in violation of
Executive Order No. 14 ,003. PFR File, Tab 1 at 5 -6. Under 5 C.F.R. § 1201.115 ,
the Board generally will not consider evidence or argument submitted for the first
time with a petition for review absent a showing that it was unavailable b efore 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. 21 1, 213 -14 (1980).
We are not persuaded that the appellant’s argument that the agency violated
Executive Order No. 14 ,003 is based on previously unavailable information given
that it was publicly issued 6 months before the appellant filed her appeal. Exec.
Order No. 14,003, 86 Fed. Reg. 7231 (Jan. 22, 2021); IAF, Tab 1 . As to the
emails, the appellant had the opportunity to conduct discovery and does not
dispute that she issued discovery requests, including requests for the production
of documents, or that the agency responded and supplemented its responses to
those requests. 5 C.F.R. § 1201.73 (a); PFR File, Tab 3 at 12 , 16. To the extent
she believed the agency’s responses were def icient, the appropriate course of
action would have been to file a motion to compel, which the appellant did not
do. 5 C.F.R. § 1201.73 (c)(1) ; PFR File, Tab 3 at 12 . Therefore, we are n ot
persuaded that she exercised due diligence with regard to the emails. See Walton
v. Tennessee Valley Authority , 48 M.S.P.R. 462 , 468 -69 (1991) (stating that an
appellant is responsible for the absence of eviden ce to support her claims if she
fails to exercise due diligence in pursuing discovery). Accordingly, we will not
consider these arguments raised for the first time on review . See Avansino ,
3 M.S.P.R. at 214.
7
NOTICE OF APPEAL RIG HTS2
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 app ropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
9
race, color, religion, sex, national origin, or 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 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
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), 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.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 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
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.
11
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill 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 | HAYES_JENNIFER_DC_0752_21_0532_I_1_FINAL_ORDER_2057759.pdf | 2023-08-09 | null | DC-0752 | NP |
2,811 | https://www.mspb.gov/decisions/nonprecedential/MORPHIS_KATHY_SF_0752_20_0516_I_1_FINAL_ORDER_2057812.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KATHY MORPHIS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -20-0516 -I-1
DATE: August 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Heather A. Masten , Esquire, Fort Sam Houston, Texas, 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. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous 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
concerning the appellant’s affirmative defenses of reprisal for equal employment
opportunity (EEO) activity and whistleblo wing , we AFFIRM the initial decision .
BACKGROUND
¶2 The appellant was employed by the agency as an Attorney -Advisor in the
agency’s Judge Advocate Office at Tripler Army Medical Center in Honolulu,
Hawaii. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 18. By letter dated
March 27, 2020, the agency propose d her remova l based on two charges:
(1) conduct unbecoming a Federal e mployee ; and (2) negligent performance of
duties. IAF, Tab 1 at 8 -20. Each charge was supported by five specifications.
Id. at 8-9. After affording the appellant an opportunity to respond, the agency
issued a decision sustaining both charges and removing the appellant, effective
May 27, 2020. Id. at 44 -46. The deciding official sustained specifications 2-5 of
the conduct unbecoming charge and all five specifications in support of the
negligent performance charge. Id.
¶3 The appellant filed a Board appeal challenging her removal and raising
affirmative defenses of reprisal for her protected EEO and whistleblow ing
3
activities .2 Id. at 7, 38 -39. After holding the appellant’s requested hearing, the
administrative judge issued an initial decision sustaining the appellant’s removal.
IAF, Tab 64, Initial Decision (ID). The administrative judge found that the
agency proved both of its charges, the appel lant failed to prove any of her
affirmative defens es, and the penalty of removal was reasonable. Regarding the
conduct unbecoming charge, the administrative judge sustained specifications 3 -5
but did not sustain specification 2. ID at 5 -32. Regarding the negligent
performance charge, the administrative judge sustain ed all five specifications. ID
at 32 -49. The administrative judge found that the appellant failed to prove that
her prior EEO activity was a motivating factor in her removal and that, although
the agency perceived her as a whistleblower, th e agency proved by clear and
convincing evidence that it would have removed her in the absence of such a
perception . ID at 52 -65. Finally, t he administrative judge a lso found that the
agency did not violate the appellant’s due process rights based on the deciding
official’s testimony at the hearing that he relied on the EEO materials that the
appellant submitted with her written response to support his penalty
determination. ID at 49-52.
¶4 The appellant has filed a petition for review, which the agency has opposed.
Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the agency proved both of its
charges.
¶5 On petition for review, the appellant argues that the agency failed to prove
any of its specifications in support of its charges. PFR File, Tab 1 at 7 -13.
However, she largely fails to cite to specific evidence and explain its relevance or
how it would alter the outcome of the appeal. For example, regarding charge 1,
2 The appellant also initially raised, but later withdrew, affirmative defenses of
discrim inati on based on her age, sex , and disability. ID at 53 n.13.
4
specification 4, the appellant summarily asserts, “this was a mistake and the
Agency failed to prove it occurred as charged. It was not serious and did not
ultimately impact the Agency seriously. ” Id. at 8. To t he extent the appellant
does not identify specific error s in the administrative judge’s analysis, the Board
will not embark upon a complete review of the record. See Baney v. Department
of Justice , 109 M.S.P.R. 242 , ¶ 7 (2008); Tines v. Department of the Air Force ,
56 M.S.P.R. 90 , 92 (1992); 5 C.F.R. § 1201.115 (a)(2) (stating that a petitioner
who alleges that the administrative judge made erroneous findings of material
fact must explain why the challenged factual determination is incorrect and
identif y specific evidence in the reco rd that demonstrates the error) . Nonetheless,
we address those issues and findings regarding which the appellant has presented
specific arguments on review.
¶6 Regarding charge 2, the appellant reiterates her unsupported argu ment that ,
to prove a charge of negligent performance of duties , the agency was required to
prove the elements of the tort of legal malpractice , which includes proof that the
appellant’s actions resulted in damage to the agency. PFR File, Tab 1 at 11. The
administrative judge , however, prope rly considered and rejected such an
argument. ID at 32 -33; see Velez v. Department of Homeland Security ,
101 M.S.P.R. 650 , ¶ 11 (2006), aff’d , 219 F. App ’x 990 (Fed. Cir. 2007) (holding
that c ulpable negligence in the performance of official duties is 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 ). The appellant also asserts that the agency failed to prove
charge 2, specifications 3 and 4 , because it failed to present evidence that her
legal advice was wrong. PFR File, Tab 1 at 12 -13. However, the relevant inquiry
is not whether the agency proved that the appellant provided incorrect legal
advice but, rather, whether the agency proved that she failed to exercise the
degree of care required under the particul ar circumstances. See Velez ,
101 M.S.P.R. 650 , ¶ 11 . The appellant has not established any error in the
5
administrative judge’s findings that it was negligent for her to “shoot from the
hip” and provide legal advice based on personal opinions without conducting any
legal research or providing any legal analysis, particularly given the issues
involved complex and opaque legal questi ons that an attorney of the appellant’s
experience should have known could be open to multiple interpretations and
would need t o be researched further. ID at 43-48.
¶7 Regarding charge 2, specification 5, the appellant summarily asserts that
this specificati on “shows charge stacking by the Agency” because the agency
charged her for the same misconduct twice. PFR File, Tab 1 at 13. The record
reflects that in charge 2, specification 5 , the agency charged the appellant with
negligently failing to perform her duties by refusing to assist or provide discovery
as ordered by a military judge in a military courts -martial case. IAF, Tab 1 at 9.
Although related, charge 1, specification 3 , charged her with conduct unbecoming
based on an inflammatory statement she m ade to the trial counsel in the context
of refusing to provide the discovery. Id. at 8. Thus, we discern no error in the
administrative judge’s decision to sustain both specifications.
¶8 Next, the appellant contends that the administrative judge erred in her
credibility findings. Regarding charge 2, specification 1 , the appellant contends
that she did not testify that she told her supervisor that live testimony was
required at an adverse action privilege hearing and the administrative judge erred
in crediting her supervisor’s testimony to the contrary because the supervisor was
biased against her. PFR File, Tab 1 at 11 -12. Such arguments do not provide a
sufficiently sound reason for ove rturning the administrative judge’s
demeanor -based credibility findings. See Haebe v. Department of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002) ( holding that the Board may overturn an
administrative judge ’s credibility determinations only when it has “sufficiently
sound” reasons for doing so) . Here, the administrative judge observed the
appellant and her supervisor testify , and he found that the appellant’s supervisor’s
testimony was “eminently mor e credible than the appellant’s ” and consistent with
6
the record, including with his contemporaneous emails and memorandum for the
record. ID at 39. In contrast, the administrative judge found that the appellant’s
testimony was evasive, vague, argumentative, and neither internally consistent
nor consistent with t he record. ID at 39 -40. W e decline to disturb the
administrative judge’s credibility findings because the record reflects that he
considered the evidence as a whole, d rew appropriate inferences, and made
reasoned conclusions on the issue of credibility. See, e.g. , 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) .
¶9 Similarly, regardin g charge 1, specification 5, the appellant contends that
the administrative judge erred in crediting Major J .W.’s testimony because he was
unreliable, biased, and paranoid that the appellant would blame him for
malpractice. PFR File, Tab 1 at 7 -9. The ap pellant further contends that Major
J.W.’s hearing testimony was inconsistent with his written memorandum of the
incident because he did not specifically use the word “threat” in describing the
appellant’s alleged actions that he perceived as a threat to c hange his testimony.
Id. at 9. Finally, the appellant asserts that Major J .W. knew that any alleged
threat by her to report him would not have been viable because Major J .W. knew
he did not have any obligation to report child abuse. Id. at 9-10. However, the
administrative judge considered and rejected such arguments, which we find
constitute mere disagreement with the administrative judge’s credibility findings
and, thus, do not provide a sufficiently sound reason to overturn such findings.
ID at 19-24. For example, the administrative judge acknowledged that Major
J.W. conceded that he was aware that he had no professional responsibility to
report child abuse , which could suggest that he should have known that the
alleged threat by the appellan t was an empty t hreat. ID at 22. However, the
administrative judge credited the testimony of Major J.W. that he viewed the
appellant as a legal expert on these issues and therefore believed that she might
have some legitimate basis for making the threat. Id. The administrative judge
7
further found Major J.W.’s testimony and description of the fear and anxiety he
experienced as a result of his January 23, 2020 conversation with the appellant to
be “fully sincere, internally consistent, and consistent with the record.” Id.
¶10 Lastly, the appellant contends that the administrative judge erred in
sustaining charge 2, specification 2, because to do so would amount to
disciplining her for being a whistleblower . PFR File, Tab 1 at 12. However, as
discussed below, we disagree with the administrative judge’s conclusion that the
proposing official perceived the appellant as a whistleblower based on her
comments that form the basis of this specification . Thus, the appellant’s
argument pr ovides no basis for reversing the administrative judge’s decision to
sustain charge 2, specification 2.
We vacate the administrative judge’s findings concerning the appellant’s
affirmative defense of whistleblower reprisal.
¶11 The administrative judge foun d that the appellant’s supervisor, the Center
Judge Advocate (CJA) , who was the proposing official, perceived the appellant as
a whistleblower based on their June 3, 2019 conversation that formed the basis of
the agency’s charge 2, specification 2. ID at 60-61. The agency has not filed a
cross petition for review challenging the administrative judge’s finding that the
CJA perceived the appellant as a whistleblower. Nonetheless, we exercise our
discretion to consider the issue to properly address the appe llant’s contention on
review that the administrative judge erred in sustaining cha rge 2, specification 2,
because it was grounded in her perceived whistleblowing . PFR File, Tab 1 at 12;
see 5 C.F.R. § 1201.115 (e) (stating that the Board reserves the authority to
consider any issue in an appeal before it).
¶12 The relevant background facts a ccording to the administrative judge are as
follows. The parties d o not dispute that , during the Jun e 3, 2019 meeting, the
appellant and the CJA discussed a privileging matter concerning a hospital
provider who had been accused of engaging in inappropriate sexual conduct with
patients and staff . ID at 2-3, 34, 36. A credentialing committee had previous ly
8
convened to discuss the matter , and the committee intended to recommend to the
Commander , who was the ultimate decision maker, that the provider be reinstated
with monitoring and evaluation. ID at 33-35. The CJA, whose role was to advise
the Commander in legal matters , disagreed with the credentialing committee’s
recommendation, believed there was sufficient evidence to take an adverse
privileging action , and expressed his concern to the head of the credentialing
committee about the optics of reinstati ng the provider under the circumstances.
ID at 35. However, prior to making his recommendation to the Commander, t he
CJA wanted to discuss the matter with the appellant, who was the agency’s legal
expert in privileging matters. ID at 35 , 41.
¶13 On June 3, 2019, the CJA met with the appellant , and they discussed the
matter . ID at 36 . The administrative judge credited the testimony of the CJA ,
over the appellant’s denial that, during the ir meeting, the appellant raised
concerns that the CJA would be acting unethically and asserting unlawful
command influence (UCI) if he recommended to the Commander a course of
action that differed from the credentialing committee’s recommendation. ID
at 36-37. The CJA took the appellant’s alleged ethical concerns seriousl y and
reported them to the legal staff at MEDCOM , the agency’s central medical
command. ID at 37. MEDCOM issued a memorandum dated September 3, 2019,
finding that there was no evidence to support the allegation s that the CJA had
engaged i n unethical cond uct or UCI. Id.; IAF, Tab 21 at 4 -8. Thereafter, the
CJA proposed the appellant’s removal on March 27, 2020 . IAF, Tab 1 at 8 -20.
Charge 2, specification 2 of the proposal alleged that the appellant negligently
failed to adequately research her legal opinion that it was UCI and unethical for
the CJA to advise the Commander of a recommendation that differed from the
credentialing committee’s recommendation, which is contrary to Army
Regulations stating that the Commander is not bound by the recommendation of
the credentialing committee. Id. at 9; IAF, Tab 23 at 246.
9
¶14 The administrative judge found that the CJA perceived the appellant as a
whistleblower based on the following: (1) the CJA admitted that the appellant
accused him of unethical conduct and UCI, both of which would be considered a
violation of law, rule, or regulation ; and (2) the CJA took the appellant’s
accusations seriously and self -reported the issues raised. ID at 61. We disagree
with the administrative judge’s analysis . Under a perceived whistleblower
theory, the relevant inquiry is whether the CJA reasonably believed that the
appellant made or intended to make disclosures that evidenced a type of
wrongdoin g listed under 5 U.S.C. § 2302 (b)(8). See King v. Department of the
Army , 116 M.S.P.R. 689 , ¶ 8 (2011). Here, the record does not support such a
finding.
¶15 The CJA testified that he was concerned generally that the appellant had a
perception that he was acting unethically, and he reported the appellant’s
allegations to dispel any question concerning his credibility or reputation not
because he viewed the appellant’s allegations “. . . as credible , or even
understood . . .” the basis for her allegations or how his actions purported to raise
any ethical concerns or UCI . IAF, Tab 61 , Hearing Recording (HR) (testimony of
the CJA). He further testified that the appellant did not say why his conduct
would be unethical and , on cross -examination, when asked to explain how the
situation raised any ethical issues , the CJA indicated that it was the appellant’s
perception, and you would have to ask her. Id. He further testified that the
appellant made the comments but whether they were proper or feasible was a
different argument. Id. We find that, given the conclusory and incomplete natur e
of the appellant’s allegations, the CJA could not reasonably have perceive d her as
disclosing a violation of law, rule, or regulation , notwithstanding his report of her
allegations . See, e.g. , Montgomery v. Merit Systems Protection Board , 382 F.
App’x 9 42, 947 ( Fed. Cir. 2010) (finding that the relevant management officials
did not perceive the appellant to be a whistleblower because, although they
conceded knowledge of the allegations, they did not concede the legitimacy of her
10
allegations , which they p erceived as frivolous) (citing Special Counsel v. Spears ,
75 M.S.P.R. 639 , 652 -54 (1997) (finding that the doctrine of perceived
whistleblowing does not apply if a hypothetical observer could not reasonably
believe that the information disclosed evidenced agency wrongdoing) ).3
¶16 Moreover , at the time he proposed the appellant’s removal on March 27,
2020 , MEDCOM had already exonerated the CJA of any misconduct when , on
September 3, 2019, it concluded that he had not engaged in unethical conduct or
exerted UCI. IAF, Tab 21 at 4 -8. Significantly, MEDCOM concluded that UCI
was not applicable to the privileging matter because th e CJA was not advising the
Commander in a court -martial process. Id. at 6-7. It further concluded that there
were no ethical issues because the Commander was not bound by the
recommendation of the credentialing committee, it was the CJA’s duty to advise
the Commander on health law matters , there was sufficient evidence to support a
recommendation for an adverse privileging action, and MEDCOM had already
informed the CJA that reinstatement with monitoring and evaluation was not an
option because the provid er no longer possessed a medical license and therefore
could not practice medicine even if reinstated. Id. at 5-7. Thus, u nder these
facts, the record does not support a conclusion that the CJA perceived the
appellant as a whistleblower at the time he issued the proposal notice.4 See
3 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court’s reasoning persuasive, as we do here. E.g.,
Johnson v. Office of Personnel Management , 2022 MSPB 19 , ¶ 11 n.3.
4 On review, the appellant disputes the administrative judge’s finding that the deciding
official did not perceive her to be a whistleblower. PFR File, Tab 1 at 5. The appellant
contends that the deciding official must have perceived her to be a whistleblower
because, in her written response to the proposal notice, she alleged that her removal
constituted reprisal based on the proposing official’s perception of her as a
whistleblower. Id. The administrative judge acknowledged that the appellant raised
such an argument in her written response to the proposal notice, but he credited the
testimony of the deciding official that he was confused about the appellant’s perceived
whistleblowing claim because he would only consider someone a whistleblower if they
reported wrongdoing to the Office of Special Counsel or there was evidence that the
11
Montgomery , 382 F. App’x at 947. Accordingly, we vacate the administrative
judge’s finding to the contrary. Because we find that the appellant failed to prove
that she was perceived as a whistleblower, we also vacate the administrative
judge’s clear and convincing analysis and we do not reach the appellant’s
arguments regarding the same . PFR File, Tab 1 at 6 -7; see Clarke v. Department
of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014) (stating that the Board
may not proceed to the clear and convincing evidence test unless it has first made
a finding that the appellant established his prima facie case), aff’d , 623 F. App’x
1016 (Fed. Cir. 2015).
The ad ministrative judge properly found that the appellant failed to prove her
remaining affirmative defenses.
¶17 On review, the appellant reiterates her argument that the agency violated
her due process right s because the deciding official testified that he considered
the evidence the appellant submitted in her written response to the proposal
notice as an aggravating factor. PFR File, Tab 1 at 13. The administrative judge
summarized the issue as follows: the deciding official testified that , in
determining the appropriate penalty, he considered the information provided by
the appellant in her written response, which relat ed to her prior EEO complaints ,
and found that such information further supported his c onclusion that removal
was the appropriate penalty because the appellant demonstrated a pattern of being
unable or unwilling to see any other perspective than her own and placing the
blame for her actions on others rather than accepting at least some respo nsibility.
ID at 49 . The administrative judge found that this did not amount to a due
agency ha d launched a whistleblower investigation, nei ther of which had occurred. ID
at 61. Because the perceived whistleblower analysis is based on the perception of the
agency officials and, in light of the administrative judge’s credibility finding that the
deciding official did not believe that the appellant engaged or intended to engage in
whistleblowing activity, we discern no error in the administrative judge’s conclusion
that the deciding official did not perceive the appellant to be a whistleblower. See
King , 116 M.S.P.R. 689 , ¶ 8.
12
process violation because the notice of proposed removal clearly put the appellant
on notice that it considered as an aggravating factor the appellant’s apparent
inabil ity to recognize or accept that she had made errors. ID at 52. The
administrative judge further noted that the appellant failed to cite any precedent
that would suggest that the deciding official had a duty to notify the appellant that
he may use her wri tten response to support an aggravating factor. Id.
¶18 We agree with the administrative judge ’s conclusion that the appellant
failed to establish that the agency violated her due process rights . Th e Board has
held that an employee is not entitled to know the particular weight that a deciding
official will attach to her arguments raised in response to the proposed adverse
action in advance of a final decision. Grimes v. Department of Justice ,
122 M.S.P.R. 36 , ¶ 13 (2014) ; Wilson v. Department of Homeland Security ,
120 M.S.P.R. 686 , ¶¶ 11-12 (2014) , aff’d , 595 F. App’x 995 (Fed. Cir. 2015).
Thus , we find unpersuasive the appellant’s contention that the deciding official
could not draw an adverse inference for penalty purposes based on information
contained in her written response . PFR File, Tab 1 at 13 .
¶19 The appellant also argues that the deciding official’s consideration of the
EEO materials she submitted amounts to d irect evidence that her removal was not
free from retaliation for her EEO activit y. Id. at 14. We find her argumen t
unavailing. The deciding official testified that it was not the fact that the
appellant engaged in EEO activity itself but rather , as the administrative judge
noted, the content of the appellant’s statements that refle cted a pattern in which
she failed to take accountability or assume responsib ility for her behavior which
led the deciding official to believe she lacked potential for rehabilitation. ID
at 49, 52; HR (testimony of the deciding official) . We find no basis to disturb the
administrative judge’s explained findings that none of the appellant’s EEO
activity was a motivating factor in her removal. ID at 59. The administrative
judge’s findings demonstrate that he considered the evidence as a w hole, drew
13
appropriate inferences, and made reasoned conclusions on the issue of credibility.
See Crosby , 74 M.S.P.R. at 105 -06; Broughton , 33 M.S.P.R. at 359.
¶20 We note that, after the issuance of the initial decision, the Board issued
Pridgen v. Office of Management and Budget , 2022 MSPB 31 . Among other
things, Pridgen held that, although claims of retaliation for opposing
discr imination in violation of Title VII are analyzed under the same framework
used for Title VII discrimination claims, 2022 MSPB 3 1, ¶¶ 30, 33, a “but -for”
standard applies to a claim of retaliation for requesting a reasonable
accommodation for a disability or opposing disability discrimination, id.,
¶¶ 44-47. Here, the appellant ’s underlying EEO activity appears to include both
Title VII claims and disability discrimination claims. ID at 54 -55. Consideration
of the appellant’s claims under the frameworks set forth in Pridgen does not
change the result. To the extent that the ini tial decision analyzed the appellant’s
claims of reprisal in connection with opposing disability discrimination under the
lower motivating factor standard, we discern no error in the administrative
judge’s reasoning. See Pridgen , 2022 MSPB 31 , ¶ 48. We also find no reason to
disturb the administrative judge’s conclusion that the appe llant failed to establish
that her Title VII -related activity was a motivating factor in the removal decision.
Having considered the appellant’s arguments and the record in this matter, we
further find that the a ppellant has failed to prove her retaliation claims by any
other method. See id. , ¶¶ 23-24.
¶21 Based on the foregoing, we affirm the administrative judge’s decision to
sustain the appellant’s removal.
14
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
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of revie w rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
16
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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
17
other protected activities listed in 5 U.S.C. § 2302 (b)(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.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,” 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
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 re prisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
for Merit Systems 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.
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MORPHIS_KATHY_SF_0752_20_0516_I_1_FINAL_ORDER_2057812.pdf | 2023-08-09 | null | SF-0752 | NP |
2,812 | https://www.mspb.gov/decisions/nonprecedential/LOVE_BUTLER_NATALIE_DC_0432_21_0340_I_1_REMAND_ORDER_2057830.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NATALIE LOVE -BUTLER,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DC-0432 -21-0340 -I-1
DATE: August 9, 2023
THIS ORDER IS NONPRECEDENTIAL1
Natalie Love -Butler , Washington, D.C., pro se.
Juan Pablo Perez -Sangimino , Esquire, and Marsha Stelson Edney , 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 performance -based reduction in grade and denied her affirmative
defenses of denial of a reasonable accommodation and disparate treatment
disability discrimination . For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
petition for review, VACATE the initial decision, and REMAND the case to the
Washington Regional Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 At the time relevant to this appeal, the app ellant was employed as a
Technical Assistant at the NB -0303 -IV level with the agency’s Office of the
Comptroller of the Currency’s Office of Communications. Initial Appeal File
(IAF), Tab 6 at 43. Effective April 8, 2020, the appellant was placed on a
performance improvement plan (PIP)2 based on her unacceptable performance in
three skills elements, including Administrative Knowledge and Skills,
Technology Skills, and Interpersonal Skills. IAF, Tab 7 at 8. At the conclusion
of the PIP, the appellant’s supervisor determined that, although the appellant’s
performance improved to an acceptable level in the Administrative Knowledge
and Skills and Interpersonal Skills elements, her performance in the Technology
Skills element remained unacceptable. Id. at 64 -68. Therefore, the agency
reduced her from an NB -0303 -VI level to an NB -0303 -III level. Id. at 55 -59.
¶3 The appellant appealed her reduction in grade to the Board. IAF, Tab 1.
She also raised the affirmat ive defenses of failure to provide a reasonable
accommodation, disparate treatment disability discrimination, reprisal for filing
an equal employment opportunity (EEO) complaint, and reprisal for filing a
grievance. IAF, Tab 1 at 12 -13, Tab 6 at 3 -7, Tab 17 at 6. After holding the
appellant’s requested hearing, the administrative judge issued an initial decision
affirming the appellant ’s reduction in grade and finding that she failed to prove
her claims of failure to accommodate and disparate treatment di sability
discrimination. IAF, Tab 22, Initial Decision (ID).
2 The agency’s iteration of a PIP is referred to as a notice of opportunity to improve
performance in the record.
3
¶4 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. She continues to argue the merits of her reduction
in grade, and she reraises he r claims of reprisal for filing an EEO complaint and
reprisal for filing a grievance. Id. at 4. The agency has filed a response. PFR
File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 In the initial decision, the administrative judge appropriately conclude d that
the agency proved by substantial evidence the following: the agency
communicated to the appellant the performance standards and critical elements of
her position ; the appellant’s performance standards are valid under 5 U.S.C.
§ 4302 (c)(1) ; the appellant’s performance was at an unacceptable level in one or
more critical element s prior to her placement on the PIP ; it communicated to her
and warned her of the inadequacies of her performance ; it provided her with an
adequate opportunity to improve ; and her performance nonetheless remained at an
unacceptable level in at least one critical element after the opportunity to
improve.3 ID at 12; see Santos v. National Aeronautics and Space
Administration , 990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021); Towne v. Department
of the Air Force , 120 M.S.P.R. 239 , ¶ 6 (2013). The appellant’s arguments on
review regarding these elements do not provide a basis to disturb the
administrative judge’s findings. See Crosby v. U.S . Postal Service , 74 M.S.P.R.
98, 105 -06 (1997) (finding no reason to disturb the administr ative judge’s
findings when she consider ed the evidence as a whole, drew appropriate
inferences, and reached well -reasoned conclusions); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
3 The agency also bears the burden of proving that the Office of Personnel Manageme nt
(OPM) approved its performance appraisal system and any changes thereto. See
Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶ 6 n.5 (2013). In the initial
decision, the administrative judge observed that the parties stipulated that OPM had
approved the agency’s performance appraisal system, and thus, he did not discuss this
element further. ID at 12 & n.5; IAF, Tab 16 at 19.
4
¶6 Regarding the appellant’s affirmative defenses of failure to accommodate
and disparate treatment disability discrimination, the administrative judge found
that the agency ultimately provided the appellant with her requested
accommodation of maximum telework and that the appellant did not present any
evidence that her disability motivated the agency’s decision to reduce her grade
in any way.4 ID at 20 -22; see Pridgen v. Of fice of Management and Budget ,
2022 MSPB 31 , ¶ 40 (applying a motivating factor causation standard to disparate
treatment disab ility discrimination claims) . Accordingly, he denied both
affirmative defenses. ID at 20 -22. The appellant has not challenged these
findings on review. PFR File, Tab 1. Based on our review of the record, we
agree with the administrative judge’s conclu sions as set forth here.5 See Crosby ,
74 M.S.P.R. at 105-06; Broughton , 33 M.S.P.R. at 359.
4 In the initial decision, the administrative judge cited to Savage v. Department of the
Army , 122 M.S.P.R. 612 (2015) , in his discussion of what evidence may be relied upon
to show that the appellant’s disability was a motivating factor in the agency’s
performance -based action. ID at 22. In Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶¶ 23 -25, the Board clarified the methods of proof by which an
appellant may prove discrimination as an affirmative defense as set forth in Savage . In
the instant appeal, the administrative judge’s discussion of direct and circumstantial
evidence is consistent with the methods of proof set forth in Pridgen in that he did not
discard any evidence suggesting that the agency’s reason for taking the
perfo rmance -based action was pretextual. ID at 22; see Pridgen , 2022 MSPB 31 , ¶ 24.
As such, the outcome of the appellant’s discri mination claims would not change under
Pridgen , and the administrative judge’s findings need not be disturbed.
5 In arriving at his conclusion regarding the appellant’s disparate treatment disability
discrimination claim, the administrative judge stated th at his conclusion presupposes,
without finding, that the appellant had a disability within the meaning of the law. ID
at 22 n.7. He explained that, because there was no evidence of disparate treatment, he
need not reach the question of whether the appell ant has an impairment that
substantially limits a major life function. ID at 22 n. 7; see 29 C.F.R. § 1630.2 (g). In
Haas v . Department of Homeland Security , 2022 MSPB 36 , ¶ 29, the Board recently
clarified that only an otherwise qualified individual with a disability is entitled to relief
under the Americans with Disa bilities Act (ADA) of 1990 for a claim of status -based
discrimination or denial of reasonable accommodation. Because we agree with the
administrative judge that the appellant failed to establish that she was ultimately denied
her requested accommodation and that her disability was a motivating factor in her
reduction in grade, we discern no error in the administrative judge’s decision to omit
5
¶7 As noted above, on review, the appellant argues that her placement on the
PIP and reduction in grade were taken in reprisal for filing an EEO complaint and
for fil ing a grievance. PFR File, Tab 1 at 4. The appellant raised these
argument s below both in her initial appeal and her prehearing submissions. IAF,
Tab 1 at 12 -13, 18 -19, Tab 17 at 6 -7. Nonetheless, the administrative judge did
not provide the appellant with any information about how she could prove these
claims, nor did he address these claims in either of his two orders and summaries
of the prehearing conference or in the initial decision. IAF, Tabs 9, 18.
¶8 The Board has recently affirmed the ge neral proposition that, when
an appellant raises an affirmative defense, the administrative judge must address
the affirmative defense in a close of record order or prehearing conference
summary. Thurman v. U.S. Postal Service , 2022 MSPB 21 , ¶¶ 10 , 17 n.7.
In circumstances when the administrative judge fails to address the affirmative
defense in the adjudica tion of the appeal, the Board has set forth a nonexhaustive
list of factors to be considered when determining whether remand is necessary for
an administrative judge to address the affirmative defense. Id., ¶ 18. Those
factors include : (1) the thoroughn ess and clarity with which the appellant raised
an affirmative defense; (2) the degree to which the appellant continued to pursue
the affirmative defense in the proceedings below after initially raising it;
(3) whether the appellant objected to a summary o f the issues to be decided that
failed to include the potential affirmative defens e when specifically afforded
an opportunity to object and the consequences of the failure were made clear;
(4) whether the appellant raised the affirmative defense or the adm inistrative
judge’s processing of the affirmative defense claim in the petition for review;
(5) whether the appellant was represented during the course of the appeal before
from the initial decision any analysis or finding on the que stion of whether the
appellant was a qualified individual with a disability . A finding that the appellant
failed to establish the causation element forecloses any entitlement to relief under the
ADA , regardless of whether the appellant can prove that she is a qualified individual
with a disability.
6
the administrative judge and on petition for review, and if not, the level of
knowl edge of Board proceedings possessed by the appellant; and (6) the
likelihood that the presumptive abandonment of the affirmative defense was the
product of confusion, or misleading or incorrect information provided by the
agency or the Board. Id.
¶9 Applyi ng these factors, we recognize that the administrative judge’s order
and summary of the prehearing conference, which did not include any discussion
of the appellant’s reprisal claims, provided the appellant with a clear opportunity
to object to his framing of the issues and that she did not do so . IAF, Tab 9 at 8,
Tab 18 at 8. However, no individual factor is dispositive in determining whether
an appellant will be deemed to have waived or abandoned a previously identified
affirmative defense. See Thurman , 2022 MSPB 21 , ¶ 18. Regarding the
remaining factors, the appellant’s claim that the agency placed her on the PIP and
reduced her grade in reprisal for filing an EEO complaint and a grievance was
clearly set forth in her two pleadings below, one of which was submitted after the
administrative judge preliminarily defined the issues. IAF, Tab 1 at 7, 12 -13,
Tab 9 at 3 -7, Tab 17 at 6, 12. Further, she submitted evidence that purports to
support these claims. IAF, Tab 17 at 16 -23. As noted, the appellant raised these
claims of reprisal again on review in her single -paragraph pleading challenging
the initial decision. PFR File, Tab 1 at 4. Finally, the appellant has proceeded
pro se during both the adjudication of her appeal below and on review. Based on
the foregoing, we find that the appellant did not waive or abandon her affirmative
defenses of reprisal for filing an EEO complain t and grievance, and we remand
this appeal for the administrative judge to consider these claims.6
6 With the appellant’s petition for review, she submitted several documents that appear
to reflect her communication with her supervisor during the PIP. PFR File, Tab 1
at 5-20. Some of these documents are in cluded in the record below. IAF, Tab 16
at 177-81; PFR File, Tab 1 at 11 -15. To the extent that any of the newly -submitted
documents were not included in the record below, the Board generally will not consider
evidence submitted for the first time with a petition for review absent a showing that it
7
ORDER
¶10 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
¶11 On remand, the administrative judge shall provide the appellant with notice
and information on how she can prove her claims of reprisal for filing an EEO
complaint and reprisal for filing a grievance. Additionally, the administrative
judge shall take additional evidence and/or hold a supplemental hearing to fully
develop the record on this issue.
¶12 After fully adjudicating the appellant’s claims of reprisal, the administrative
judge shall then issue a remand initial decision , making findings on these claims.
In that remand initial decision, the administrative judge may incorporate his
findings regarding t he merits of the appellant’s performance -based reduction in
grade and her other affirmative defenses of failure to accommodate and disparate
treatment disability discrimination . See Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980).
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
was unavailable before the record closed despite the party’s due diligence. Chin v.
Department of Defense , 2022 MSPB 34 , ¶ 8; Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211 , 214 (1980). Here, all the documents submitted with the ap pellant’s
petition for review predate the close of the record and thus were available before the
record closed. The appellant has not explained why she was unable to submit them
then, nor has she explained how they are otherwise of sufficient weight to wa rrant an
outcome different than that of the initial decision as it relates to the merits of the
reduction in grade. Nonetheless, to the extent any of the documents submitted on
review relate to the appellant’s affirmative defenses of reprisal for filing a n EEO
complaint and a grievance, the administrative judge should consider them on remand. | LOVE_BUTLER_NATALIE_DC_0432_21_0340_I_1_REMAND_ORDER_2057830.pdf | 2023-08-09 | null | DC-0432 | NP |
2,813 | https://www.mspb.gov/decisions/nonprecedential/JACKSON_REGINA_B_DC_0752_14_0739_E_1_FINAL_ORDER_2057381.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
REGINA B. JACKSON,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -14-0739 -E-1
DATE: August 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Regina B. Jackson , Gaithersburg, Maryland, pro se.
Kevin Greenfield , Esquire, Lisa Wischkaemper , Esquire, and Mary E.
Harney , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 On July 14, 2023 , the Board received a decision issued on July 5 , 2023, by
the Equal Employment Opportunity Commission ( EEOC). The decision states
that the EEOC differs with the Board’ s final decision in this case, and it refers the
case to the Board for further consideration under 5 U.S.C. § 7702 (b)(5)(B) . 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 adminis trative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 reasons set forth herein , we CONCUR IN and ADOPT the EEOC’ s finding
that the appellant’s removal was motivated by re taliation for engaging in
protected equal employment opportunity ( EEO ) activity and that the agency failed
to demonstrate that it would have removed her in the absence of the
impe rmissible motivating factor . The agency’s removal action is NOT
SUSTAINED.
BACKGROUND
¶2 Effective Januar y 17, 2013, the agency removed the appellant from her
position as a GS -14 Program Analyst based on a charge of lack of candor.
Jackson v. Department of Defense , MSPB Docket No. DC-0752 -14-0739 -I-1,
Initial Appeal File (IAF), Tab 15 at 8 -14, 20, Tab 16 at 36-44. Five of the seven
specifications underlying the agency’s charge pertained to the appellant providing
false information in discovery responses given during the adjudication of an EEO
matter. IAF, Tab 16 at 38-40. She appealed her removal to the Board and,
on February 18, 2015, the administrative judge assigned to the matter issued
an initial decision affirming the agency’s removal action and finding that the
appellant failed to prove any of her affirmative defenses, including her claim of
EEO retaliation . IAF, Tab 1, Tab 70, Initial Decision at 1, 5-6, 14-28, 30. The
appellant thereafter filed a petition for review of the initial decision. Jackson v.
Department of Defense , MSPB Docket No. DC-0752 -14-0739 -I-1, Petition for
Review (PFR) File , Tab 1. The two Board members at the time could not agree
on a disposition of the appellant’s petition for review; accordingly, on
September 2, 2016, the Board issued a Split Vote Order, which resulted in the
February 18, 2015 initial decision becoming t he Board’s final decision . PFR File,
Tab 14; see 5 C.F.R. § 1200.3 (b).
¶3 The appellant thereafter filed a petition with the EEOC seeking review of
the Board’s final decision regarding her discrimination claims. PFR File, Tab 16;
Jackson v. Department of Defense , MSPB Docket No. DC-0752 -14-0739 -E-1,
EEOC Referral File , Tab 1 at 1. As indicated, i n its July 5, 20 23 decision, the
3
EEOC found that the appellant’s removal was motivated by retaliation for
engaging in protected EEO activity and that the agency had not demonstrated that
it would have removed her in the absence of the impermissible motivating factor.
Id. at 11. T he EEOC found that the appellant is “entitled to full, make -whol e
relief,” and it returned her EEO re taliation claim to the Board for further
processing. Id.
ANALYSIS
¶4 The statute at 5 U.S.C. § 7702 (c) provides that the Board shall either
“concur and adopt in w hole the decision of the [EEOC] ,” or reaffirm the Board’ s
decision with any revisions the Board finds app ropriate. Under the statute, t he
Board may disagree with the EEOC only to the extent that, as a m atter of law, the
EEOC’ s decision either “constitutes an incorrect interpretation of any provision
of civil service law, rule, regulation or policy directive,” or involves a provision
of civil service law and “is not supported by the evidence in the record as a
whole.” The statute allows the Board to disagr ee with the EEOC only whe n the
EEOC misinterprets a civil service law, rule, regulation , or policy directive, or
when the EEOC’s decision is so unreasonable that it amounts to a violation of
civil service law . Campo v. U.S. Postal Service , 93 M.S.P.R. 419 , ¶ 4 (2003).
Here, the EEOC ’s decision rests solely upon an interpr etation of discrimination
law, and we find no basis to conclude that the decision is so unreasonable that it
amounts to a violation of civil service law. Thus, we lack the authority to
disagree with the EEOC’s decision.
¶5 Accordingly, we CONCUR IN and ADOPT the EEOC ’s decision. This is
the final order of the Merit Systems Protection Board concurring in and adopting
EEOC’ s decision. See 5 U.S.C. § 7703 (a)(1) .
ORDER
¶6 We ORD ER the agency to carry out the EEOC’ s decision by cancel ing it s
removal action and restoring the appellant to duty effective January 17, 2013 .
4
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.
¶7 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 coopera te in good faith in the agency’ s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessar y 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.
¶8 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 n otified, should
ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶9 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 di d not fully carry out the Board’ s Order. The petition
should contain specific reasons why the a ppellant 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. See 5 C.F.R. § 1201.182 (a).
¶10 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
5
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 T itle 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 REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a . The regulations may be found at 5 C.F.R. §§ 1201.201 ,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
6
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 fol lowing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the appli cable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a partic ular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review wit h the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 not ice, 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 Ru les of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discriminat ion. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegat ions 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 th e 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 Ci rcuit or any other circuit court 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
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 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 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 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. | JACKSON_REGINA_B_DC_0752_14_0739_E_1_FINAL_ORDER_2057381.pdf | 2023-08-08 | null | DC-0752 | NP |
2,814 | https://www.mspb.gov/decisions/nonprecedential/HENDERSON_ROSS_DC_0752_14_0797_E_1_FINAL_ORDER_2057406.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSS HENDERSON,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-0752 -14-0797 -E-1
DATE: August 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristin D. Alden , Esquire, Washington, D.C., for the appellant.
Christopher Tully , Esquire, Washington, D.C., for the agency.
Roman Lesiw , Esquire, Bethesda, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 On July 12 , 2023 , the Board received a decision issued on July 5 , 2023, by
the Equal Employment Opportunity Commission ( EEOC). The decision states
that the EEOC differs with the Board’ s final decision in this case, and it refers the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
case to the Board for further cons ideration under 5 U.S.C. § 7702 (b)(5)(B) . For
the reasons set forth herein, we CONCUR IN and ADOPT the EEOC’ s finding
that the appellant’s removal was motivated by re taliation for engaging in
protected equal employment opportunity ( EEO ) activity and that the agency failed
to demonstrate that it would have removed him in the absence of the
impe rmissible motivating factor . The agency’s removal action is NOT
SUSTAINED.
BACKGROUND
¶2 Effective May 16, 2014, the agency removed the appellant from his position
as a Computer Scientist based on the following four charges: (1) inappropriate
behavior towards a supervisor; (2) failure to follow supervisory instructions;
(3) inappropriate beh avior in the workplace; and (4) making false allegations.
Henderson v. Department of Health and Human Services , MSPB Docket No.
DC-0752 -14-0797 -I-1, Initial Appeal File (IAF), Tab 5 at 21 -26. The fourth
charge concerns allegations that the appellant made about his first-level
supervisor in an email to the Employee Relations Branch and his second -level
supervisor , wherein he requested assistance in filing an EEO complaint .
Id. at 78-79; IAF, Tab 6 at 158-59. He appealed his removal to the Board and, on
September 25, 2015 , the administrative judge issued an initial decision affirming
the agency’s removal action and finding that the appellant failed to prove any of
his affirmative defenses, including his claim of EEO retaliation. IAF, Tab 38,
Initial Decis ion (ID). The appellant thereafter filed a petition for review of the
initial decision. Henderson v. Department of Health and Human Services , MSPB
Docket No. DC -0752 -14-0797 -I-1, Petition for Review (PFR) File, Tabs 3-4. On
September 15, 2016, t he Board affirmed the initial decision. Henderson v.
Department of Health and Human Services , MSPB Docket No. DC -0752 -14-
0797 -I-1, Final Order (Sept. 15, 2016); PFR File, Tab 11.
3
¶3 The appellant then filed a petition with the EEOC seeking review of the
Board’s final decision regarding his retaliation claim. PFR File, Tab 13 . In its
July 5, 2023 decision, the EEOC found that the appellant’s removal was
motivated by retaliation for engaging in EEO activity and that the agency had no t
demonstrated that it w ould have removed the appellant in the absence of the
impermissible motivating factor. Henderson v. Department of Health and Human
Services , MSPB Docket No. DC -0752 -14-0797 -E-1, Tab 1 at 8. The EEOC found
that the appellant is “entitled to full, make -whole relief,” and it returned his EEO
retaliation claim to the Board for further processing. Id.
ANALYSIS
¶4 The statute at 5 U.S.C. § 7702 (c) provides that the Board shall either
“concur and adopt i n whole the decision of the [EEOC],” or reaffirm the Board’ s
decision with any revisions the Board finds app ropriate. Under the statute, t he
Board may disagree with the EEOC only to the extent that, as a m atter of law, the
EEOC’ s decision either “constitu tes an incorrect interpretation of any provision
of civil service law, rule, regulation or policy directive,” or involves a provision
of civil service law and “is not supported by the evidence in the record as a
whole.” The statute allows the Board to dis agree with the EEOC only whe n the
EEOC misinterprets a civil service law, rule, regulation, or policy directive, or
when the EEOC’s decision is so unreasonable that it amounts to a violation of
civil service law . Campo v. U.S. Postal Service , 93 M.S.P.R. 419 , ¶ 4 (2003).
Here, the EEOC ’s decision rests solely upon an interpr etation of discrimination
law, and we find no basis to conclude that the decision is so unreasonable that it
amounts to a violation of civil service law. Thus, we lack the authority to
disagree with the EEOC’s decision.
¶5 Accordingly, we CONCUR IN and ADOPT the EEOC ’s decision. This is
the final order of the Merit Systems Protection Board concurring in and adopting
EEOC’ s decision. See 5 U.S.C. § 7703 (a)(1) .
4
ORDER
¶6 We ORD ER the agency to carry out the EEOC’ s decision by cancel ing it s
removal action and restoring the appellant to duty effective May 16, 2014 . 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.
¶7 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
Manag ement’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to coopera te in good faith in the agency’ s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary in formation 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 af ter the date of this decision.
¶8 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).
¶9 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’ s Order, the a ppellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency di d not fully carry out the Board’ s Order. The petition
should contain specific reasons why the appellan t 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. See 5 C.F.R. § 1201.182 (a).
¶10 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
5
necessary to process payments and a djustments 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 t hat 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 m ust meet the requirements set forth at T itle 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 , 1201.20 2, 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 in itial 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 m ay 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 D ATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
6
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 follow ing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding wh ich cases fall within their
jurisdiction. If you wish to seek review of this final decision, 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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particula r forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with t he U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional in formation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EE OC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination . If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, 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 prepayme nt of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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
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. Court of Appeals for the Fe deral 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,” 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.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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/C ourt_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 DF AS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment .
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severan ce 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 kee p 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 sep arate 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 cas e 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 employ ee 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, FL SA, 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. | HENDERSON_ROSS_DC_0752_14_0797_E_1_FINAL_ORDER_2057406.pdf | 2023-08-08 | null | DC-0752 | NP |
2,815 | https://www.mspb.gov/decisions/nonprecedential/WARREN_TIFFANY_SF_0752_20_0384_I_1_FINAL_ORDER_2057508.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIFFANY WARREN,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -20-0384 -I-1
DATE: August 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chalmers C. Johnson , Esquire, Port Orchard, Washington, for the
appellant.
Peter C. Tunis , Esquire, and Steven R. Hall , Bremerton, Washington, 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 . On petition for review, the agency disputes the
administrative judge’s findings regarding some of the charged misconduct.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 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 eit her the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resultin g 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).
ORDER
¶2 We ORDER the agency to cancel the remo val and retroactively restore the
appellant effective April 10, 2020. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete th is 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 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 f urther 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 p rogress. 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 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 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 tit le 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.
4
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate for um with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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).
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 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 involves a claim of discrimination based on
6
race, color, religion, sex, nation al origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). I f you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review t o the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a me thod requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancemen t Act of 2012 . This 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 secti on
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jur isdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
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/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 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 docum ents/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 Lea ve 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. Th e 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 Cen ter 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 desc ribing
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. (i f 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 Grad e 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. | WARREN_TIFFANY_SF_0752_20_0384_I_1_FINAL_ORDER_2057508.pdf | 2023-08-08 | null | SF-0752 | NP |
2,816 | https://www.mspb.gov/decisions/nonprecedential/TAKEUCHI_PATRICK_SF_0752_17_0288_I_1_FINAL_ORDER_2056480.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATRICK TAKEUCHI,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -17-0288 -I-1
DATE: August 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patrick Takeuchi , Honolulu, Hawaii, pro s e.
James L. Paul , Schofield Barracks, Hawaii, 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 mixed -case removal appeal f or 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 det ermined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decision s. In contrast, a
precedential decision issued as an Opinion and 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 reg ulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 On petition for re view, the appellant argues that he was improperly denied a
hearing, the initial decision is not consistent with required procedures , and the
administrative judge erred in denying his request for interlocutory appeal on the
issue of the timeliness of his ap peal. Petition for Review (PFR) File, Tab 1
at 2-3, 5, 9. Such arguments are unavailing. The administrative judge properly
notified the appellant of his jurisdictional burden, thoroughly set forth th e
convoluted procedural history of this case , and corr ectly concluded that the Board
lacks jurisdiction over this mixed -case removal appeal because the appellant
previously challenged his removal in Federal district court . The appellant was
not entitled to a hearing because he failed to raise nonfrivolous al legation s of
Board jurisdiction entitling him to one. See, e.g. , Yiying Liu v. Department of
Agriculture , 106 M.S.P.R. 178 , ¶ 8 (2007) . Additionally , the administrative judge
properly denied the appellant’s motion for certification of an interlocutory appeal
on the timeliness issue because the administrative judge made no findings
concerning timeliness.
¶3 Finally, to the extent t he appe llant appears to raise arguments concerning
his prior Board appeal of his removal in MSPB Docket Number SF -0752 -12-
3
0687 -I-1, PFR File, Tab 1 at 8-11, Tab 3, such arguments are not properly before
the Board in the instant appeal. The Board previously issue d a Final Order
dismis sing that appeal as untimely, which was affirmed by the U.S. Court of
Appeals fo r the Federal Circuit. See Takeuchi v. Department of the Army , MSPB
Docket No. SF -0752 -12-0687 -I-1, Final Order (Oct. 28, 2013); see also Takeuchi
v. Mer it Systems Protection Board , 566 F. App’x 950 (Fed. Cir. 2014).
¶4 Accordingly, we affirm the initial decision, dismissing the appellant’s
appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not r epresent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limi ts and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your partic ular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such actio n
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver o f any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your r epresentative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If yo u submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20 507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cou rt 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, pe rmanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Cir cuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | TAKEUCHI_PATRICK_SF_0752_17_0288_I_1_FINAL_ORDER_2056480.pdf | 2023-08-04 | null | SF-0752 | NP |
2,817 | https://www.mspb.gov/decisions/nonprecedential/STUART_ANTHONY_S_NY_0842_17_0107_I_1_FINAL_ORDER_2056623.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY S. STUART,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-0842 -17-0107 -I-1
DATE: August 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petiti on for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) concluding that he is not entitled to credit for his military service under
the Federal Employees’ Retirement System (FERS) . Generally, we grant
1 A nonprecedential order is one tha t the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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 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
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify the administrative judge’s analysis regarding
whether the appellant’s retired pay is based on his military service , we AFFIRM
the initial decision.
BACKGROUND
¶2 The appellant performed active -duty military service with the U.S. Navy
during the follo wing time periods: March 25, 1974 –March 22, 1979; March 18,
1981 –March 16, 1984; and July 23, 1985 –April 23, 1991. Initial Appeal File
(IAF), Tab 3 at 30 -32. On April 23, 1991, the appellant was placed on the
Temporary Disability Retired List. Id. at 18, 30. Effective August 1 , 1994, the
Secretary of the Navy determined that the appellant had a permanent disability
rated at 60% disabling, and thus, transferred him to the Permanent Disability
Retired List for which he received retired pay. Id. at 18 -22.
¶3 In addition, the appellant performed Federal civilian service and retired
under FERS on November 28, 2015. IAF, Tab 8 at 36 -39. In a letter dated
March 23, 2016, OPM determined that the appellant could not receive credit for
his military service toward his FERS annuity due to his receipt of military retire d
3
pay. Id. at 15. In a separate letter dated August 24, 2016, OPM informed the
appellant that he must waive his military retire ment pay to obtain credit for his
military service in his FERS retiremen t benefits calculation . Id. at 18-19. The
appellant requested reconsideration of the August 24, 2016 decision, id. at 8-11,
which OPM affirmed in a February 27, 2017 reconsideration decision, id. at 6-7.
¶4 The appellant thereafter filed this Board appeal challenging OPM’s
reconsideration decision, and he requested a hearing. IAF, Tab 1 at 1 -10.
Specifically, he argued that he does not have to waive his military retired pay to
obtain credit for military ser vice under FERS because such pay is based on his
disability and not his years of military service. Id. at 4-8. During a telephonic
status conference, the appellant withdrew his request for a hearing. IAF, Tab 13,
Status Conference Compact Disc.
¶5 Based on the written record, the administrative judge issued an initial
decision affirming OPM’s reconsideration decision. IAF, Tab 15, Initial Decision
(ID) at 1, 4. In particular, she found that the appellant did not prove by
preponderant evidence that he is entitled to credit for his military service toward
his FERS annuity. ID at 4.
¶6 The appellant filed a petition for review. Petition for Review (PFR) File,
Tabs 1 -2. OPM filed a response, PFR File, Tab 5, to which the appellant replied,
PFR File, Tab 7. The Acting Clerk of the Board issued an order directing the
parties to respond on the relevancy of Babakitis v. Office of Personnel
Management , 978 F.2d 693 (Fed. Cir. 1992) , to this case . PFR File, Tab 8. The
appellant has filed a response. PFR File, Tab 9. OPM has not responded.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 Pursuant to 5 U.S.C. § 8411 (c)(1)(B), a Federal emp loyee covered under
FERS generally is entitled to credit, for purposes of computing a basic retirement
annuity, for “each period of military service performed after December 31, 1956,
and before the separation on which title to annuity is based, if a depos it
4
(including interest, if any) is made with respect to such period in accordance with
section 8422(e).”2 Barth v. Office of Personnel Management , 116 M.S.P.R. 123 ,
¶ 9 (2011). However, as detailed below, section 8411(c)(2) provides that, except
under certain circumstances, an employee usually cannot receive both military
and civilian retirement service credit for the same periods. See Babakitis ,
978 F.2d at 695 (observing that the analogous Civil Service Retirement System
(CSRS) provision concern s double -crediting of military service time preceding
civilian service, i.e., counting such military service as part of both a military and
a civilian pension ). Section 8411(c)(2) states the following:
If an employee or Member is awarded retired pay based on any
period of military service, the service of the employee or Member
may not include credit for such period of military service unl ess the
retired pay is awarded —
(A) based on a service -connected disability —
(i) incurred in combat with an enemy of the United States; or
(ii) caused by an instrumentality of war and incurred in line of
duty during a period of war as defined by section 1101 of
title 38;
(B) under chapter 1223 of title 10 (or under chapter 67 of that
title as in effect before the effective date of the Reserve Officer
Personnel Management Act).
5 U.S.C. § 8411 (c)(2 ); see 5 C.F.R. § 842.306 (b) (OPM’s regulation
implementing the statutory provision).
¶8 After considering the appellant’s arguments on review, we discern no
reason to disturb the administ rative judge’s finding that the appellant did not
prove by preponderant evidence that he is entitled to credit for his military
service toward his FERS annuity. ID at 4; see 5 C.F.R. § 1 201.56 (b)(2)(ii)
(providing that an appellant bears the burden of proving his entitlement to
2 “Military service” includes honorable active service in the armed forces. 5 U.S.C.
§ 8401 (31)(A). It is undisputed that the appellant’s military service qualifies under this
definition. IAF, Tab 3 at 30 -32.
5
retirement benefits by a preponderance of the evidence) . In particular, the
appellant reasserts on review his argument that he is not in receipt of retired pay
because he did not retire based on 30 years of military service under 10 U.S.C.
§ 6326 , or after transferring to the Fleet Reserve or Fleet Marine Corps Reserve
under 10 U.S.C. §§ 6330 -6331 .3 PFR File, Tab 1 at 1-2, Tab 2 at 2 -4, Tab 7
at 10; IAF, Tab 14 at 4-5. He further argues that the administrative judge failed
to recognize the difference between military retirement and military disability
retirement. PFR File, Tab 1 at 2, Tab 2 at 3, Tab 7 at 10. To support his
arguments, the appellant has submit ted copies of certain statutory provisions and
excerpts from the Department of Defense Financial Management Regulation
about comput ing retired pay. PFR File, Tab 1 at 4, 8 -15, Tab 2 at 6, 11 -18.4 We
find that these document s and his arguments fail to dis turb the administrative
judge’s finding that he is in receipt of retired pay. ID at 4. Military retired pay
includes retirement pay awarded when a member of the armed forces is retired
based on a permanent physical disability under 10 U.S.C. § 1201 . See 10 U.S.C.
§ 1401 ; see also Morris v. Office of Personnel Management , 39 M.S.P.R. 206,
208 (1988). Here, the record shows that the appellant was awarded retired pay
based on his permanent disability. IAF, Tab 3 at 18 -22. Thus, we find that the
appellant receives retired pay within the meaning of 5 U.S.C. § 8411 (c)(2).
¶9 In addition, t he appellant reasserts on review his claim that he was not
awarded retired pay bas ed on his years of military service because the method
3 Effective February 1, 2019, Congress redesignated t he statutory provisions to which
the appellant cited as 10 U.S.C. § 8326 and 10 U.S.C. §§ 8330 -8331, respectively. John
S. McCain National Defense Author ization Act for Fiscal Year 2019, Pub. L.
No. 115-232, § 807(14), 132 Stat . 1636 (2018).
4 The remaining documentation submitted by the appellant on review was already part
of the record before the administrative judge. Compar e PFR File, Tab 1 at 5 -7, 16-17,
Tab 2 at 7 -10, with IAF, Tab 3 at 14 -15, 18 -19, Tab 11 at 9 -10; see Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980 ) (finding t hat the Board need not
consider evidence that is already a part of the record below because it is not new).
6
used to calculate the amount of his retired pay does not take into account the
length of his military service. PFR File, Tab 1 at 1 -3, Tab 2 at 2 -5, Tab 7 at 8 -10;
IAF, Tab 1 at 4, 6 -7, Tab 3 at 3, 5 -6, Tab 10 at 4 -6. The record reflects that there
are two methods for calculating the appellant’s retired pay, which is based on his
placement on the Permanent Disability Retired List. IAF, Tab 3 at 20 -22.5
Method A is based on the appellant’s 60% disabi lity rating, and Method B is
based on his years of military service. Id. at 21. Both methods use the
appellant’s active duty base pay from the pay bill in effect when he retire d from
the armed forces. Id. at 21, 32. The appellant’s retired pay is calcu lated using
Method A because it yields a higher gross pay amount than Method B. Id.
at 21-22. OPM’s reconsideration decision found that the appellant’s military
service is an integral part of his retired pay because both calculation methods use
his activ e duty base pay in their formulas. IAF, Tab 8 at 7. The administrative
judge acknowledged the appellant’s argument that his retired pay is based on a
percentage of his disability and not on his years of military service, but she found
that the specific m ethod used to calculate his retired pay is irrelevant. ID at 3 -4.
She further found that the record indicates that his retired pay is based on his
military service. ID at 3.
¶10 As follows, we modify the initial decision to clarify the administrative
judge’ s analysis regarding whether the appellant’s retired pay is based on his
military service. In Babakitis , 978 F.2d at 695 -96, the U.S. Court of Appeals for
the Federal Circuit considered as relevant the method used by the U.S. Navy to
calculate the appella nt’s disability retirement annuity in determining whether his
military pension was “based on” an initial period of military service for the
purposes of 5 U.S.C. § 8332 (c)(2). The court held that “ a [military] pension is
5 The explanation provided by the Defense Finance and Accounting Service regarding
the appellant’s retired pay computation is consistent with 10 U.S.C. § 1401 , the
statutory provision providing for the retired pay computation . IAF, Tab 3 at 20 -22.
7
not based on a period of military service merely because it could have been based
on such period,” and that “[i]t must actually be based on such period.” Babakitis ,
978 F.2d at 696. The court rejected OPM’s argument that the U.S. Navy’s use of
the appellant’s pay grade from his initial period of military service in calculating
the amount of disability payment meant that his disability retirement annuity was
“based on” that period. Id. The court concluded that there was no impermissible
double -crediting of the appellant’s initial period of military service because his
disability retirement annuity calculation was “based on” a disability that occurred
during military service after the dat e of his separation from civilian employment,
and the extent of his disability, and not on the total length of his military service.
Id.
¶11 Here, although we find that the administrative judge erred in finding that
the method used to calculate the appellant’ s military retired pay is irrelevant, we
agree with her ultimate finding that his retired pay is based on his military
service. ID at 3 -4; see Panter v. Department of the Air Force , 22 M.S.P.R. 281 ,
282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for revers ing an initial decision). We
acknowledge that the appellant co rrectly asserts that his retired pay is not
calculated under Method B by using his total years of military service. IAF,
Tab 3 at 21 -22. However, the record shows that the appellant retired from the
armed forces based on a disability that occurred during his military service before
his separation from civilian employment. Id. at 18 -19; see 10 U.S.C. § 1201
(providing for military retirement for physical disability). Further, as described
above, the record shows that his award of retired pay is by virtue of his placement
on the Permanent Disability Retired List. Moreover, we find that Babakitis is
distinguishable from the instant appeal because, in that case, the appellant had an
approximately 2 0-year gap between his two periods of military service, and the
U.S. Navy believed that his military pension was based solely on his most recent
military service period that occurred after the date h e separat ed from civilian
8
employment. 978 F. 2d at 694, 696 n.2. Here, however, the appellant’s three
periods of military service were close in time and there is no evidence to suggest
that his military retire d pay was based solely on his most recent period of service.
IAF, Tab 3 at 18-19, 30 -32; see Babakitis , 978 F.2d at 695-96 (observing that
5 U.S.C. § 8332 (c)(2) “clearly contemplates that periods of military service may
be looked at individually” (emphasis in original)). In addition, the appellant
acknowledges on review that his military retirement was based on disabilities that
he acquired while working with hazardous substances during his military service,
and he does not distinguish among his periods of military service. PFR File,
Tab 7 at 13. Therefore, we find that the appellant’s retired pay is “based on” all
his periods of military service within the meaning of 5 U.S.C. § 8411 (c)(2).
¶12 For the first time on review, the appell ant refers to OPM’s CSRS and FERS
Handbook for Personnel and Payroll Offices (1998) (Handbook). PFR File,
Tab 1 at 2, Tab 2 at 3 -4, Tab 7 at 10 -12; Handbook, available at
https://www.opm.gov/retirement -services/publications -forms/csrsfers -handbook/
(last visited Aug. 3, 2021 ). He argues that he does not have to waive retired pay
to receive military service credit under FERS because, as explained in
section 22A3.1 -3 of the Handbook, he “has military service that was not used in
the computation of military retired pay.” PFR File, Tab 7 at 10 -12. Even
considering the Handbook, we find that it does not change the outcome of this
appeal. See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980)
(finding that the Board ge nerally will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence) . Specifically,
section 22A3.1 -3 of the Hand book cross -references section 22A4.1 -1, which
clarifies that the “military service that was not used in the computation of
military retired pay” includes “[e]nlisted service performed as a cadet or
midshipman by an individual who retires as an officer” and “[s]ervice in excess
of 30 years.” We find that the appellant’s military service, during which he
9
developed a disability, is not similar to those types of military service described
in the Handbook. Thus, we find that the Handbook does not conflict with
5 U.S.C. § 8411 (c), or our analysis of that statutory provision. See Warren v.
Department of Transportation , 116 M.S.P.R . 554, ¶ 7 n.2 (2011) ( stating that the
Handbook lacks the force of law but is entitled to deference in proportion to its
“power to persuade” ), aff’d per curiam , 493 F. App’x 105 (Fed. Cir. 2013).
¶13 Moreover, we discern no reason to disturb the administrative judge’s
finding that the appellant does not dispute that he does not meet one of the
statutory exceptions under 5 U.S.C. § 8411 (c)(2)(A) -(B). ID at 3. The appellant
argues on review that the administrative judge erred by not considering whether
he meets an exception; however, he acknowledges that the record does not show
that he incurred a disability in combat or caused by an instrumentality of war.
PFR File, Tab 2 at 5, Tab 7 at 12 -13; IAF, Tab 8 at 23 -26. He further asserts that
public policy should provide an exception for veterans like him who become
disabl ed during their military service. PFR File, Tab 7 at 12 -13. We find that
these arguments fail to prove that he meets a statutory exception to the general
prohibition of double -crediting of military service under both military and
civilian pensions. See 5 C.F.R. § 1201.56 (b)(2)(ii).
¶14 Accordingly, we affirm the initial decision except as modified herein.
NOTICE OF APPEAL RIG HTS6
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice 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
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).
If you submit a petition for review to the U.S. Court of Appeals 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.
11
If you 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 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 this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) 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 rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competen t 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 a ny court of appeals of competent jurisdiction expired on
13
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STUART_ANTHONY_S_NY_0842_17_0107_I_1_FINAL_ORDER_2056623.pdf | 2023-08-04 | null | NY-0842 | NP |
2,818 | https://www.mspb.gov/decisions/nonprecedential/THEODORE_BERLIN_J_PH_0752_16_0303_I_1_FINAL_ORDER_2056650.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BERLIN J. THEODORE,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
PH-0752 -16-0303 -I-1
DATE: August 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Berlin J. Theodore , Abington, Pennsylvania, pro se.
Zlatko Jurisic , 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 petit ion for review of the initial decision, which
affirmed the agency’s removal action . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decisio n 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
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
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 cl osed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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 Supply Systems Analyst, GS -2003 -14, at the Defense
Logistics Agency in Philadelphia, Pen nsylvania . Initial Appeal File (IAF), Tab 5
at 15 . The agency removed him from F ederal service based on two charges:
(1) absence without leave (AWOL) ; and (2) unprofessional conduct. Id. at 83-88,
95-98.
¶3 The first charge pertained to the appellant’s January 4, 2016 request for
140 hours of leave for the period from January 25 through February 26, 2016,
which comprised 40 hours of annual leave; 40 hours of sick leave ; and 60 hours
of leave w ithout pay (LWOP). Id. at 39, 63, 83. The appellant failed to respond
adequately to multiple requests from his immediate supervisor to provide a re ason
for the extended period of leave and to submit medical documentation supporting
the requested sick leave . Id. at 36-39, 83-85. Instead, the appellant told h is
supervisor by telephone that he was not comfortable discussing personal matters
with her “due to the toxic nature of [their] relationship ,” and that he would take
LWOP for the entire period he requested if she would not grant his leave request.
Id. at 37. The appellant o pined that his supervisor was harassing him and abusing
3
her authority , and he stated that he was prepared to discuss issues related to the
requested leave , which he asserted fell under the Family and Medical L eave Act
of 1993 (FMLA) , only with another individual with the authority to resolve the
matter . Id.
¶4 On January 20, 2016, the appellant submitted a new FMLA leave request
for the entire period from January 25 through February 26, 2016. Id. at 37, 64.
His supervisor replied, acknowledging the appellant’s invoking the FMLA, and
explain ing that the appellant had to provide administratively acceptable medical
documentation supporting his request for leave under the FMLA before it could
be approved. Id. at 36 -37. She gave the appellant 15 calendar days from
January 21, 2016 , in which to provide administratively acceptable medical
documentation. Id. at 36. She a lso explained that administratively acceptable
medical documentation must include the follow ing: (1) the date the serious
health condition commence d; (2) the probable duration of the condition, or a
certification that the condition is a chronic or continuing condition with an
unknown duration , and if episodic, the likely duration and frequency o f the
episodes of incapacity ; and (3) the appropriate medical facts concerning the
condition, including information on incapacitation, examination, or treatment that
may be required. Id.
¶5 The appellant submitted a completed FMLA certification form
(Form WH-380-E) dated January 21, 2016. Id. at 66 -70. The certification
reflected treatment dates in 2009, 2010, 2014, and 2015 for several ailments , and
noted that the appellant would be unable to perform his job functions while
suffering from such conditions . Id. at 67. The certification also noted that the
appellant’s condition would require follow -up treatment and that episodic
flare -ups were possible, making it necessary for him to be absent from work up to
three times per week for a duration of 1 ½ hours per episode. Id. at 68. The
appellant’s absence from work began on January 25, 2016. IAF, Tab 1 at 12, 45,
53, 56, 60.
4
¶6 On February 4, 2016, the appellant’s supervisor responded by email and by
letter mailed to the appellant’s residenc e. IAF, Tab 5 at 70-72. S he
acknowledg ed recei ving the health certification form , but explain ed that it did not
call for the 4 consecutive weeks of FMLA leave that the appellant had requested,
and instead support ed only periodic leave , as detailed above. Id. at 70, 72.
However, s he provisionally granted the appellant’s request for FMLA leave and
gave him another 15 days in which to supplement his request with
administratively acceptable medical documentation supporting the full 4-week
absence he requested . Id.
¶7 On March 4, 2016, the supervisor sent the appellant a nother letter by mail
and by email informing him that he would be charged AWOL for the period of his
absence from January 25, 2016, until his return to duty because he had not
responded to her February 2 016 letter. Id. at 73 -76. On March 7, 2016, the
appellant informed his supervisor by telephon e that he had received her March 4,
2016 letter and was undergoing additional medical testing. Id. at 77. The
supervisor’s contemporaneous notes reflect that s he reiterated to him that his
documentation did not support the 4 weeks of FMLA leave that he had requested
and that , as a result , he remained in an AWOL status . Id. The supervisor’s notes
state that , when she asked the appellant when he would be returning to work, he
simply replied, “I’m invoking FMLA.” Id. The supervisor again reminded the
appellant to submit administratively acceptable documentation supporting his
absence , and that he would remain in AWOL status unless he did so . Id. He
responded by again invok ing the FMLA and h anging up the telephone. Id.
¶8 The appellant returned to work on March 14, 2016, submitting a March 10,
2016 letter from The Neurology Group that stated that he had been under doctors’
care and evaluation since February 29, 2016. Id. at 78, 85. The letter further
declare d that the appellant was to avoid “stressful situations or stressful
environment [s]” when he returned to work and that he might need additional
intermittent da ys off to be complete ly evaluated . Id. The agency det ermined that
5
the letter was administratively acceptable to support his absence from
February 29 through March 11, 2016, and approved his application for FMLA
leave for that period. Id. at 79 , 85. How ever, for the period from January 25
through February 26, 2016, the agency changed the appellant’s provisional grant
of FMLA leave to AWOL. Id. at 85.
¶9 The agency then proposed the appellant’s removal based on charges of
AWOL and unprofessional conduct . Id. at 83-88. The latter charge pertain ed to
his abrupt ly terminatin g the March 7 , 2016 telephone call with his supervisor . Id.
at 83. The agency removed the appellant, and he filed this Board appeal. Id.
at 95-98; IAF, Tab 1. He did not request a hearing. IAF, Tab 1 at 1. During the
proceeding before the administrative judge , the appellant did not dispute the
substance of the charges, and instead he raise d whistleblower retaliation as an
affirmative defense . Id. at 2; IAF , Tab 9. He a lso claimed harassment and
harmful procedural error in the agency’s decision to remove him, but as the
administrative judge explained , the appellant did not specify the procedural defect
or the allegedly harassing act ions related to his removal.2 IAF, Tab 1 at 2 ;
Tab 12, Initial Decision (ID) at 9 .
¶10 The administrative judge sustained both charges , found that the agency
established nexus , and determined that the penalty was reasonable . ID at 1 1-19.
The administrative judge also fo und that the appellant failed to prove his
affirmative defenses of harmful procedural error and retaliation for
whistleblowing. ID at 19 -22.
2 The appellant’s harassment claim appears related to the agency’s requirement that he
present administratively acceptable medical documentation supporting his request for
FMLA leave, IAF, Tab 5 at 3 7, and also to his disagreements with agency officials
regarding earlier leave requests, IAF, Tab 9 at 68 -79. The appellant d oes not
specifically assert harassment or harmful procedural error on review.
6
ANALYSIS
The administrative judge correctly concluded that the agency met its burden of
proof as to the charges .
¶11 On review, the appellant asserts that the administrative judge erroneously
applied the law to the facts of this case and reached incorrect conclusions.
Petition for Review ( PFR ) File, Tab 1 at 6 -7; 5 C.F.R. § 120 1.115 (b). He also
asserts that the administrative judge should have found that he submitted
sufficient medical documentation to justify granting his FMLA leave request .
PFR File, Tab 1 at 6 -7.3
¶12 We have reviewed the administrative judge’s analysis and conclude that he
correctly found that the agency met its burden to prove by preponderant evidence
the charges of AWOL and unprofessional conduct. ID at 10, 11 -17; see 5 C.F.R .
§ 1201.56 (b)(1)(ii). At the outset, we note that the administrative judge correctly
indicated that the appellant did not deny the misconduct underlying the removal
action. ID at 10. The record reflects that the agency gave the appellant multiple
opportunities in which to present administratively acceptable medical
documentation, including two opportunities after he invoked the right to take
leave under the FMLA. IAF, Tab 5 at 36 -49, 63 -64, 66 -70, 72 -74, 77 -79, 83 -85.
Altho ugh he ultimately presented documentation that supported his FMLA leave
request for the latter part of his absence, he failed to present documentation
supporting his leave request fo r January 25 through February 2 6, 2016. Id.
at 78-79, 85.
¶13 When an employe e request s leave to cover his absences, an AWOL charge
will be sustained only if the agency establishes that his requests were properly
denied. Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 28 (2015) ,
overruled on other grounds by Pridgen v. Office of Management and Budget ,
3 On review, the appellant does not challenge the ad ministrative judge’s determination
that the agency proved the second charge of unprofessional conduct, ID at 15 -17, and
we find no reason to disturb that finding.
7
2022 MSPB 31 , ¶¶ 23 -25. The agency may require an employee who requests
FMLA leave to provide administratively acceptable documentation supporting the
request. 5 U.S.C. § 6383 (a); 5 C.F.R. § 630.1208 . Such documentation must
include the following: (1) the date the serious heal th condition commenced;
(2) the probable duration of the serious health condition, or a statement
specifying that the serious health condition is a chronic or continuing condition
with an unknown duration, whether the patient is presently incapacitated, an d the
likely duration and frequency of episodes of incapacity; and (3) the appropriate
medical facts within the knowledge of the health care provider regarding the
serious health condition, including a general statement as to the incapacitation,
examinatio n, or treatment that may be required by a health care provider.
5 C.F.R. § 630.1208 (b)(1) -(3). Documentation that fails to inform the agency of
such information is administratively ins ufficient to support a request for medical
leave. Lawley v. Department of the Treasury , 84 M.S.P.R. 253 , ¶ 23 (1999).
Here, we find that the appellant’s documentation did not provide sufficient
information to support his absences prior to February 29, 2016. We thus agree
with the administrative judge that t he agency proved the charge of AWOL for a
period of approximately 4 weeks from January 25 through February 26, 2016.
IAF, Tab 5 at 85.
The administrative judge correctly found that the appellant failed to prove his
allegation of whistleblowing.
¶14 On review, the appellant asserts that the administrative judge failed to
recognize the pattern of whistleblowing retaliation that predated the events
immediately leading to his removal. PFR File, Tab 1 at 6. The agency’s
retaliatory actions, he alleges, include changing his telework schedule,
transferring him to Philadelphia, and denyi ng his leave requests. Id.; IAF, Tab 9
at 13 -15. As for the appellant’s whistleblowing claim, h e stated that his first
alleged disclosure pertained to a suggestion he made to the agency’s telework
coordinator in November 2014 regarding ways in which the agency could improve
8
its telework readiness reporting information. IAF, Tab 9 at 5, 20-25. His
suggestions were forwarded to the appropriate personnel but were not adopted.
Id. at 5. A few days later, his then -supervisor denied his request for an addit ional
telework day each week, and he also received notice that he was no longer
eligible for situational telework. Id. at 5-6, 29 -31. At the time, he worked at F ort
Belvoir, Virginia, but telecommuted from his family home in Philadelphia,
Pennsylvania, o n Mondays and Fridays. Id. at 5-6. The supervisor advised the
appellant that he could transfer to a position in Philadelphia and he did so. Id.
at 6. Several weeks after the transfer, the appellant came under new second -level
supervision. Id. at 7-8; IAF, Tab 11 at 7. Thereafter, he alleged, the agency
retaliated against him because of this and other disclosures when his new
second -level supervisor denied his leave requests and rescinded his existing
situational telework agreement. IAF, Tab 9 at 9 -11, 13-15, 65 -79.
¶15 The appellant’s second alleged disclosure concerned his assessment of the
agency’s audit readiness efforts regarding the Vendor Managed Inventory (VMI) .
Id. at 7-9, Attachment D . The appellant alleged to have made this disclosure to
various agency officials between January and March 2015, including his new
second -level supervisor.4 Id.; IAF, Tab 11 at 7 -10. The agency contended that
the appellant’s assessment was neither new nor controversial and that it did not
reveal any potential ly embarrassing information about agency operations and
systems. IAF, Tab 11 at 8-9.
¶16 The administrative judge found that the appellant’s first alleged disclosure
amounted to discussin g generally a proposed policy that the agency rejected in
favor of a n existing policy. ID at 21 -22. As for the second alleged disclosure,
the administrative judge found that the appellant could not have reasonably
believed he was disclos ing information within one of the categories of
4 The second -level supervisor was unable to determine if she had received this item
when the appellant claimed to have sent it. IAF, Tab 11 at 7.
9
wrongdoing set forth in the statute. ID at 22; see 5 U.S.C. § 2302 (b)(8). The
administrative judge thus found that the appellant did not make a protected
disclosure under the statute. ID at 2 0-22.
¶17 We agree with the administrative judge’s findings. The appellant, by
proposing a new policy about potentially improving telework reporting
information and a new plan dealing with assessing the agency’s audit readiness
efforts concerning the VMI section of the agency’s inventory reconciliation
effort, seemed dissatisfied with the agency’s existing policies and/or plans on
those issues. However, his purely subjective allegations of wrongdoing are
insufficient to constitute a reasonable belief that the agenc y official’s actions here
regarding those policies and/or plans represent an abuse of authority, gross
mismanagement, a gross waste of funds, or a violation of law, rule, or regulation.
Lachance v. White , 174 F.3d 1378 , 1381 (Fed. Cir. 1999); see Rebstock
Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661 , ¶ 12
(2015) (holding that vague, conclusory, and unsupported allegations do not
satisfy the Board’s nonfrivolous pleading standard). When, as here, an alleged
whistleblower is merely expressing disagreement with fairly debatabl e policy
decisions, or decisions plainly within managerial discretion, his disclosures do
not fall within those defined as protected under 5 U.S.C. § 2302 (b)(8). Cf.
O’Donnell v. Department of Agr iculture , 120 M.S.P.R. 94 , ¶ 14 (2013) (holding
that the appellant’s alleged protected disclosure was “exactly the type of fairly
debatable policy dispute that does not constitute whistleblowing”), aff’d , 561 F.
App’ x 926 (Fed. Cir. 2014).5
The Board will not consider the appellant’s new argument on review.
¶18 The appellant does not challenge on review the administrative judge’s
finding that he failed to make protected disclosures. Instead , the appellant asserts
5 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.
10
that he is providing new and material evidence , which he alleges shows that he
made an additional disclosure or disclosures as early as April 2012 of which the
deciding o fficial was aware. PFR File, Tab 1 at 7 ; see 5 C.F.R. § 1201.115 (d).
The appellant alleges that these disclosures would have embarrassed the agency
and, because he made them, his immediate supervisors were transferred to other
positions, and he was placed under a new second -level supervisor . PFR File,
Tab 1 at 8-9. He asserts that his new second -level supervisor “was then allowed
to retaliate and [haras s him] leading to his dismissal ” and to prevent him from
making further disclosures to the agency Inspector General. Id.
¶19 The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). The materials that the
appellant su bmitted on review include email messages dated between March 13,
2012, and March 27, 2014 ; a memorandum entitled “SITREP for Audit Readiness
Support,” dated September 3, 2015 ; an undated organization al chart ; and an
undated outline labeled “Found in March.” PFR File, Tab 1 at 14-30. These
documents appear to pertain to an earlier disclosure or disclosures that the
appellant did not raise below during the proceeding s before the administrative
judge . Id. at 7-11. All of the se items predate the July 7, 2016 close of the record.
IAF, Tab 7 at 1. The appellant has not alleged that the y were unavailable to him
despite his due diligence before the record closed , and indeed, he originat ed or
received the ema il messages he submitted with his petition for review . PFR File,
Tab 1 at 14-20. We thus decline to consider his new argument and evidence on
review .6
6 Additionally, the appellant submitted on review a partial copy of a pleading he filed
while th is appeal was pending before the administrative judge. Compare PFR File,
Tab 1 at 31 -44, with IAF, Tab 9 at 4 -18. The Board does not consider such submissions
11
The administrative judge properly determined that the penalty of removal was
warranted and promotes the efficiency of the service.
¶20 Finally, the appellant argues that the administrative judge “abused his
discretion in deciding in favor of the agency” and in determining that removal
was an appropriate penalty. PFR File, Tab 1.
¶21 Generally, choosing a penalty f or employee misconduct is left to the
agency’s discretion. Lachance v. Devall , 178 F.3d 1246 , 1251 -52 (Fed. Cir.
1999). The Board lacks the authority to determine what penalty the agency
should have selected. Instea d, the Board must assess if the agency balanced the
relevant Douglas factors7 and selected a penalty that was within the “bounds of
reasonableness.” Hayes v. Department of the Navy , 727 F.2d 1535 , 1540 (Fed.
Cir. 1984). The Board will review an agency -imposed penalty only to determine
if the agency considered all the relevant factors and exercised management
discretion within to lerable limits of reasonableness. Douglas v. Veterans
Administration , 5 M.S.P.R. 280, 306 (1981).
¶22 In sustaining the removal, the admi nistrative judge noted that the deciding
official appropriately considered all of the Douglas factors in assessing which
penalty to impose. ID at 18. The administrative judge reviewed the
circumstances of the four comparators, and noted that the agency r emoved two
employees for shorter periods of AWOL than the amount of AWOL accrued by
the appellant and gave lesser penalties to two employees who had substantially
less AWOL than the appellant and that, as to one of those employees, he had no
prior discipli nary record, unlike the appellant. ID at 18 -19. The administrative
judge concluded that removal was justified here, particularly given that the Board
to be new evidence. Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980)
(holding that e vidence that is already a part of the record is not new).
7 In Douglas v. Veterans Adminis tration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board
identified factors that are relevant to consider in determining the appropriateness of a
penalty.
12
has consistently upheld removals for absences as long as the appellant’s. ID
at 19. We find that, beca use the agency considered and balanced all of the
relevant Douglas factors, the administrative judge did not err in finding that the
removal penalty was reasonable. Given the totality of the circumstances, we find
that the administrative judge did not abu se his discretion in affirming the
appellant’s removal for the sustained misconduct.
¶23 Accordingly, for the foregoing reasons, we affirm the administrative judge’s
initial decision.
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 determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer 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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
14
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, nation al origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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:
15
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 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.9 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).
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
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction .
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants 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 | THEODORE_BERLIN_J_PH_0752_16_0303_I_1_FINAL_ORDER_2056650.pdf | 2023-08-04 | null | PH-0752 | NP |
2,819 | https://www.mspb.gov/decisions/nonprecedential/THOMAS_TROY_A_AT_0752_21_0259_I_1_FINAL_ORDER_2056689.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TROY A. THOMAS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -21-0259 -I-1
DATE: August 4, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephan B. Caldwell , Esquire , Riverdale, Georgia, for the appellant.
Giustina Simon and Mary Rae Dudley , Esquire, Fort Gordon, 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
mitigated the appellant’s removal to a 15 -day suspension without pay.2 On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 The appellant has filed a motion to dismiss the agency’s petition for review, arguing,
among other things, that it failed to comply with the administrative judge’s interim
2
petition for review, the agency argues that the administrative judge erred in
finding that it did not prove one of its two charges and that the penalty of removal
was appropri ate and reasonable. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulati on or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
relief order because, after he was reinstated on interim relief, the agency transferred
him to a different position. PFR File, Tab 4 at 8 -10. When an administrative judge
orde rs interim relief under 5 U.S.C. § 7701 (b)(2)(A), an agency, in its petition for
review, must certify that it has complied with the interim relief order either by
providing the required interim rel ief or showing that it determined that the appellant’s
return to, or presence in, the workplace would be unduly disruptive. 5 C.F.R.
§ 1201.116 (a). If the agency determines that the ap pellant’s return to the workplace
would be unduly disruptive, the agency must nevertheless provide the appellant the pay,
compensation, and all other benefits during the interim relief period. 5 U.S. C.
§ 7701 (b)(2)(B). Here, although the agency reinstated the appellant to the position of
Police Officer, PFR File, Tab 7 at 5, it soon thereafter detailed him to a different
position in a different unit, PFR File, Tab 4 at 13. Although the agency did not
explicitly state that it was making an undue disruption determination, the Board will
infer such a determination if the agency can show that it had a strong overriding interest
or compelling reason for assigning duties other than those assigned prior to the
appellant’s separation. See Lednar v. Social Security Administration , 82 M.S.P.R. 364 ,
¶ 9 (1999 ); see also Haebe v. Department of Justice , 81 M.S.P.R. 167 , ¶14 (1999), rev’d
on other grounds , 288 F.3d 1288 (Fed. Cir. 2002). In this case, the agency’s reason for
reassigning the appellant is his decertification from the Individual Reliability Program
(IRP) —a condition of employment required for Patrol Police Officers. PF R File, Tab 4
at 8-9, Tab 5 at 6 -7. Although the appellant argues that the agency did not provide the
basis for the latest IRP decertification, PFR File, Tab 4 at 7, the Board lacks the
authority to review whether the agency’s decision to reassign the app ellant on that basis
was made in good faith, King v. Jerome , 42 F.3d 1371 , 1374 -75 (Fed. Cir. 1994).
Rather, the Board’s authority is restricted to deciding whether an undue disruption
determination was made when required, and whether the appellant is receiving the
appropriate pay and benefits. Id. The record establishes that the agency made an
implicit undue disruption determination, and the appellant has not alleged that h e is not
receiving all the pay and benefits of his original position. Accordingly, we find that the
agency has complied with the administrative judge’s interim relief order, and we deny
the appellant’s motion to dismiss the agency’s petition for review.
3
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201. 115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the peti tion for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED to address the administrative judge’s disparate penalty analysis, we
AFFIRM the initial decision .
¶2 The agency alleged that the appellant submitted incorrect time and
attendance records and that those submissions ultimately lead to his
decertification from the agency’s Individual Reliability Program (IRP), which is a
required certification for Patr ol Police Officers such as the appellant. Initial
Appeal File (IAF), Tab 22 at 149. Based on this conduct, the agency removed the
appellant based on charges of conduct unbecoming a law enforcement officer
(failure to properly maintain time and attendance records) and failure to maintain
a condition of employment. Id. The appellant appealed his removal to the Board,
and, after holding a hearing, the administrative judge issued an initial decision
mitigating the removal to a 15 -day suspension without pay. IAF, Tab 1, Tab 46,
Initial Decision (ID).
¶3 In considering the conduct unbecoming a law enforcement officer charge,
the administrative judge correctly noted that the agency’s allegations were of
inaccurate time records and that it need not prove the s pecific intent required of a
falsification charge. ID at 5 (citing Fernandez v. Department of Agriculture ,
95 M.S.P.R. 63 (2003)) . After considering testimony from, among others, an
agency investigator, who explained that he did not find that the appellant falsified
his timecards, but rather, that the appellant did not ensure that his entered time
was accurate, the administrative j udge correctly found that the agency proved by
4
preponderant evidence that the appellant failed to properly maintain his time and
attendance records, and he sustained the charge. ID at 10.
¶4 In considering the failure to maintain a condition of employment charge,
which concerns the appellant’s decertification from the IRP, the administrative
judge appropriately considered the merits of the agency’s decision to decertify the
appellant from the IRP. ID at 10 -14. In doing so, he discussed an agency
regulatio n that requires the agency to use a list of “reliability factors” in making a
certification determination, and he accurately observed that the record contains no
evidence of the agency’s application of these factors. ID at 11 -12. Further, the
administrat ive judge also correctly observed that the official responsible for
decertifying the appellant from the IRP, who had concluded that the appellant’s
conduct constituted fraud, failed to explain why he disagreed with the results of
two agency investigations which concluded that the appellant’s actions were
negligent and not fraudulent. ID at 12 -13. Finally, after a well -reasoned analysis
of the evidence, the administrative judge appropriately concluded that the agency
failed to show by preponderant evidence that the appellant falsified his timecards
or engaged in fraud. ID at 12-14. In the absence of a showing of fraud or the
application of “reliability factors” as set forth by agency regulation, the
administrative judge appropriately found that the agency failed to prove the basis
of the appellant’s decertification from the IRP, and, ultimately, the charge of
failure to maintain a condition of employment. ID at 14. The agency’s
arguments on review do not provide a basis to disturb these findings.
¶5 Becaus e the administrative judge did not sustain all of the charges, he
considered whether mitigation of the penalty of removal was appropriate. ID
at 17-21 (citing Suggs v. Department of Veterans Affairs , 113 M.S.P.R. 671 , ¶ 6
(2010), aff’d , 415 F. App’x 240 (Fed. Cir. 2011)). In doing so, he correctly
observed that the deciding official stated that the penalty selection was largely
based on a determination that the appellant had falsified his timecards. ID at 19.
Explaining that the selected penalty should reflect only the proven level of
5
impropriety and reiterating that the agency failed to prove falsification, the
administrative judge correctly found that the chosen penalty of removal was
“based on a higher level of impropriety than it was able to prove.” ID at 19.
Accordingly, he mitigated the penalty of removal to a 15 -day suspension without
pay. ID at 21. We discern no error in this decision.3 See Raco v. Social Security
Administration , 117 M.S.P.R. 1 , ¶¶ 14 -20 (2011) (finding that a 14 -day
suspension, rather than removal, was the maximum reasonable penalty for a
sustained charge of conduct unbecoming a Federal employee based on 22 time
and attendance discrepancies when the appellant had 20 years of service and
expressed remorse).
¶6 In reaching our conclusion, w e note that the administrative judge relied in
part on a disparate penalty analysis in mitigating the penalty , and cited to the
standard set forth in Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657
(2010) . ID at 19 -21. The administrative judge found that other officers had far
more days and hours of unsupported work hours than the appellant, yet were not
disciplined. ID at 20. The administrative judge found that the “evidence raises
an inference of disparate penalties because all of the police officers were within
the same Division, many fell under [the appellant’s primary supervisor’s ]
supervision, and all fall under the authority of the deciding official.” ID at 21.
¶7 In Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 14, the Board overruled
Lewis , finding that the relevant inquiry is whether the agency knowingly and
unjustifiably treated employees differently. The Board also held that in most
cases, employees from another work unit or superviso ry chain will not be proper
3 In the administrative judge’s penalty discussion, he cited to Hilliard v. U.S. Postal
Service , 111 M.S.P.R. 634 (2009), aff’d , 403 F. App’x 504 (Fed. Cir. 2010). ID at 21.
However, that case is a split -vote decision with separate opinions, and thus, it does not
have any precedential value. Nonetheless, the proposition for which it was cited —that
the maximum reasonable penalty fo r charges similar to those at issue here is a
suspension —is supported elsewhere. See Raco v. Social Security Administration ,
117 M.S.P .R. 1 , ¶¶ 14 -20 (2011).
6
comparators. Id., ¶ 13. Here, even under Singh , the administrative judge
correctly relied upon the comparators in question because they engaged in the
same or similar offenses and were from the same work unit or supervisory ch ain.
The agency , therefore , knowingly and unjustifiably treated employees differently ,
and the administrative judge properly concluded that the consistency of the
penalty with those imposed upon other employees for the same or similar offenses
was one of the factors warranting mitigation of the penalty. See id. , ¶ 18.
ORDER
¶8 We ORDER the agency to cancel the appellant’s February 21, 2021 removal
and substitute in its place a 15 -day suspension without pay. The agency must
complete this action no later than 20 days after the date of this decision. See Kerr
v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984).
¶9 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations , no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other be nefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶10 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Boa rd’s Order and of the actions it has
taken to carry out the Bo ard’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶11 No la ter 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
believes that the agen cy 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 agen cy. 5 C.F.R. § 1201.182 (a).
¶12 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 pay ments 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 that issued
the initial decision on your appeal.
8
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final dec ision 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 th eir jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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).
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 i n any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.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
Opportu nity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may 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).
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
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 jurisd iction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
for Merit Systems Protection Board appellants before the 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 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/adju stments 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 accorda nce 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 prov ide 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. | THOMAS_TROY_A_AT_0752_21_0259_I_1_FINAL_ORDER_2056689.pdf | 2023-08-04 | null | AT-0752 | NP |
2,820 | https://www.mspb.gov/decisions/nonprecedential/ZYGMUNT_KEVIN_RAY_PH_0752_15_0292_B_1_FINAL_ORDER_2056271.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEVIN RAY ZYGMUNT,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
PH-0752 -15-0292 -B-1
DATE: August 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan L. Kruger , Esquire, Washington, D.C., for the appellant.
Courtney Hatcher , Philadelphia , Pennsylvania, for the agency.
Kimberly Miller , Mechanicsburg, Pennsylvania, 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 remand initial decision,
which found that he failed to prove his affirmative defense of reprisal for
whistleblowing . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
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
materi al evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Exce pt as expressly M ODIFIED by
this Final Order reassessing the administrative judge ’s analysis of the factors set
forth in Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir.
1999), we AFFIRM the remand initial decision.
BACKGROUND
¶2 The agency proposed to suspend the appellant for 30 days, which the
deciding official reduced to a 15 -day suspension beginning in March 2015, for
failure to carry out a work assi gnment, disruptive beh avior, and careless
workmanship. Zygmunt v. Department of the Navy , MSPB Docket No. PH -0752 -
15-0292 -I-1, Initial Appeal File (IAF), Tab 7 at 22-25, 71-73. The appellant filed
a Board appeal. IAF, Tab 1. On appeal, he alleged that the agency suspended
him in retaliation for making protected disclosures . IAF, Tab 41 at 1. First, he
alleged that he reported the theft of G overnment property to a work lead in the
summer of 2012. IAF, Hearing Transc ript (HT) at 14-17 (testimony of the
appellant) . Specifically, he reported that he observed a coworker use an
agency -owned forklift to load an industrial refrigerator and an industrial mixer
onto his personal vehicle and drive off site. Id. Second , he alleged that he
reported to management on November 13, 2013, and in mid -September 2014, that
3
he was being subjected to a hostile work environment. Id. at 17 -26. Third, he
alleged that he reported various safety concerns to the agency on
November 18-19, 2014, including, inter alia, issues concerning fire alarms, fire
doors, unsecured racks , and electrical hazards . Id. at 26 -29.
¶3 During the course of the appeal, the agency rescinded the suspension action
and returned the appellant to the status quo ante. IAF, Tab 26 . Although the
appellant did not dispute that he was returned to the status quo ante, the
administrative j udge held a hearing based on her finding that the appellant made a
nonfrivolous claim of retaliation for whistleblowing under the Whistleblower
Protection Enhan cement Act of 2012 (WPEA) , Pub. L. No. 112-199, 126 Stat.
1465 . IAF, Tab 47, Initial Decision (ID) at 1-2. After holding the hearing, she
issued an initial decision finding that the appellant failed to prove his
whistleblowing reprisal claim and denying his request for corrective action. ID
at 2, 14. The administrative judge concluded that the appellant made three
protected disclosures before the agency issued the notice proposing to suspend
him and that the timing of his disclosures relative to the age ncy’s suspension
action satisfied the timing part of the knowledge /timing test. ID at 5 -14.
However, she also found that the appellant did not prove that his protected
disclosures were a contributing factor in the agency ’s decision to suspend him
because he failed to establish the kno wledge element of the knowledge /timing
test. ID at 13-14.
¶4 The appella nt filed a petition for review and the Board issued a Remand
Order , which affirmed the administrative judge ’s conclusion that the appellant
made three protected disclosures but disagreed with her finding that the deciding
official lacked knowledge of the disclosures . Zygmunt v. Department of the Navy ,
MSPB Docket No. PH -0752 -15-0292 -I-1, Remand Order , ¶¶ 3, 5, 7-10 (May 13,
2016) . The Board found that th e appellant made a prima facie case of
whistleblower reprisal because he proved, under the knowledge /timing test, that
his protected disclosures were a contributing factor in his suspension. Id.,
4
¶¶ 10-12. Based on this finding, the Board remanded the appeal for the
administrative judge to determine whether the agency proved by clear and
convincing evidence that it would have suspended the appellant absent his
protected disclosures. Id., ¶¶ 12-13.
¶5 In the remand initial decision, the administrative judge evaluated the factors
set forth in Carr and found that the agency met its burden . Zygmunt v.
Department of the Navy , MSPB Docket No. PH -0752 -15-0292 -B-1, Remand File ,
Tab 2, Remand Initial Decision ( RID) at 3-12; see Carr , 185 F.3d at 1323 . Based
on this finding, the administrative judge denied the appellant ’s whistleblower
reprisal affirmative defense . RID at 11-12.
¶6 The appellant has filed a petition for review in which he disagrees with the
administrative judge ’s findings on the Carr factors . Remand Petition for Review
(RPFR) File, Tab 3. The agency has filed a response in opposition to his petition,
and the appellant has replied. RPFR File, Tabs 5 -6.
DISCUS SION OF ARGUMENTS ON REVIEW
¶7 As set forth in the Board ’s Remand Order, the appellant proved his prima
facie case of whistleblower reprisal. R emand Order , ¶¶ 10-12. The b urden of
persuasion then shifted to the agency to show by clear and convincing evidenc e
that it would have taken the same personnel act ion absent the appellant’s
protected disclosures .2 Ayers v. Department of the Army , 123 M.S.P.R 11, ¶ 12
(2015); Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 14 (2015) ; see
5 U.S.C. § 1221 (e)(2). For the reasons explained below, we agree with the
administrative judge that the agency met its burden .
2 We have considered the appellant’s additional argument that the administrative judge
erroneously shifted the burden of proof to him, based on her finding, inter alia , that he
presented no evidence that any agency of ficial had motive to retaliate against him.
RPFR File, Tab 3 at 6 -7, 10. We disagree. The administrative judge correctly stated
that the burden of proof remained on the agency to prove by clear and convincing
evidence that it would have taken the same a ction against the appellant absent his
whistleb lowing disclosures. RID at 3.
5
¶8 Clear and convincing evidence is that measure or degree of proof that
produces in the mind of the trier of fact a firm belief as to the allegations sought
to be established. Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285 ,
¶ 17 (2013). In determining whether an agency has met this burden and
successfully rebutted an employee ’s prima facie case by demonstrating
independent causation , the Board will consider the following nonexclusive
factors: (1) the strength of the agency ’s evidence in support of its action; (2) the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. See Miller v. Department of Justice , 842 F.3d 1252 ,
1257 (Fed. Cir. 2016) (citing Carr, 185 F.3d at 1323 ). The Board does not view
these factors as discrete elements, each of which the agency must prove by clear
and convincing evidence. Lu v. Department of Homeland Security , 122 M.S.P.R.
335, ¶ 7 (2015). Rather, the Board will w eigh the factors together to determine
whether the evidence is cl ear and convincing as a whole . Id.
The administrative judge properly found that the agency ’s evidence in support of
its suspension action is strong .
¶9 Regarding the str ength of the agenc y’s evidence in support of the
suspension action, including the hearing testimony of the appellant and the
agency ’s witnesses, the record reflects the following: (1) the appellant admittedly
failed to carry out a work as signment, which the agency claimed delayed the
shipment of nuclear reactor materials; (2) he engaged in disruptive behavior by
admi ttedly using profanity and making rude comments during an altercat ion with
his work lead; and (3) he admitted ly labeled a technical manual for a reactor plant
incorrectly , which the agency determined could have resulted in the improper
disclosure of classified materials . RID at 4 -7; HT at 30-39 (testimony of the
appellant) . The appellant does not challenge the administrative judge ’s finding
6
that the agency pre sented strong evidence to support the charge s, and we decline
to disturb this finding . RID at 9.
¶10 On review, t he appellant argues that the agency failed to support its penalty
determination. RPFR File, Tab 3 at 8 -10. For example, he argues that the age ncy
failed to consider that the verbal altercation underlying charge 2 was the result of
unusual job tensions between him and his work lead . Id. at 9. He also asserts
that the agency did not mitigate the penalty to account for his lack of intent and
his prior good performance. Id. at 8 -9. These factors, which an agency is
required to consider in determining the appropriate penalty, may also be relevant
to assessing the Carr factors. See Schneider v. Department of Homeland
Security , 98 M.S.P.R. 377, ¶¶ 5, 21 -22 (2005) (finding that a witness ’s
anticipated testimony regarding his allegedly more favorable treatment under
circumstances similar to those that led to the appellant ’s suspension was relevant
and material to the Carr factors, as well as to the reasonableness of the penalty );
Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981 ) (providing a
nonexhaustive list of factors that are relevant to determining the reasonableness
of a penalty) .3 The administrative judge found that the deciding official properly
considered the applicable mitigating and aggravating factors before imposing a
15-day suspension . RID at 7-9. We agree.
¶11 As to the potential mitigating factor of unusual job tension s, the deciding
official considered the appellant’s claim that he used profanity and made rude
comments as alleged in charge 2 because his work lead stepped close to him,
making him feel “threatened and trapped.” IAF, Tab 7 at 69. However, the
3 The appellant also disputes administrative judge’s determination that he was not
similarly situated to employees who were not whistleblowers. RPFR File, Tab 3
at 7-10. We have analyzed this argument, below, under Carr factor 3. Regardless of
under which Carr factor we have discussed the appellant’s argument s, we have weighed
the Carr factors together in analyzing whether the agency met its burden. Mithen v.
Department of Veterans Affairs , 122 M.S.P.R. 489 , ¶ 36 (2015), aff’d per curiam ,
652 F. App’x 971 (Fed. Cir. 2016).
7
deciding official conclude d that the appellant “was the instigator of the
altercation .” Id. Therefore, he did not find that any tension between the
appellant and his work lead was a mitigating factor. Id.
¶12 As to the appellant’s intent, the deciding official considered this fact or as
part of the overall seriousness of the offense, which he found to be an aggravating
factor. Id. at 67. We discern no error in the deciding official’s finding, which
was based in large part on the altercation at issue in charge 2. Id. As to the
appellant’s prior work record, the deciding official considered the appellant’s
lack of prior discipline to be a mitigating factor. Id. However, he did not find
the appellant’s prior satisfactory performance to be mitigating because “his
supervisor as well as their customer has lost all faith in his ability to properly
package materials following the required security protocols.” Id. at 68. We again
discern no error.
¶13 Having considered the appellant’s misconduct and the aggravating and
mitigating factors, the deciding official mitigated th e proposed 30 -day suspension
to a 15 -day suspension . Id. at 69, 72. Thus, as the administrative ju dge
concluded, the first Carr factor strongly favors the agency .4 RID at 9; see
generally Shibuya v. Department of Agriculture , 119 M.S.P.R. 537 , ¶ 36 (2013)
4 We find that the agency’s decision to rescind the suspension action during the course
of this appeal does not detract from the strength of the agency’s evidence in support of
the suspension action at the time it made its decision . See Social Security
Administration v. Carr , 78 M.S.P.R. 313 , 335 (1998) (finding that it was appropriate to
examine the strength of the evidence before the agency when it so ught to remove the
appellant), aff’d , 185 F.3d 1318 (Fed. Cir. 1999) . We also find that the evidence does
not support the appellant’s argument that an agency official recommended that the
appellant receive training , rather than a suspension, in connection with charge 1. RPFR
File, Tab 1 at 8; IAF, Tab 7 at 22. Instead, the official in question recommended that
the appellant’s entire division receive refresher training . HT at 211-12 (testimony of
the Director of the Energy Material Office); IAF, Tab 35 at 107-08. This
recommendation appears to be an effort to avoid future incidents of mislabeling naval
reactor technical manuals , and it was not specifically directed to the appellant, who was
on leave at the time. HT at 211-12 (testimony of the Director of the Energy Material
Office); IAF, Tab 35 at 107-08.
8
(finding that the agency proved the charges, which weighed in favor of the agency
on the clear and convincing evidence issue).
We modify the remand initial decision to find that the agency officials involved
in the suspension decision had a slight motive to retaliate against the appellant .
¶14 As for the second Carr factor, the strength of any motive to retaliate on the
part of the agency officials who were involved in the decision, the administrative
judge found no evidence tha t any agency official had motive to retaliate against
the appellant. RID at 9-10. We disagree.
¶15 As to the deciding official, the adminis trative judge found that he knew of
the appellant’s disclosure . Id. However, the administrative judge found that the
deciding official had no motive to retaliate against the appellant based in part on
her finding that “nothing in his physical demeanor or tone of voice suggested any
animosity toward the appellant,” and his testimony was “forthright and fluid.” Id.
The a dministrative judg e also considered that the deciding official mitigate d the
suspension to 15 days because he empathized with the appellant ’s
sole-breadwinner status as additional evidence of a lack of animosity toward the
appellant . Id. at 10.
¶16 The admi nistrative judge further found that other individuals involved in
the suspension action , including the individual who reported the appellant’s
failure to carry out the work assignment at issue in charge 1, the proposing
official, and the Director of the Energy Material Office in which the appellant
was employed , had no motive to retaliate against him because they were not the
focus , or disciplined as a result, of his disclosures . Id. The administrative judge
found no evidence that these officials pressu red or influenced the deciding
official ’s penalty determination. Id. at 11.
¶17 The appellant argues that the administrative judge ’s finding that the
deciding official had no motive to retaliate “should be disregarded” because he
testified by telephone . RPFR File, Tab 3 at 7 ; RID at 9-10; HT at 72 -73. The
appellant did not object to taking this testimony telephonicall y on the record
9
below . Therefore, we decline to vacate the administrative judge’s
credibility -based finding regarding the motive of the deciding official . See
Parker v. Department of Veterans Affairs , 122 M.S.P.R. 353 , ¶ 22 (2015) (finding
that an appellant could not raise on review an objection that she did not preserve
below); Robertson v. Department of Transportation , 113 M.S.P.R. 16 , ¶¶ 10,
13-15 (2009) (vacating an administrative judge’s findings based on the testimony
of witnesses that the administrative judge permitted to testify by telephone over
the appellant’s objections). Further, we have examin ed the testimony of the
deciding official regarding his suspension decision, and we agree with the
administrative judge that his testimony is credible . Haebe v. Department of
Justice , 288 F.3d 1288 , 130 2 (Fed. Cir. 2002) (finding that when an
administrative judge’s findings are not based on observing witnesses’ demeanor,
the Board is free to re -weigh the evidence and substitute its own judgment on
credibility issues ). Specif ically, he testified in a logical manner, consistent with
the proposed suspension and his Douglas factor worksheet, that the basis for his
suspension decision was the appellant’s conduct, including his failure to
safeguard classified information and his altercation with his work lead . HT
at 79-82, 93 (testimony of the deciding official) ; IAF, Tab 7 at 22-25, 71 -72; see
Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987) (listing factors
relevant to resolving credibility issues ). During the altercation, the appellant
stood close to his work lead, yelling obscenities and referring to him as
“sweetcakes.” IAF, Tab 7 at 22 , 30-31; HT at 35-36 (testimony of the appellant) .
¶18 The appellant also argues that the agency’s offer of a “clean slate”
agreement 3 months before he received the proposed suspension, promising to
leave his allegations of improper behavior “in the past” if he dropped his
complaints or face possible removal , was evidence of retaliatory motive . RPFR
File, Tab 3 at 11; IAF, Tab 7 at 37, 39 . We are not persuaded by this argument.
The clean slate agreement reflected the proposing official’s expectation that those
under his supervision, including the appellant, would behave in a professional and
10
safe manner. IAF, Tab 35 at 94; HT at 177 -78 (testimony of the proposing
official). It was not conditioned on the appellant taking any actions regarding his
prior complai nts. IAF, Tab 35 at 94.
¶19 Nonetheless , we disagree with the administrative judge’s finding that the
proposing and deciding officials had no motive to retaliate against the appellant.
Criticisms that reflect on individuals in their capacities as managers an d
employees are sufficient to establish substantial retaliatory motive. Chavez ,
120 M.S.P.R. 285, ¶ 33 . The appellant’s disclosures to the proposing and
deciding official s of safety violations, theft of Government property , and an
alleged hostile work environment implicated their managerial and supervisory
capabilities . IAF, Tab 35 at 30, 32 -33; HT at 170-71, 174 -75 (testimony of the
proposing official) . For example, the appellant informed the proposing official
that the agency was rewarding bad behavior when “nothing was ever done about”
a coworker’s theft of property. HT at 171 (testimony of the proposing officia l).
The appellant also indicated to the proposing official that management was
failing to respond to his allegations of coworker harassment, stalking, and threats.
IAF, Tab 35 at 30. In response to the proposed suspension, the appellant stated
that he w as aware that he was “sometimes an irritation to management” when he
reported safety concerns within the deciding official’s chain of command . IAF,
Tab 7 at 38; HT at 73 (testimony of the deciding official).
¶20 Although we find that the a gency had a motive t o retaliate , we find the
motive was slight based on the prompt action that the proposing and deciding
officials took to resolve the appellant’s concerns. In response to his harassment
allegations, the proposing official immediately offered to reach out to Human
Resources and the Employee Assistance Program . IAF, Tab 35 at 33-34. When
the appellant’s allegations continued, the proposing official contacted the
agency’s Office of Counsel and confirmed that the agency had begun an inquiry
into a possible hos tile work environment. Id. at 43. He conveyed this
information to the appellant. Id. He also put in work orders to correct some of
11
the alleged safety violations raised by the appellant . HT at 174-76 (testimony of
the proposing official). Finally, he determined that a supervisor already had
investigated the appellant’s allegations of theft and concluded that employees
were invited to take the items in question because they were going to be thrown
away . Id. at 170-72 (testimony of the proposing officia l).
¶21 Similarly , the deciding official testified that he report ed to his subordinate,
the Director of the appellant ’s unit, the appellant’s allegations of a coworker’ s
theft for further investigation . HT at 73, 81-82 (testimony of the deciding
official) . The deciding official also reduced the appellant’s suspension from
30 to 15 days, which we find is additional evidence that he did not have a strong
motive to retaliate. IAF, Tab 7 at 7.
¶22 Accordingly, we conclude that the second Carr factors weights sligh tly
against the agency.
We modify the remand initial decision to find that the absence of evidence related
to the agency’s trea tment of similarly situated non whistleblowers cuts slightly
against the agency .
¶23 Applying the third Carr factor, the administra tive judge concluded that “the
appellant failed to prove that he was treat[ed] more h arshly than a
non-whistleblower. ” RID at 11. We disagree.
¶24 The absence of evidence on Carr factor three can either be neutral or “cut[]
slightly against the Government ,” depending on the circumstances. Miller ,
842 F.3d at 1262 ( citing Whitmore v. Department of Labor , 680 F.3d 1353 , 1374
(Fed. Cir. 2012 )). The agency “is required to come for ward with all reasonably
pertinent evidence” regarding Carr factor 3 because it has greater access to such
information. Whitmore , 680 F.3d at 1374 -75.
¶25 The agency provided evidence that , from 2009 to 2014, it issued discipline
ranging from cou nseling to probationary termination for conduct involving one of
the three charges at issue here. IAF, Tab 7 at 26. However, the agency did not
provide any specific information , such as whether there were multiple charges,
12
the identities of the proposing and deciding officials, or whether the individual
employees engaged in protected activity. Id. Therefore, we agree with the
appellant that the agency had, but did not present, evidence as to whether it
treated simil arly situated non whistleblowers more f avorably.5 We thus modify
the remand initial decision to find that this Carr factor cuts slightly against the
agency. RPFR File, Tab 3 at 9-10; see Miller , 842 F.3d at 1262.
¶26 On review, the appellant argues that the union president’s testimony that he
had never seen 15-day or 30 -day suspension s for similar charges supports a
finding against the agency on Carr factor 3 . RPFR File, Tab 3 at 9-10; HT at 6-7
(testimony of the union president). However, the union president only spoke in
general terms, and provided no specific information to support his assertion . HT
at 6-10 (testimony of the union president ). Thus, we give little weight to this
testimony . See Spurlock v. Department of Justice , 894 F.2d 1328 , 1330 (Fed. Cir.
1990) (observing that omissions and imprecision s “detract from the weight to be
accorded . . . evidence”).
The administrative judge properly found that the agency proved by clear and
convincing evidence that it would have suspended the appellant absent his
protected disclosures .
¶27 Although we have modified the administrative judge’s analysis to find that
Carr factors 2 and 3 weigh slightly again st the agency, we agree with her finding
that the agency proved by clear and convincing evidence that it would have
suspended the appellant absent his protected disclosures. RID at 11-12.
¶28 The agency had a sufficient objective basis to suspend the appella nt and
thus the first Carr factor strongly supports a finding that the agency met its clear
5 The proposing official testified that he considered issuing discipline to the employee
with whom the appellant h ad the altercation underlying charge 2. HT at 183 -84
(testimony of the proposing official). However, that individual retired 13 days after the
altercation, and 9 days before the agency issue d the appellant his proposed 30 -day
suspension. Id. at 183 -84, 187-88 (testimony of the proposing official ); IAF, Tab 7
at 22. Thus, we find that the absence of evidence r egarding this individual does not
weigh against the agency.
13
and convincing burden . Specifically, w e agree with the administrative judge’s
finding that the relevant testimonial and documentary evidence unequivocally
supports all three charges on which the app ellant’s suspension was based. RID
at 9; IAF, Tab 7 at 22 -25. Moreover, his mislabeling of technical manuals could
have caused the disclosure of classified information regarding nuclear reactors .
IAF, Tab 7 at 23-24; HT at 13, 30 -39, 93 (testimony of the appellant and the
deciding official).
¶29 We have found that the second Carr factor weighs against the agency , but
that this weight is slight in light of evidence that the proposing and deciding
officials attempted to rem edy the appellant’ s concerns and that the deciding
official mitigated the suspension . RID at 10; ID at 12 . We also have found that
the third Carr factor weighs slightly against the agency because it provided no
evidence showing that it took similar actions against employees who are not
whistleblowers but who were otherwise similarly situated to the appellant . See
Miller , 842 F.3d at 1262 .
¶30 Looking at the evidence in the aggregate, we agree with the administrative
judge’s conclusion that the agency met its burden to prove by clear and
convincing evidence that it would have demoted the appellant absent his
protected disclosures. Whitmore , 680 F.3d at 1368 (explaining that, in evaluating
whether the agency met its burden, all of the relevant evidence must be
considered in the aggregate).
¶31 Accordingly, we affirm the remand initial decision finding that the
appellant did not prove his affirmative defense of whistleblower reprisal .
14
NOTICE OF APPEAL RIG HTS6
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. Failu re to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please 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).
6 Since the issuance of the initial decision in this matter, the Board may have updat ed
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
16
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayme nt of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) o r
17
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Feder al Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/ probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower c laims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in ce rtain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510 .
18
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Cou rt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ZYGMUNT_KEVIN_RAY_PH_0752_15_0292_B_1_FINAL_ORDER_2056271.pdf | 2023-08-03 | null | PH-0752 | NP |
2,821 | https://www.mspb.gov/decisions/nonprecedential/SNEED_BETTY_L_CH_3443_17_0502_I_1_FINAL_ORDER_2055572.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BETTY L. SNEED,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-3443 -17-0502 -I-1
DATE: August 2 , 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Betty L. Sneed , Shaker Heights, Ohio, 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
dismissed her appeal as barred by the doctrine of collateral estoppel . On petition
for review, the appellant does not challenge the administrative judge’s finding
that her appeal is barred by the doctrine of collateral estoppel; rather she
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative ju dges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
continues to seek the Board’s assistance in obtaining benefits under the Federal
Employees’ Compensation 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 judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedu res or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any ba sis 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).3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking s uch
2 As to the appellant’s claim that her present appeal should have been assigned the
docket number from her prior 2005 Board appeal, MSPB Docket No. CH -0839 -05-
0491 -I-1, a review o f Board records reveals that that matter is closed. On September 1,
2005, the Board issued a final decision in the matter, denying her petition for review of
the initial decision that dismissed her appeal for lack of jurisdiction and setting forth
her fur ther review rights if she were dissatisfied with that decision. Sneed v. Office of
Personnel Management , MSPB Docket No. CH -0839 -05-0491 -I-1, Final Order (Sept. 1,
2005).
3 In light of this disposition, we decline to address the potential timeliness issue
regarding the appellant’s petition for review.
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provid e legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decisi on, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for mo re information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
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 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
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
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
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
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Equal Employment Opportunity Commission
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Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
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If so, and your judicial petition for review “raises no challenge to the Board’s
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(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Cir cuit 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
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.
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Board neither endorses the services provided by any attorney nor warrants that
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December 27, 2017. The All Circuit Review Act, sig ned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
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for the Federal Circuit or any other circuit court o f appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
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respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SNEED_BETTY_L_CH_3443_17_0502_I_1_FINAL_ORDER_2055572.pdf | Date not found | null | CH-3443 | NP |
2,822 | https://www.mspb.gov/decisions/nonprecedential/MILLER_ROBERT_LANCE_PH_0752_14_0757_I_5_FINAL_ORDER_2055832.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT LANCE MILLER,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
PH-0752 -14-0757 -I-5
DATE: August 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ralph B. Pinskey , Esquire, Harrisburg, Pennsylvania, for the appellant.
James Vietti and Lundi McCarthy Shafiei , 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
affirmed his removal for failure to meet medical qualifications . 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. Except as
expressly MODIFIED as to the charge analysis, the appellant’s disability
discrimination defenses, and the appellant’s restoration claim, we AFFIRM the
initial decision.
BACKGROUND
¶2 The appellant was an AD-0083 -07 Police Officer for the agency’s Pentagon
Force Protection Agency (PFPA), stationed at the Raven Rock Mountain Complex
in Adams County, Pennsylvania. Miller v. Department of Defense , MSPB Docket
No. PH -0752 -14-0757 -I-1, Initial Appeal File (IAF ), Tab 4 at 18, Tab 5 at 20.
The duties of a PFPA Police Officer are arduous and hazardous, and the position
is subject to Office of Personnel Management (OPM) -approved medical stand ards
under 5 C.F.R. § 339.202 . IAF, Tab 5 at 10 -25, Tab 7 at 146 -68.
¶3 On November 2, 2011, while performing a physical fitness test at work, the
appellant suffered a meniscal tear in his left knee. IAF, Tab 7 at 10, 45. On
December 29, 2011, the appellant un derwent surgery, and on January 11, 2012, he
returned to full -time limited duty. Id. The appellant’s treating physician,
Dr. Gregory Hanks, released him to return to work without restrictions , effective
February 1, 2012. Id. at 14. The appellant subseq uently underwent a
return -to-duty examination through work, and on March 5, 2012, he was
3
medically cleared to return to full duty. Id. at 16. On May 2, 2012, the appellant
took and passed without incident the same physical fitness test that had caused hi s
knee injury back in November 2011 . Miller v. Department of Defense , MSPB
Docket No. PH -0752 -14-0757 -I-2, Appeal File (I -2 AF), Tab 33 at 4.
¶4 Meanwhile, the Office of Workers’ Compensation Programs (OWCP) ruled
the appellant’s condition compensable, and he received continuation of pay and
wage loss compensation for his absences through his January 11, 2012 return to
work. I -2 AF, Tab 28 at 4 -17, 25 -33, 61. On June 25, 2012, the appellant, at the
behest of his attorney, was examined by another orthopedi c surgeon, Dr. Arthur
Becan. IAF, Tab 7 at 22. The appellant complained of pain, instability, and
occasional swelling and locking of his left knee, as well as difficulty performing
ordinary tasks, standing, walking, and running for extended periods. Id. at 23.
After a physical examination, Dr. Becan opined that the appellant had a 13%
impairment to the lower left extremity as a result of his November 2, 2011 injury,
and that the appellant had reached maximum medical improvement. Id. at 24-27.
With this medical evaluation as support, the appellant submitted a claim to
OWCP for a schedule award. I -2 AF, Tab 29 at 78; Hearing Transcript ( HT)
at 180-81 (testimony of the appellant).2
¶5 While reviewing the appellant’s schedule award claim, O WCP perceived
some discrepancies in his file, and it reached out to the agency for clarification.
I-2 AF, Tab 29 at 88. In doing so, OWCP advised the agency that Dr. Becan’s
evaluation seemed to contradict the appellant’s previous return to full duty, an d
noted that the information in his report indicated that the appellant “may have
significant issues with his knee that could affect his job performance.” I -2 AF,
2 In several places, the hearing transcript contains the phrase “schedule of work.” HT
at 95, 98, 100, 102, 111, 140, 180 -81 (testimony of the appellant), 271 (testimony of the
Medical Review Board Chair). In context, it appears to us that there was an error in the
transcription, and that “schedule of work” should read “schedule award” wherever it
appears.
4
Tab 29 at 88. Nevertheless, on October 9, 2012, OWCP granted the appellant a
schedule award based on a 13% permanent partial impairment and notified the
agency of the award. I -2 AF, Tab 28 at 39 -41; see 5 U.S.C. §§ 8106 -8107.
¶6 Also on October 9, 2012, the agency determined, based on Dr . Becan’s
evaluation, that the appellant was unable to perform the full range of his essential
job duties. It placed him in a “Medically Not Cleared status” and scheduled a
return -to-duty examination for October 26, 2012. IAF, Tab 7 at 29; I -2 AF,
Tab 29 at 89 -91, 98. The examination was conducted by Dr. Mary Ann Hollman,
the PFPA Medical Advisor. IAF, Tab 7 at 30. Dr. Hollman noted a misalignment
of the joint, clicking and instability, muscle atrophy, reduced motor strength, and
a painful and asymmetr ic gait. Id. at 6. Based on the physical examination and
the appellant’s reported history, she found that he did not meet medical
standards.3 Id. at 30. The agency placed the appellant in a light duty assignment.
I-2 AF, Tab 30 at 7 -9. The appellant’ s case was then submitted to the PFPA
Medical Review Board for a final decision. IAF, Tab 7 at 40. On January 15,
2013, the Medical Review Board issued its final decision, notifying the appellant
that he failed to meet the PFPA musculoskeletal system sta ndards, that he was
unable to safely and effectively perform his duties, that his condition was not
correctable within a reasonable time period, and that there was no basis for
waiving the standards. Id. at 40 -41.
¶7 Subsequently, OWCP referred the appellant ’s case for a second opinion
examination, to get clarification on whether the appellant’s November 2, 2011
knee injury still required active treatment, whether the appellant was capable of
performing in his Police Officer position, and whether there were a ny
3 The day before the agency -conducted return to duty examination, the appellant was
examined b y Dr. Hanks, who recommended that the appellant return to duty without
restrictions. IAF, Tab 7 at 31. The appellant provided the agency with a generic form
to this effect, but he did not provide the agency with Dr. Hanks’s examination notes.
Id. at 6.
5
non-industrial injuries noted since the date of the compensable injury. IAF, Tab 7
at 42. The examination was conducted on March 26, 2013 by another orthopedic
surgeon, Dr. Robert Draper, who found the appellant’s knee to be stable and
flexible, and t he overall examination to be “quite benign.” Id. at 44 -48.
Although he diagnosed the appellant with mild osteoarthritis in his left knee,
Dr. Draper concluded that no additional treatment was required and that the
appellant could return to full duty.4 Id. at 47 -49.
¶8 The appellant forwarded Dr. Draper’s report to the Medical Review Board,
which reconsidered his case but, on May 7, 2013, reaffirmed its prior decision
that the appellant failed to meet the PFPA musculoskeletal system standards.
IAF, Tab 5 at 38. After unsuccessful efforts to place the appellant in another
position within his medical restrictions, on September 11, 2013, the agency
proposed his removal for “Failure to Meet Medical Standards,” based on the
January 15, 2013 decision of the Med ical Review Board. IAF, Tab 5 at 4 -7,
Tab 7 at 40 -41. After the appellant responded to the proposal, both orally and in
writing, on May 13, 2014, the agency issued a decision removing him effective
May 17, 2014. IAF, Tab 4 at 18 -25. Around the time of his removal, the
appellant filed a notice of recurrence with OWCP . I-2 AF, Tab 28 at 63 -71. On
June 6, 2014, OWCP acknowledged receipt of the appellant’s notice and
requested more information. Id. at 82 -86. The appellant failed to provide all of
the in formation that OWCP requested, and on July 24, 2014, OWCP denied his
claim for recurrence.5 Id. at 87 -91.
4 After receiving Dr. Draper’s report, OWCP proposed to terminate the appellant’s
workers’ compensation benefits on the basis that the appellant was no longer suffering
from a work -related injury. I -2 AF, Tab 28 at 58 -59. However, OWCP rescinded its
prop osal, and the record does not reveal wha t exactly became of the appellant’s original
claim. Id. at 60.
5 The record does not reveal whether the appellant appealed OWCP’s determination.
6
¶9 The appellant filed a Board appeal, contesting the merits of the action and
raising affirmative defenses of disability discrimination (status -based and failure
to accommodate) and denial of due process. IAF, Tab 1 at 4, 6; Miller v.
Department of Defense , MSPB Docket No. PH -0752 -14-0757 -I-4, Appeal File
(I-4 AF), Tab 29 at 1 -8, Tab 31 at 3 -9; Miller v. Department of Defense , MSPB
Docket No. PH -0752 -14-0757 -I-5, Appeal File (I-5 AF), Tab 5 at 3 -11. He also
argued that the agency violated his restoration ri ghts under 5 C.F.R. part 353.
I-4 AF, Tab 29 at 8 -9.
¶10 After a hearing, the administrative judge issued an initial decision affirming
the appellant’s removal. I -5 AF, Tab 7, Initial Decision (ID). Weighing the
conflicting medical evidence in light of the agency’s standards, he sustained the
charge. ID at 7 -13. The administrative judge further found that the appellant
failed to prove his affirmative defenses or his restoration claim, and that the
removal penalty was reasonable under the circumstances. ID at 14 -26.
¶11 The appellant has filed a petition for review, contesting the merits of the
charge and renewing his affirmative defenses of denial of due process and
disability discrimination (failure to accommodate). Petition for Review (PFR)
File, Tab 1 at 6 -29. The appellant requests, in the alternative, that the appeal be
remanded for the administrative judge to take additional evidence on whether the
condition that caused him not to meet the PFPA medical standards was
compensable. Id. at 29 -31. The agen cy has responded to the petition for review,
and the appellant has filed a reply to the agency’s response , as well as a motion
for leave to file additional evidence related to his restoration claim . PFR File,
Tabs 3, 6.
ANALYSIS
The charge is sustained.
¶12 In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency
bears the burden of proving by preponderant evidence that its action was taken
7
for such cause as would promote the efficiency of the service. MacDonald v.
Department of the Navy , 4 M.S.P.R. 403 , 404 (1980); 5 C.F.R. § 1201.56 (b)(1)(ii).
To meet this burden, t he agency must prove its charge, establish a nexus between
the charge and the efficiency of the service, and demonstrate that the penalty
imposed was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144 , 1147 (Fed.
Cir. 1997). However, even if the agency carries this burden, the action may not
be sustained if the appellant shows that it was taken in violation of his right to
due process or was based on disability discrimina tion. 5 U.S.C.
§§ 2302 (b)(1)(D), 7701(c)(2)(B); Stephen v. Department of the Air Force ,
47 M.S.P.R. 672 , 681 (1991); see 5 C.F.R. § 1201.56 (b)(2)(i)(C).
¶13 In thi s case, the agency charged the appellant with failing to meet the
PFPA’s OPM -approved medical standards. IAF, Tab 5 at 4. Specifically, the
agency alleged that the appellant did not meet the PFPA musculoskeletal system
standards. IAF, Tab 5 at 4, Tab 7 at 40. The PFPA medical standards are, for the
most part, not precisely quantifiable, and the particular medical conditions
discussed therein are generally not described as automatically disqualifying. IAF,
Tab 7 at 150 -68. Rather, the medical standards exist to aid the PFPA Medical
Advisor in making objective determinations, on a case -by-case basis, as to an
individual’s ability to perform the full range of his essential duties without undue
risk to himself or others. Id. at 147. Importantly, the medi cal standards are
subject to clinical interpretation by the Medical Advisor, in light of her
knowledge of the job requirements and environmental conditions in which the
individual must work. Id. The musculoskeletal standards themselves provide that
any c ondition that adversely affects an individual’s movement, agility, flexibility,
strength, dexterity, or coordination, or his ability to accelerate, decelerate, or
change directions efficiently, will require addit ional screening. IAF, Tab 7
at 161. This i ncludes arthritis, if there is limited joint motion or pain. Id.
¶14 In finding that the appellant failed to meet the agency’s medical standards,
the administrative judge applied the legal standard set forth in 5 C.F.R.
8
§ 339.206 , which provides that “a history of a particular medical problem may
result in medical disqualification only if the condition at issue is itself
disqualifying, recurrence cannot be medically ruled out, and the duties of the
position are such that a recurrence would pose a reasonable probability of
substantial harm.” After weighing the available medical evidence in light of the
appellant’s job duties and the nature of the Police Officer position, the
administrative jud ge found that the agency proved its charge. ID at 6-13.
¶15 On petition for review, the appellant argues that the agency failed to prove
the charge under 5 C.F.R. § 339.206 . He disputes the administrative judge’s
analysis, arguing that the agency failed to prove that his medical condition is
itself disqualifying or that recurrence cannot be ru led out. PFR File, Tab 1
at 12-21. However, while this appeal was pending on petition for revie w, the
Board issued a precedential decision clarifying that the standard set forth in
5 C.F.R. § 339.206 only applies when an employee was removed “solely on the
basis of medical history, ” as opposed to a current medical condition. Haas v.
Department of Homeland Security , 2022 MSPB 36 , ¶¶ 10-15. The Board
explained th at a removal is based solely on medical history if the only basis for
concluding that the employee is medically unable to perform the core duties of
his position is the fact that his medical records reflect that, at some time in the
past, he was classified as having, was examined for, or was treated for the
medical condition or impairment in question. Id., ¶ 12.
¶16 The appellant in this case was not removed based on his medical history.
Rather, he was removed based on physical difficulties that he was curr ently
experiencing due to several interrelated, ongoing, and progressively worsening
knee problems in both knees. IAF, Tab 5 at 4, Tab 7 at 4 -6, 40. In particular, it
is undisputed that the appellant had been suffering from osteoarthritis
(degenerative j oint disease) in his knees long before his November 2, 2011 injury.
Miller v. Department of Defense , MSPB Docket No. PH -0752 -14-0757 -I-3,
Appeal File ( I-3 AF ), Tab 4 at 19, 23, 28, 32, 34, 36 -40, 44; I -4 AF, Tab 23 at 55,
9
126-27, 260, 262. When an individual is diagnosed with a medical condition such
as this one, which is by its nature permanent or progressive in severity, it will be
assumed to continue to exist after the date of diagnosis absent rebuttal evidence
to the c ontrary. Haas, 2022 MSPB 36 , ¶ 17 (quoting Pyles v. Merit Systems
Protection Board , 45 F.3d 411 , 415 (Fed. Cir. 1995)). There is no such evidence
in this case. To the contrary, the medical evidence shows that the appellant’s
osteoarthritis has continued to worsen over time. I -4 AF, Tab 23 at 125-27.
¶17 Beca use the appellant’s removal was not based solely on his medical
history, the charge should not be analyzed under standard set forth in 5 C.F.R.
§ 339.206 . Rather, to prove its charge the agency must establish either a nexus
between the appellant’s medical condition and observed deficiencies in his
performance or conduct, or a high probability, given the nature of the work
involved, that his condition may result in injury to himself or oth ers. Haas ,
2022 MSPB 36 , ¶ 15. Although the administrative judge applied what we have
now determined to be the incorrect standard to the agency’s charge, we find that
remand is unnecessary because the record is fully developed on the relevant
issues. See id , ¶ 20 (citing Forte v. Department of the Navy , 123 M.S.P.R. 124 ,
¶ 27 (2016)).
¶18 The agency in this case does not appear to argue that the appellant exhibited
any actual performance or conduct deficiencies related to his knee condition or
otherwise, and we see no evidence in the record that would support such a
finding. Instead, the a gency argues that, given the nature and duties of the Police
Officer position, there was a high probability that the appellant’s knee condition
could result in injury to himself or others. I -5 AF, Tab 6 at 6 -7. We agree.
¶19 The medical evidence in this ca se consists of examination notes and clinical
findings made by the four physicians discussed above : Dr. Hanks (the appellant’s
treating physician and orthopedic surgeon), Dr. Becan (the orthopedic surgeon
who examined the appellant in support of his appli cation for a schedule award),
Dr. Hollman (the agency’s Medical Advisor ), and Dr. Draper (the orthopedic
10
surgeon who conducted the second opinion examination for OWCP). To the
extent that the findings and opinions of these four physicians differ, we asses s
their probative value based on “such factors as whether the opinion was based on
a medical examination, whether the opinion provides a reasoned explanation for
its findings as distinct from mere conclusory assertions, the qualifications of the
expert ren dering the opinion, and the extent and duration of the expert’s
familiarity with the treatment of the [appellant’s] condition.” Chavez v. Office of
Personnel Management , 6 M.S.P.R. 404 , 417 (1981). We agree with the
administrative judge that the clinical findings of Doctors Hanks, Becan, and
Hollman are largely consistent and convey that the appellant was suffering
significant impairment in his knee s, particularly the left one. ID at 12; IAF ,
Tab 7 at 6, 23 -27, I -3 AF, Tab 4 at 19 -25, 28 -34. Dr. Draper’s assessment was
the outlier; he found the appellant’s knee condition to be unremarkable, and he
found no indication for further treatment or diagno sis. IAF, Tab 7 at 47 -48.
¶20 Although we find no basis to question Dr. Draper’s qualifications, we agree
with the administrative judge that his opinion is entitled to less weight than those
of the other three physicians. ID at 11 -13. Not only was Dr. Dra per’s assessment
inconsistent with the assessments of the other three physicians, but unlike
Dr. Hanks, Dr. Draper formed his opinion after only a single examination. See
Tan-Gatue v. Office of Personnel Management , 90 M.S.P.R. 116 , ¶ 11 (2001)
(observing that m edical conclusions based on a long familiarity with a patient are
of greater weight than those based on a brief associa tion or single examination) ,
aff’d per curiam , 52 F. App’x 511 (Fed. Cir. 2002) . Furthermore, both Dr. Hanks
and Dr. Hollman were highly critical of Dr. Draper’s report, and it appeared to
them that his assessment was based on an incomplete examination and incomplete
review of the appellant’s medical history. I -4 AF, Tab 23 at 153 -58, 291 -97.
Dr. Draper’s report is inconsistent with the subjective complaints that the
appellant made to both Dr. Hanks and Dr. Becan about pain in his knees, locking
11
and bu ckling, and difficulty performing many ordinary functions that involve
stresses on the knee. IAF, Tab 7 at 23, 26; I -3 AF, Tab 4 at 19, 23, 28, 30, 32.
¶21 We also agree with the administrative judge that, notwithstanding the value
of his clinical findings, Dr. Hanks’s opinion that the appellant could return to full
duty merits little weight. ID at 12 -13. As the administrative judge correctly
found, Dr. Hanks was never notified of the PFPA Police Officer medical
standards, he had never seen the appellant’s position description, he was
unfamiliar with the appellant’s specific job duties and work environment, and he
based his return -to-duty recommendation entirely on the appellant’s own
description of those duties and the appellant’s subjective assessment of whether
he could perform them. ID at 12; I -4 AF, Tab 23 at 68 -72, 74, 99 -101. We also
observe that, as the appellant’s treating physician, it was not Dr. Hanks’s job to
promote the efficiency of the Civil Service; rather, his job was to promote the
healt h of the appellant.
¶22 Dr. Hanks’s willingness to allow the appellant to return to duty “with no
restrictions and see how things go” may have been sound medical advice, but it
says little about the appellant’s reliability in an emergency situation, which wa s
the agency’s specific concern. IAF, Tab 4 at 19 -20, Tab 5 at 4-5; I-2 AF, Tab 4
at 23; HT at 237 -38, 253, 284 -85 (testimony of the Medical Review Board Chair).
In contrast to this recommendation, Dr. Hanks repeatedly advised the appellant
that he may n eed to seek an occupational change because of his progressively
worsening knee condition. Id. at 30, 33. For these reasons, we credit the findings
of the Medical Review Board, which was not only thoroughly briefed by
Dr. Hollman on the appellant’s medica l condition, but was also familiar with the
Police Officer position and the PFPA musculoskeletal standards. IAF, Tab 7
at 4-7, 40; HT at 194 -96, 211 -14 (testimony of the Medical Review Board Chair).
¶23 Although the appellant’s actual experience of his job may have involved
relatively low levels of physical exertion, we agree with the administrative judge
that the PFPA physical and medical standards are in place to ensure that Police
12
Officers are able to protect life and property in rare emergency situations
regardless of whether such exertions might be required during a typical day on
the job. ID at 11; I-5 AF, Tab 6 at 7; HT at 20 -27, (testimony of the Pentagon
Police Site Supervisor), 237 -38, 283 (testimony of the Medical Review Board
Chair). For these r easons, we find that the agency has established a high
probability that, given the responsibility of a PFPA Police Officer to put forth
maximum physical exer tion in an emergency situation , the appellant’s knee
condition may result in injury to himself or o thers. We accordingly affirm, as
modified to apply the reasoning above, the administrative judge’s determination
that the agency proved its charge of failure to meet medical standards .
The appellant did not prove his affirmative defenses of disability dis crimination.
¶24 As stated above, the appellant raised affirmative defenses of disability
discrimination under both reasonable accommodation and status -based theories .
I-4 AF, Tab 31 at 3 -9. In his initial decision, the administrative judge found that
the ap pellant failed to prove his disability discrimination claims because he failed
to show that he is an individual with a disability wit hin the meaning of 42 U.S.C.
§ 12102 (1) and 29 C.F.R. § 1630.2 (g)(1). ID at 14 -22. We disagree , and we find
that the appellant has shown that he is disabled under 42 U.S.C . § 12102 (1)(A)
and 29 C.F.R. § 1630.2 (g)(1)(i), because his knee condition substantially limits
him in one or more major life activities. Specifically, Dr. Becan’s June 25, 2012
medi cal report documents that the appellant’s knee pain causes him difficulty
with, among other things, walking, ordinary h ousehold chores, and basic
self-care, such as washing and dressing. IAF, Tab 7 at 23. The appellant does
not deny reporting these probl ems to Dr. Becan in June 2012, the agency does not
contest the accuracy of the report, and the record shows that the appellant’s knee
condition has been deteriorating since then . HT at 104 -08 (testimony of the
appellant); I -4 AF, Tab 23 at 125 -27. Althou gh not every impairment constitutes
a “disability” within the meaning of the Americans with Disabilities Act (ADA),
an impairment need not prevent or significantly or severely restrict the individual
13
from performing a major life activity in order to be con sidered substantially
limiting. 29 C.F.R. § 1630.2 (j)(1)(ii). Rather, an impairment constitutes a
disability if it substantially limits the ability of an individual to perform a major
life activity as compared to most people in the general population. The term
“substantially limits” must be construed broadly in favor of expansive coverage,
to the maximum extent permitted by the terms of the ADA. 29 C.F.R.
§ 1630.2 (j)(1)(i). It is not meant to be a demanding standard, and should not
require extensive analysis. 29 C.F.R. § 1630.2 (j)(1)(i), (iii). In light of the broad
meaning of the term “disability,” we find that the appellant’s knee condition
easily meets the definition because it substantially limits him in the major life
activities of walking, self -care, and operation of the musculoskeletal system . See
29 C.F.R. § 1630.2 (i)(1) (setting forth a nonexhaustive list of major life
activities). For these reasons, we agree with the appellant that his knee condition
is disabling under 42 U.S.C . § 12102 (1)(A) and 29 C.F.R. § 1630.2 (g)(1)(i). PFR
File, Tab 1 at 22 -24.
¶25 Nevertheless, in order to prevail on a dis ability discrimination claim under
either a status -based or reasonable accommodation theory, an appellant must
show not only that he is disabled, but also that he is a “qualified” individual with
a disability, i.e. , that he can perform the essential functi ons of the position that he
holds or desires with or without reasonable accommodation. Haas , 2022 MSPB
36, ¶¶ 28 -29; see 42 U.S.C. § 12112 (a). We find it undisputed that one of the
essential functions of PFPA Police Officer, as set forth in the position
description, is “to take decisive and immediate action in emergency situa tions
such as riots, demonstrations, terrorist attacks and hostage situations. ” IAF,
Tab 5 at 20. For the reasons explained above, we find that the appellant’s knee
condition precludes him from performing such emergency duties at a satisfactory
level. W e see no obvious accommodation that the agency could provide the
appellant that would allow him to perform these functions, and the appellant has
not proffered any suggestions in this regard. We therefore find that the appellant
14
is not a qualified individ ual with a disability with respect to the PFPA Police
Officer position.
¶26 In the absence of a reasonable accommodation that would allow an
employee to perform the essential functions of his current position, an agency
may offer reassignment to a vacant funde d position at or below the appellant’s
current grade level as an accommodation of last resort. Angel v. Office of
Personnel Management , 122 M.S.P.R. 424 , ¶ 9 (2015). On petition for review,
the appellant argues, correctly, that the agency failed to conduct an adequate
search for vacant funded positions to which he might be reassigned. PFR File,
Tab 1 at 25 -29. Specifically, it app ears that the agency restricted its search to
vacant funded positions within the PFPA, rather than considering all available
Department of Defense positions , as it should have done. I -2 AF, Tab 30 at 42,
46; HT at 51 (testimony of testimony of the Pentago n Police Site Supervisor); see
Sanchez v. Department of Energy , 117 M.S.P.R. 155 , ¶ 18 (2011). Nevertheless,
regardless of whether the agency conducted an adequate search for a position to
which the appellant could be reassigned before removing him, the appellant still
bears the ultimate burden of proving that there was a position the agency would
have found and could have assigned him to if it had looked. Jackson v. U.S.
Postal Service , 79 M.S.P.R. 46 , 53-54 (1998). The app ellant has made no such
showing here and has therefore not shown that he was a qualified individual with
respect to any vacant funded position to which he could have been reassigned.
See Clemens v. Department of the Army , 120 M.S.P.R. 616 , ¶ 17 (2014). Because
the appellant has not shown that he is a qualified individual with a disability, we
find that he has not proven either his reasonable accommodation or status -based
disability discrimination claims. See Haas , 2022 MSPB 36 , ¶¶ 30-31.
The appellant did not pr ove his due process affirmative defense.
¶27 An agency ’s failure to provide a tenured public employee with an
opportunity to present a response, either in person or in writing, to an appealable
agency action that deprives him of his property right in his emplo yment
15
constitutes an abridgement of his constitutional right to minimum due process of
law, i.e., prior notice and an opportunity to respond. Cleveland Board of
Education v. Loudermill , 470 U.S. 532 , 546 (1985). The reply opportunity may
not be an empty formality, and the deciding official should have authority to take
or recommend agency action based on the reply. Diehl v. Department of the
Army , 118 M.S.P.R. 344, ¶ 12 (2012). In other words, t o the extent that there are
viable alternatives to a proposed adverse action, due process requires that th e
employee be afforded an opportunity to invoke the discretion of a deciding
official with the authority to select such alternatives. See Buelna v. Department
of Homeland Security , 121 M.S.P.R. 262 , ¶ 28 (2014).
¶28 In this case, the appellant argued that the agency violated his due process
rights because the deciding officia l lacked the authority to overturn the Medical
Review Board’s determination that he failed to meet PFPA medical standards.
I-5 AF, Tab 5 at 3 -4. However, the administrative judge found that the deciding
official’s role was not limited to rubberstamping th e proposal and that the
deciding official had the authority not to sustain the charge or to take other
measures alternative to removal. ID at 21 -22.
¶29 On petition for review, the appellant disagrees with the administrative
judge’s analysis, reiterating th at the deciding official lacked the authority to
overturn the Medical Review Board’s determination. PFR File, Tab 1 at 10 -12.
However, even if the deciding official lacked authority to overturn the decision of
the Medical Review Board and substitute his own finding that the appellant was
medically qualified, we find that this does not equate to a violation of due
process. Rather, we find that this situation is analogous to a removal for failure
to maintain a security clearance. A deciding official’s lac k of authority to
overturn a clearance determination does not mean that due process requirement s
have not been met because due process does not demand that the deciding official
consider alternatives that are prohibited, impracticable, or outside managemen t’s
purview. Buelna , 121 M.S.P.R. 262 , ¶ 27. Nor does due process require that the
16
deciding official have the unfettered discre tion to take any action he believes is
appropriate . Putnam v. Department of Homeland Security , 121 M.S.P.R. 532,
¶ 12 (2014). To the extent that there may be viable alternatives to a proposed
action, an employee has a due process right to invoke the discretion of a deciding
official with the authority to select such alternatives . Buelna , 121 M.S.P.R. 262,
¶ 28. For the reasons explained in the initial decision, we agree with the
administrative judge that the deciding official in this case had such authority and
that the appellant had a full and fair opportunity to invoke his discretion on the
matter, ID at 22.
¶30 The appellant also argues that the agency denied him due process b y failing
to identify the specific medical diagnosis underlying the Medical Review Board’s
determination. PFR File, Tab 1 at 6 -10. However, this argument is not properly
before the Board because the appellant has raised it for the first time on petition
for review without showing that it is based on evidence previously unavaila ble
despite his due diligence. See Clay v. Department of the Army , 123 M.S.P.R.
245, ¶ 6 (2016). In any event, it appears that thi s newly raised due process
argument is based on the legal standard set forth in 5 C.F.R. § 339.206 , which , as
explained above , does not apply in this case.
We decline to disturb the adm inistrative judge’s nexus and penalty findings.
¶31 The appellant does not directly challenge the administrative judge’s nexus
determination, and for the reasons explained in the initial decision, we agree that
the agency has shown the requisite nexus between its charge and the efficiency of
the service. ID at 24; see Lara v. Mine Safety and Health Administration ,
10 M.S.P.R. 554 , 556 (1982) (finding a n exus between the appellant’s loss of an
eye and the performance of his duties as a mine inspector because an agency
“need not wait for the appellant to cause injury to himself or others because of his
vision limitation, as long as the likelihood of such an event is reasonably
foreseeable”). Nor does the appellant directly contest the administrative judge’s
finding that the removal penalty was reasonable under the circumstances, and we
17
see no reason to disturb that finding on review. ID at 24 -26; see D’Leo v.
Department of the Navy , 53 M.S.P.R. 44 , 51 (1992) (finding that removal for
physical inability to perform promotes the efficiency of the service).
We decline to remand the appeal for the submission of additional medical
evidence.
¶32 On petition for review, the appellant argues that the evidence is equivocal
on whether his removal was based on a compensable injury, and to the extent that
it was, he has restoration rights under 5 C.F.R. part 353, subpart C. PFR File,
Tab 1 at 29 -31. A fter the record on review closed, the appellant filed a motion
for leave to submit additional evidence on the issue , in the form of a letter from
Dr. Hanks supporting his assertion that his failure to meet medical standards was
due, at least in part, to ch ondromalacia patellae, a condition that OWCP had
previously accepted as compensable in connection with the appellant’s wage loss
compensation award. PFR File, Tab 7; I -2 AF, Tab 28 at 16.
¶33 We agree with the appellant that the record evidence is not entirel y clear on
whether his failure to meet medical standards, and subsequent removal, was due
to a work -related injury, a non -work related condition, or both. Although the
administrative judge found that the appellant’s failure to meet medical standards
was d ue to his congenital osteoarthritis and not to any compensable injury, we
find that the evidence on this point is not so straightforward. ID at 23. In
particular, we acknowledge the undisputed deposition testimony of Dr. Hanks,
who opined that the appell ant’s November 2, 2011 meniscal tear may have caused
his preexisting and previously undiagnosed osteoarthritis to become symptomatic.
I-4 AF, Tab 23 at 75 -77. Although OWCP found that the appellant failed to show
that his removal was attributable to a re currence of his compensable injury for
purposes of wage loss compensation, I -2 AF, Tab 28 at 87 -88, this may not
necessarily preclude the Board from finding that the appellant’s removal was
“substantially related to” his compensable injury for purposes of restoration, see
Ruppert v. U.S. Postal Service , 8 M.S.P.R. 593 , 595 (1981) (holding that an
18
employee is entitled to restoration rights when his separation from service either
resulted from or was substantially related to a compensable injury).
¶34 Nevertheless, to the extent that the appellant is attempting to claim a denial
of restoration as a partially recovered individual for the period postdating his
removal, we find nothing in the record to indicate that he made a request for
restoration during this time period.6 See Cronin v. U.S. Postal Service ,
2022 MSPB 13 , ¶ 12 (setting forth the jurisdictional elements of a restoration
appeal for a partially recovered individual, including that appellant make a
nonfrivolous allegation that the agency denied his request for restorat ion). We
therefore find that, regardless of whether the appellant’s removal was
substantially related to his compensable injury, the Board would lack jurisdiction
over any potential restoration claim in the context of the instant appeal. See
Wright v. U. S. Postal Service , 62 M.S.P.R. 122 , 126 (1994) (“[T]he agency never
denied the appellant restoration because the appellant never directly reque sted
it.”), aff’d , 42 F.3d 1410 (Fed. Cir. 1994) (Table) . For this reason, we decline to
remand the appeal for further adjudication, and we deny the appellant’s motion to
submit additional evidence on review.
¶35 To the extent that the administrative judge found that the appellant’s
removal was not substantially related to his compensable injury, we vacate that
finding and dismiss the appellant’s restoration claim for lack of jurisdiction on
the alternative ground that the appellant failed to make a nonfrivo lous allegation
that the agency denied his request for restoration. If, in the future, the appellant
requests restoration and the agency denies it, our findings here will not preclude
him from filing a new restoration appeal at that time and introducing a dditional
6 Even if the appellant otherwise meets the definition of “physicall y disqualified” under
5 C.F.R. § 353.102 , more than 1 year passed between the date of his most recent OWCP
award and the date of his removal, so it would appear that he would have the res toration
rights of a partially recovered individual. See Mendenhall v. U.S. Postal Service ,
74 M.S.P.R. 430 , 436 -37 (1997); 5 C.F.R. § 353.301 (c).
19
evidence concerning the relatio nship between his compensable injury and his
removal. However , we do not purport to make any finding at this time on
whether the appellant would be able to establish jurisdiction over a future
restoration appeal . See 5 U.S.C. § 1204 (h) (“The Board shall not issue advisory
opinions.”).
NOTICE OF APPEAL RIG HTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision i n 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 na ture of
your claims determines the time limit for seeking such review and 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 jur isdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices 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.
7 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.
20
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
21
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
22
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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.8 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).
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
8 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.
23
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | MILLER_ROBERT_LANCE_PH_0752_14_0757_I_5_FINAL_ORDER_2055832.pdf | 2023-08-02 | null | PH-0752 | NP |
2,823 | https://www.mspb.gov/decisions/nonprecedential/FITTEN_STEVEN_M_SF_1221_16_0390_W_1_FINAL_ORDER_2055291.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN M. FITTEN,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-1221 -16-0390 -W-1
DATE: August 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven M. Fitten , El Paso, Texas, pro se.
Steven L. Parker , 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 revie w of the initial dec ision, which
denied his request for corrective action in this individual right of action (IRA)
appeal . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge ’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED by
this Final Order t o clarify that the Board lacks jurisdiction over the appellant ’s
claims of retaliation for his activities under 5 U.S.C. § 2302 (b)(9)(B) as to
Vacancy Number 770787 , we AFFIRM th e initial decision.
BACKGROUND
¶2 From October 1997 to November 2006, the appellant was employ ed by the
agency as an Attorney Advisor. Initial Appeal File (IAF), Tab 32 at 19-20. From
October 2012 to August 2015, the appellant applied to 12 vacancies wit h the
agency. IAF, Tab 9, Tab 28 at 4. He was not interviewed or selected for any of
the vacancies. Id. After exhausting his administrative remed ies with the Office
of Special Counsel (OSC) regarding the nonselections, he filed the instant IRA
appeal a nd requested a hearing. IAF, Tab 1.
¶3 The administrative judge found jurisdiction, held the requested hearing, and
issued a n initial decision denying corrective action. IAF, Tab 53, Initial Decision
(ID). Specifically, she found that the appellant did n ot prove tha t his protected
disclosures and activity w ere a contributing factor in the agency ’s decision not to
hire him for 11 of the 12 vacancies. ID at 9-24. However, she found that the
appellant proved that his protected disclosures and activity w ere a contributing
3
factor in the agency ’s decision not to hire him for Vacancy Number 1328199 , a
Supervisory Contract Specialist position . ID at 21 -22. Nevertheless, she
concluded that the agency proved by clear and convincing evidence that it would
not hav e selected the appellant, regardless of his protected disclosures and
activity . ID at 24 -29.
¶4 The appellant has filed a petition for review , and the agency has filed a
response opposing the appellant ’s petition. Petit ion for Review (PFR) File,
Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 To establish a prima facie case of whistleblower retaliation regarding the
nonselections , the appellant must demonstrate, by preponderant evidence , that he
made a protected disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in protected
activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), that was a
contributing factor in the agency ’s decision not to select him for the vacancies at
issue. See Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8
(2016) . As the administrative judge found, the appellant made protected
disclosures to the agency ’s Inspector General and to OSC , and engaged in
protected activity. ID at 7 -8; see 5 U.S.C. § 2302 (b)(8)(B), (9)(C).2 She also
found that he engaged in protected activity when he assisted another employee
2 Prior to December 12, 2017, the whistleblo wer protection statutory scheme s provided
that “cooperating with or disclosing information to the Inspector General of an agency,
or the Special Counsel, i n accordance with applicable provisions of law,” is protected.
5 U.S.C. § 2302 (b)(9)(C); Edwards v. Department of Labor , 2022 MSPB 9, ¶ 28, aff’d ,
No. 2022 -1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023) . Effective December 12,
2017, the National Defense Authorization Act of 2018 (NDAA for 2018) amended
section 2302(b)(9)(C) to provide that, in addition to the Inspector General of an agency
or the Special Counsel, a disclosure to “any other component responsible for internal
investigation or review” is al so protected. Pub. L. No. 115 -91, § 1097(c)(1), 131 Stat.
1283, 1618 (2017). The NDAA for 2018 amendment to section 2302(b)(9)(C) is not
retroactive. Edwards , 2022 MSPB 9, ¶¶ 28 -32. The expansion of section 2302(b)(9)(C)
does not affect the outcome of this appeal because all of the relevant events occurred
prior to December 12, 2017.
4
with an OSC complaint .3 ID at 7-8; see 5 U.S.C. § 2302 (b)(9)(B) . Accordingly,
he must prove that his protected disclosures and activity were a contributing
factor in his nonselections. Corthell , 123 M.S.P.R. 417, ¶ 8.
¶6 An employee may prove the contributing factor element through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the protected disclosures or activity , and that the personnel action
occurred within 1 to 2 years of the disclosure s or activity . Mastrullo v.
Department of Labor , 123 M.S.P.R. 110, ¶¶ 18, 21 (2015) . If the appellant fails
to satisfy the knowledge/timing test, the administrative judge ordinarily shall
consider whether the appellant proved contributing factor through other evidence,
such as that pertaining to the s trength or weakness of the agency’s reasons for
taking the personnel action, whether the protected activity was personally
directed at the proposing or deciding officials, and whether those individuals had
a desire or motive to retaliate against the appell ant. Rumsey v. Department of
Justice , 120 M.S.P.R. 259 , ¶ 26 (2013).
3 The administrative judge found that, although the appellant engaged in protected
activity pursuant to 5 U.S.C. § 2302 (b)(9)(B) in 2005 and 2007 when he assisted
another employee with an OSC complaint, this activity was not a contributing fact or in
his nonselection for certain vacancies , including his nonselection for Vacancy
Number 770787 on December 20, 2012. ID at 8, 10-11; IAF, Tab 35 at 173. Th e
provision of the Whistle blower Protection Enhancement Act of 2012 (WPEA) that
provides for the filing of an appeal on the basis of section 2302(b)(9)(B) became
effective on December 27, 2012 , which is after the appellant’s nonselection for Vacancy
Number 770787 on December 20, 2012 . Pub. L. No . 112-19, 126 Stat. 1465 , 1465 .
Accordingly, the Board lacks jurisdiction over the appellant’s section 2302 (b)(9) claim
concerning this vacancy. See Hooker v. Department of Veterans Affairs , 120 M.S.P.R.
629, ¶¶ 10-15 (2014). Thus, we modify the initial decision to the extent that the
administrative judge considered whether the appellant’s protected activity under
5 U.S.C. § 2302 (b)(9)(B) was a contributing factor in his nonselection for Vacancy
Number 770787 . Any error in this regard is harmless because the administrative judge
based her finding that the a ppellant failed to prove the contributing factor element on
the fact that the selecting official for Vacancy Number 770787 did not know the
appellant and that there was no evidence that he, or any of the other individuals
involved in the selection process, knew the appellant or knew he had engaged in prior
protected activity . ID at 10.
5
¶7 If the appellant proves his prima facie case, then the burden of persuasion
shifts to the agency to prove by clear and convincing evidence that it would have
taken the same action in the absence of the appellant ’s protected disclosures or
activity . Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 12 (2016) . In
determining whether an agency has met its burden of proving that it would not
have selected th e appellant absent his protected disclosures or activity , 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 agenc y officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Carr v. Social Security
Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) . The Board does not view
the Carr factors as discrete element s and instead will weigh the factors together
to determine whether the evidence is clear and convi ncing as a whole . Campbell ,
123 M.S.P.R. 674 , ¶ 12.
The appellant proved that his protected disclosures and activity were a
contributing factor in his nonselection for Vacancy Num ber 1328199 , but not in
the other identified vacancies .
¶8 The administrative judge , in her initial decision, found that the appellant
only proved that his protected disclosures and activity w ere a contributing factor
in his nonselection for V acancy Number 1328199. ID at 9 -24. The appellant
challenges her finding s as to the other vacancies. PFR File, Tab 1 at 9 -10, 12 -15.
For the reasons discussed below, we agree with the administrative judge’ s
contributing factor determinations.
¶9 Citing hearing testimony, the administrative judge found that the
individuals involved in the selections for Vacancy Numbers 77 0787 , 1161320,
1418863, 1418855, and 1472669 did not know the appellant or had no knowledge
of him beyond his applications. ID at 10 -11, 19-20, 22 -24. She also found, based
upon her determination that his testimony was credible, that the selecting official
6
for Vacancy Number 821536 co uld not recall the appellant’s protected disclosures
and activity. ID at 12-15; IAF, Tab 15 at 13 -14. Further, the administrative
judge found that the selecting official for Vacancy Numbers 897081, 117 1251,
and 1076978, who testified at the hearing, did not know about the appellant’s
protected disclosures and activity . ID at 16-21; IAF, Tab 15 at 17 -18. The
administrative judge also found that, although the agency cancelled Vacancy
Number JI 801049 after it obtained an exception to the hiring freeze to fill the
position, and cancelled Vacancy Number 818751 when agency officials, who had
been awaiting an exception to the hiring freeze, did not resubmit the position for
hiring, the appellant did not proffer evidence that the cancellation was in
retaliation for his protected disclosures and activity. ID at 11 -12; I AF, Tab 15
at 15.
¶10 Observing that none of the officials involved in these nonselections knew of
the appellant’s protected activity when they made their decisions, and that there
was a lapse of 5 to 12 years between the activity and the nonselections, the
administrative judge found that the appellant did not establish contributing factor
through the knowledge/timing test of 5 U.S.C. § 1221 (e)(1). ID at 9 -10; see
Agoranos v. Department of Justice , 119 M.S.P.R. 498 , ¶¶ 21, 24 (2013)
(explaining that a lapse of more than 2 years between the protected activity and
the personnel ac tion is too great to satisfy the knowledge/timing test) . Therefore,
the administrative judge also considered whether the contributing factor element
might be established by alternative means, i.e., by considering evidence such as
the strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed at the relevant agency
officials, and whether these individuals had a desire or motive to retaliate against
the appellant. ID at 9 -10; see Salerno v. Department of the Interior ,
123 M.S.P.R. 230 , ¶ 13 (2016). Nevertheless, despite a detailed and thorough
analysis of the partic ular facts surrounding each of these 11 nonselections, the
administrative judge found insufficient evidence to support a finding of
7
contributing factor for any of them. ID at 9 -24. We see no reason to disturb
these finding s and the appellant has not pr esented any evidence that supports
disturbing the se findings . See Broughton v. Department of Health and Human
Services , 33 M.S.P.R. 357 , 359 (1987).
The appellant cannot prove a claim of retaliation as a perceived
whistleblower.
¶11 The appellant next assert s that agency officials refused to hire him because
of his reputation as a whistleblower . PFR File, Tab 1 at 6. He argues that, even
if his protected disclosures and activity occurred more than 2 years prior to his
nonselection, he still could prove a whistleblower retaliation claim based upon his
status as a perceived whistleblower . Id. (citing King v. Department of the Army ,
116 M.S.P.R. 689, ¶¶ 8-11 (2011 )). Accordingly, he challenges the
administrative judge ’s failure to analyze his claim s of retaliation as such . Id. As
discussed below, we disagree with this argument .
¶12 An employee is entitled to protection as a perceived whist leblower if he can
show that the agency officials involved in taking the personnel action believed
that he made protected disclosures or engaged in protected activity, regardless of
whether he actually did so. Rumsey , 120 M.S.P.R. 259 , ¶ 7. In a perceived
whistleblower case , the issue of whether the appellant actually made pro tected
disclosures is immaterial, and the issue of whether the agency perceived the
appellant as a whistleblower will essentially stand in for that portion of the
Board ’s analysis . King , 116 M.S.P.R. 689, ¶ 8. In some circumstances, such as
when an appellant is alleging he was perceived to have made disclosures
regarding matters distinct from his actual protected activity, it may be appropriate
to engage in a perceived whistleblower analysis even when the appellant has
proven that he actually made protected disclosures. However, in this case, the
appellant’s perceived whistleblower claim is based entirely on the same set of
facts as his claim of retaliation for actual protected activity . Spe cifically, the
appellant is claiming perceived whistleblower status based on his disclosures
8
concerning contracting matters, his assistance to another employee in filing a
Uniformed Services Employment and Reemployment Rights Act complaint, and
his notific ation to agency management that he had filed an OSC complaint
concerning his nonselections. PFR File, Tab 1 at 6; IAF, Tab 29 at 19 -21, Tab 5
at 51 -55, Tab 51, Hearing Recording, Track 2 (testimony of M.G.), Track 6
(testimony of W.W.) The administrative judge considered these matters and
correctly found that they constituted protected activity in their own right. ID
at 7-8, 21 -22, The appellant has not explained, nor do we perceive, how the
outcome of the appeal would change if the Board considered the se same matters
under a perceived whistleblower theory. Accordingly, we find that the
appellant’s argument does not provide a reason for disturbing the initial decision.
The appella nt has not demonstrated that his protected disclosures and
activity w ere a contributing factor in his nonselection for Vacancy
Numbers 897081 and 1076978 based upon his allegation that the selecting
official had constructive knowledge of his disclosures or activity .
¶13 The appellant also asserts that, although the selecting offic ial for Vacancy
Numbers 897081 and 1076978 never met him, the official had constructive
knowledge of his disclosures and activity based upon the comments of other
agency officials . PFR File, Tab 1 at 9-10; IAF, Tab 15 at 17 -18. An appellant
can show that a protected disclosure or protected activity was a contributing
factor in a personnel action by proving that the official taking the action had
constructive knowledge of the protected disclosure. Bradley v. Department of
Homeland Security , 123 M.S.P.R. 547, ¶ 15 (2016). He may establish an
official ’s constructive knowledge of a protected disclosure or protected activity
by demonstrating that an individual with actual knowledge of the disclosure
influenced the official accused of taking the retaliatory action. Id.
¶14 The administrative judge considered the testimony of the other agency
officials specified by the appellant and f ound that the individuals did not know of
the disclosures or activity at the time of the appellant’s nonselection . ID
at 13-14, 16 -17. Specifically, she considered the testimony of one of the officials
9
that, although he recalled the occurrence of certain investigations that arose in the
early 2000s , he did not rec all that the investigations arose from the appellant’s
disclosures or activity . ID at 13-14. She also found that, although the selecting
official consulted with the other employee, the other em ployee’s testimony
reflected that he was not aware of the appellant’s prior disclosures. ID at 16 -17.
Based on these well -reasoned conclusions , we find that the appellant did not
establish that the individuals involved in the selection process had actual
knowledge of his disclosures or activity and that the selecting official did not
have constructive knowledge of the appellant’s disclosures. See Easterbrook v.
Department of Justice , 85 M.S.P.R. 60 , ¶ 11 (2000) (finding that the appellant
failed to prove that his protected disclosures were a contributing factor in a
personnel action because he did not show that the employee relations specialist
knew of his disclosures or that individuals with actual knowledge of the
disclosures influenced her). Thus, we agree with the administrative judge that the
appellant only proved that his protected discl osures and activity were a
contributing factor in his nonselection for Vacancy Number 1328199. ID at 9 -24.
The agency proved by clear and convincing evidence that it would not have
selected the appellant regardless of his protected disclosures or protec ted activity .
¶15 The administrative judge found that the agency proved by clear and
convincing evidence that it would not have selected the appellant for Vacancy
Number 1328199 , a Supervisory Contract Specialist position , regardle ss of his
protected disclosur es and activity , because the agency had strong reasons for not
selecting him and it only had a slight motive to retaliate against him . ID at 24-29.
The appellant challenges the administrative judge ’s findings regarding Carr
factor one: the strength of t he agency’s reasons for not selecting him .4 PFR File,
Tab 1 at 7 -8, 10 -12. In particular, he argues that the agency did not properly
4 The appellant has not challenged, and we discern no basis to disturb, the
administrative judge’s analysis concerning Carr factors two and three.
10
consider his qualifications and failed to properly weigh his education, training,
work experience, awards , and references. Id. Further, he asserts that the agency
“blacklisted him” and found that he did not have recent experience, even though
he did. Id. at 9.
¶16 The administrative judge found that the agency had strong reasons for not
hiring the appellant, who was 1 of 61 applicants. I D at 25 ; IAF, Tab 15 at 87-98.
She considered the testimony of agency officials involved in the selection who
stated that they considered that the appellant did not take a relevant leadership
course. ID at 25. T hey also considered each applicant’s contracting officer
experience, contract specialist experience, and supervisory experience, including
length, level , and recency of such experience. ID at 25 -27. Another official
testified that the appellant’s experience was more than 15 years old and that
relevant processes and procedures had changed in the past 15 years based upon
new technology. ID at 26. Although the appellant asserted that his years as an
attorney handling contracting matters and his experience from 2011 to 2015 as an
adjunct professor constitute recent contracting experience that reflects his current
capability to handle the position, the administrative judge found compelling the
testimony of agency official s who stated that this did not constitute recent
relevant experience . ID at 2 6-27.
¶17 We must defer to the administrative judge’s findings crediting the test imony
of these agency officials because they are implicitly based upon the credibility
and demeanor of these witnesses. See Purifoy , 838 F.3d 1367 , 1372 (Fed. Cir.
2016) . Further, we agree with the administrative judge that the individuals who
were selected for the position had significantly more recent rel evant experience
than did the appellant. ID at 29; IAF, Tab 15 at 99 -133. Accordingly, we agree
with the administrative judge ’s findings that the agency had strong reasons for
not selecting the appellant and that the agency , therefore, proved by clear an d
11
convincing evidence that it would have made the same decision absent his
protected disclosures and activity .5 ID at 24-29.
The appellant ’s remaining arguments do not provide a reason for disturbing the
initial decision.
¶18 The appellant asserts that the administrative judge erred by failing to
compel evidence from an individual that related to the protected activities and
OSC complaint of another employee that he assisted while he was employed at
the agency. PFR File, Tab 1 at 16. He also argues general ly that the
administrative judge improperly denied testimony that would have established his
qualifications for the relevant positions and the knowledge of agency officials
about his protected disclosures and activity. Id. An administrative judge has
broad discretion in ruling on discovery matters, and absent an abuse of discretion ,
the Board will not find reversible error in such rulings . Kingsley v. U.S. Postal
Service , 123 M.S.P.R. 365, ¶ 16 (2016). The appellant ’s arguments do not
demonstrate an abuse of discretion and thus they do not provide a reason for
disturbing the initial decision.
¶19 The appellant also asserts that the administrative judge should not have
accepted the agency file because it was submitted after the filing deadline. PFR
File, Tab 1 at 16. The administrative judge issued a jurisdiction order on April 5,
2016 , and ordered the agency to respond by April 2 5, 2016 . IAF, Tab 3. On
April 22, 2016 , the agency requested an extension of this deadline , which the
administrative judge granted until May 3, 2016. IAF, Tab s 6-7. The ag ency filed
5 The appellant asserts that he should have been considered for noncompetitive
placement for “Vacancy 80149.” PFR File, Tab 1 at 6, 15. To the extent that the
appellant is attempting to refer to Vacancy Number JI 801049, this vacancy was
cancelled and thus his argument does not provide a reason for disturbing the initial
decision. IAF, Tab 15 at 226. The appellant further argues that t he administrative
judge should have addressed his argument that the agency improperly denied him
noncompetitive placement for all vacancies. PFR File, Tab 1 at 6. The appellant has
provided no basis to support this argument , and thus , it also does not pr ovide a reason
for disturbing the initial decision. See Broughton , 33 M.S.P.R. at 359.
12
its response on that date. IAF, Tab 8. The administrative judge ordered the
agency to submit the agency file by May 12, 2016, and it did so. IAF, Tabs 9, 15.
To the extent that the appellant is challenging the administrative judge ’s ruling to
grant the agency an extension to file its jurisdictional response or otherwise
challenge s the agency ’s submission o f the agency file, we find that he has not
demonstrated the administrative judge ’s abuse of discretion in any way. Thus, he
has not prov ided a reason for disturbing the initial decision . See Kingsley ,
123 M.S.P.R. 365 , ¶ 16.
NOTICE OF APPEAL RIG HTS6
The initial d ecision, 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 rep resent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the no tice, the
Board cannot advise which option is most appropriate in any matter.
13
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
14
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
15
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 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.7 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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circ uit, you must submit your petition to the court at the
following address:
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, 201 7. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal C ircuit or any other circuit court 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants be fore the 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 | FITTEN_STEVEN_M_SF_1221_16_0390_W_1_FINAL_ORDER_2055291.pdf | 2023-08-01 | null | SF-1221 | NP |
2,824 | https://www.mspb.gov/decisions/nonprecedential/POE_JASON_B_SF_1221_13_0515_W_1_FINAL_ORDER_2055301.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JASON B. POE,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-1221 -13-0515 -W-1
DATE: August 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason B. Poe , Vista, California, pro se.
Thom as Cook , San Diego, 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
denied his request for corrective action in this indivi dual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonp recedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identi fied by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of stat ute or 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 discr etion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations , section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for g ranting the petition for review.
Therefore, we DENY the petition for review . We MODIFY the initial decision to
supplement the administrative judge’s analysis concluding that the agency proved
by clear and convincing evidence that it would have suspended the appellant
absent his whistleblowing activity. Except as expressly modified by this Final
Order, we AFFIRM the initial decision.
BACKGROUND
¶2 In this IRA appeal, the appellant, an Engineer primarily employed in the
agency’s Small Business Innovation Rese arch (SBIR) program of its Space and
Naval Warfare Systems Command (SPAWAR) , contended that the agency
suspended him for 5 days in retaliation for his alleged protected disclosures
involving agency contracts with SBIR contractors Metron and Western DataCom ,
and for filing complaints with the Equal Employment Opportunity Commission
and the Office of Special Counsel (OSC) . Initial Appeal File (IAF), Tabs 1, 16,
92. Concerning Metron, the appellant alleged that he disclosed that the contractor
was double bil ling the G overnment because it was using the same computer code
on multiple contracts. IAF, Tab 16 at 12 -13. Concerning Western DataCom , the
appellant made two disclosures —one involving the loss of funds on the contract
and one regarding the potential lo ss of classified information —and both were
3
related to the consequences of the company’s bankruptcy . Id. at 13 -14. The
administrative judge found that the appellant established jurisdiction over his
appeal and , after holding a hearing, she denied his requ est for corre ctive action.
IAF, Tab 113, Initial Decision (ID). She found that, even though he established
that one of his disclosure s was protected and was a contributing factor in the
agency’s decision to suspend him, the agency proved by clear and con vincing
evidence that it would have suspended him in the absence of that disclosure . ID
at 19.
¶3 In his petition for review and supplements thereto , the appellant essentially
reargues his case and attaches several documents. Petition for Review (PFR)
File, Tabs 1 -10. He also argues that the administrative judge was biased in favor
of the agency. PFR File, Tab 1 at 9 -12. In the narrative portion of his
supplement, the appellant prov ides a timeline of his case and challenges the
administrative judge’s finding s that he went outside of his chain of command and
that he worked on SBIR matters in contravention of his supervisors’ instructions .
PFR File, Tab 3 at 4 -17. The agency responds in opposition to the appellant’s
petition for review , and the appellant provides a reply to the agency’s response.
PFR File, Tabs 11 -12.
DISCUSSION OF ARGUME NTS ON REVIEW2
¶4 The administrative judge correctly determined that the protected disclosure
and the personnel action in this matter occurred before the December 27, 201 2
enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA) ,
Pub. L. No. 112 -199, 126 Stat. 1465 . ID at 6 n.2 . Therefore, we agree with her
determination that the pre -WPEA standards concerning the scope of an IRA
appeal apply in this matte r. Id.; see Scoggins v Department of the Army ,
2 We have reviewed the relevant legislation enacted since the filing of this appeal and
find that it does not impact the outcome.
4
123 M.S.P.R. 592 , ¶ 7 (2016). We also agree with the administrative judge ’s
decision to apply the WPEA’s expanded definition of a protected disclosure,
considering the Board’s decision in Day v. Department of Homeland Security ,
119 M.S.P.R. 589, ¶10-12 (2013) , which found that this expansion constituted a
clarification of —rather than a change in —existing law . ID at 6 n.2.
¶5 Under pre -WPEA law, in reviewing the merits of an IRA appeal, the Board
will examine whether the appellant proved by preponderant evidence that he
engaged in whistleblowing activity by making a protected disclosure under
5 U.S.C. § 2302 (b)(8) and that such whistleblowing activity was a contributing
factor in an agency personnel action. Mithen v. Department of Veterans Affairs ,
119 M.S.P.R. 215 , ¶ 11 (2013) . If so, the Board must order corrective action
unless the agency establishes by clear and convincing evidence that it would have
taken the same personnel action absent the disclosure . Id.
¶6 A protected disclosure fo r purposes of whistleblowing is one that the
appellant reasonably believed evidenced gross mismanagement, a gross waste of
funds, an abuse of authority, a substantial and specific danger to public health or
safety, or any violation of a law, rule, or regul ation. 5 U.S.C. § 2302 (b)(8)(A).
Gross mismanagement means a management action or inaction that creates a
substantial risk of significant adverse impact upon the agency’s ability to
accomplish i ts mission. White v. Department of the Air Force , 63 M.S.P.R. 90 ,
95 (1994). Gross waste of funds constitutes a more than debatable expenditure
that is significantly out of proportion to the benefit reason ably expected to accrue
to the G overnment . Van Ee v. Environmental Protection Agency , 64 M.S.P.R.
693, 698 (1994).
¶7 To establish that the appellant had a reasonable belief that a disclosure met
the criteria of 5 U.S.C. § 2302 (b)(8), he need not prove that the condition
disclosed actually established a regulatory violation or any of the other situations
detailed under 5 U.S.C. § 2302 (b)(8)(A)(ii); rather, the appellant must show that
the matte r disclosed was one that a reasonable person in his position would
5
believe evidenced any of the situations specified in 5 U.S.C. § 2302 (b)(8). Garst
v. Department of the Army , 60 M.S.P.R. 514 , 518 (1994). The test for
determining whether an employee’ s belief regarding the disclosed matter is
reasonable is whether a disinterested obser ver with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the actions of the agency evidence the wrongdoing disclosed .
Lachance v. White , 174 F.3d 1378 , 1381 (Fed. Cir. 1999).
The appellant failed to establish that h is disclosure of alleged double billing by
Metron was protected.
¶8 Regarding the appellant ’s first purported disclosure, that agency contractor
Metron was double billing the Government by re using source code it had written
for one contract in subsequent contracts, the administrative judge found that the
appellant failed to establish that a r easonable person in his position would have
believed that M etron w as double billing . ID at 10. In support, she cited the
appellant’s lack of evidence that Metron actually was reusing the same sourc e
code in multiple contracts , the detailed and straightforward testimony of agency
officials that they had found no evidence of double billing , and the advice of
agency legal counsel that Metron’s ownership of the source code allowed it to
reuse the code as a matter o f right. ID at 9 -11.
¶9 Irrespective of whether the appellant was alleging that this represented
gross m ismanagement or a gross waste of funds, the administrative judge found
that the appellant failed to prove by preponderant evidence that a reasonable
person in his position would believe that Metro n actually was double billing the
agency. ID at 8 -9. We ag ree. Given the appellant’s failure in this regard , we
agree with the administrative judge that he failed to establish that he made a
protected disclosure. See Horton v. Department of the Navy , 60 M.S.P.R. 397,
403 (1994) ( finding that , because the record indicated no credible basis for the
appellant’s assertions of wrongdoing, he failed to establish that he made a
6
protected disclosur e), aff’d , 66 F.3d 279 (Fed. Cir. 1995) , superseded by statute
on other grounds, as stated in Day , 119 M.S.P.R. 589 , ¶¶ 14, 18.
The appellant established that his disclosure of a gross waste of funds involving
the Western DataCom contract was a contributing factor in t he agency’s decision
to suspend him.
¶10 The appellant asserted two alleged protected disclosures involvi ng the
Western DataCom contract: (1) that Western DataCom committed fraud because
the agency had paid over $1 million on the contract but never received t he
software product it contracted for; and (2) that Western DataCom possessed
confidential agency information that could be lost as a consequence of its
bankruptcy. ID at 11; IAF, T abs 1, 16, 92. T he administrative judge found that
the appellant failed t o establish the latter of those alleged disclosures, i.e., that
Western DataCom’s failure and bankruptcy represented gross mismana gement in
the context of the agency’s $7 billion small business contracting budget. ID
at 12-13. She also found that the app ellant failed to establish that the latter
represented gross mismanagement because he failed to show that the agency’s
actions created a substantial risk o f a significant adverse impact on its ability to
accomplish its mission. ID at 1 3. We agree with th e administrative judge’s
analysis.
¶11 By contrast , however, the administrative judge found that the appellant did
establish that a reasonable person in his position would believe that the agency’s
expenditure of over $1 million in funds on the Western DataC om contract,
without receiving any benefit in return , constituted a gross waste of funds ,
finding ample evidence to show that there was more than a debatable expenditure
at issue . ID at 13 -14. The administrative judge further found that , by virtue of
the knowledge/timing test, this disclosure was a contributing factor in the
agency ’s decision to suspend the appellant given that there was no dispute that
both the proposing and deciding officials were aware of his disclosure and that
7
his suspension occurred less than 5 months after he made it. ID at 14-15. We
agree.
The agency established by clear and convincing evidence that it would have
suspended the appellant in the absence of his whistleblowing activity.
¶12 In determining whether an agency has shown by c lear and convincing
evidence that it would have taken the same personnel action in the absence of the
whistleblowing activity , the Board will co nsider the following factors: the
strength of the agency’ s evidence in support of its action; the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and any evidence that the agency takes similar actions
against employees who are not whistleblowers but who are otherwise similarly
situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir.
1999) . The Board does not view the Carr factors as discrete elements, each of
which the agency must prove b y clear and convincing evidence , but rather weigh s
the factors together to determine whether the evidence is c lear and convincing as
a whole. Phillips v. Department of Transportation , 113 M.S.P.R. 73 , ¶ 11 (2010).
Crucial to this analysis , the Board must consider all of the evide nce, including
that which fairly detracts from the conclusion that the agency met its burden.
Whitmo re v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012).
¶13 Regarding the strength of the agency’s evidence in support of its action , we
agree with the administrative jud ge’s analysis that the appellant gave the agency
ample reason to issue the suspension in question absent his whistleblowing
activity based on the charges of: (1) insubordination; (2) use of disrespectful
language towards other personnel; and (3) failure t o follow his chain of
command . ID at 17 -18; see Miller v. Department of Justice , 842 F.3d 1252 ,
1257 -58 (Fed. Cir. 2016) (referring to the agency’s burden as a showing of
“independent causation”). For example, regarding charge 2, the appellant’s email
provides strong evidence in support of the agency’ s deci sion to discipline him
independent of any testimony . See Miller , 842 F.3d at 1261 . Moreover, to the
8
extent the appellan t argues th at he was disciplined for the act of making his
disclosure when he sent the email , both the U.S. Court of Appeals for the Federal
Circuit and the Board consistently have held that engaging in protected activity
does not shield an employee from d iscipline for wrongful or disruptive conduct
like that established in this matter . Carr , 185 F.3d at 1326; Russell v.
Department of Justice , 76 M.S.P.R. 317 , 325 (1997).
¶14 Moreover, as to charge 1, t he agency gave the appellant clear, written
instructions to refrain from working on SBIR matters and the record reflects that
he nevertheless continued to do so. ID at 16; IAF, Tab 5 at 201 -04, 249, 255 -59,
266, 294. The appellant’s repeated defiance of this orde r provides strong
evidence of his insubordination , i.e., the willful and intentional refusal to obey an
authorized order that his supervisor wa s entitled to have obeyed. See, e.g.,
Phillips v. General Services Administratio n, 878 F.2d 370 , 373 (Fed. Cir. 1989) .
As to charge 3, t he record reflects that the appellant sent an email to someone in
his organization that he admits on review he previously did not know, PFR File,
Tab 4 at 4, accusing that individual, as well as others, of serious misconduct, IAF,
Tab 5 at 243 -45. The appellant not only copied the SPAWAR C ommander on the
email, he also soug ht to follow up with the C ommander in person , ID at 16; IAF,
Tab 5 at 247 , twice going outside the chain of command in an organization in
which one would expect employees to respect such concerns regardless of the
nature of the communication, ID at 16; see Chambers v. Department of the
Interior , 116 M.S.P.R. 17 , ¶ 55 (2011) (finding that going outside the chain of
command may const itute a basis for disciplinary action ). Therefore , the
appellant’s 5-day suspension appears to be a reasonable response by the agency to
invoke progressive discipline in the context of the appellant’s intentional and
repeated refusal to follow his supervi sor’s August 11, 2011 instructions to cease
nearly all of his work on SBIR matters and to use his chain of command properly .
IAF, Tab 5 at 95-98, 132 -35, 299 .
9
¶15 In addition, a s the administrative judge recounted in the initial decision, the
proposing offici al testified that the suspension was intended to “try to get a good
employee back” and the deciding official testified that he wanted to get the
appellant to correct his inappropriate behavior. ID at 17. Based on her
observation of this testimony, which she found was “specific, detailed, consistent
with [the] record, and not inherently improbable,” she found th at the strength of
the evidence weighed strongly in the agency’s favor. ID at 17 -18; see Haebe v.
Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) ( explaining that the
Board must defer to an administrative judge’ s credibility determinations when
they are based, explicitly or implicitly, on observ ing the demea nor of witnesses
testifying at a hearing; the Board may overturn such d eterminations only when it
has “ sufficiently sound ” reasons for doing so ). The appellant offers no
sufficiently sound reasons on review to upset the admin istrative judge’s
determinatio n. Thus, we agree with the administrative judge that the record
contains strong evidence in support of the agency’s action.
¶16 Concerning the motive to retaliate on the part of the agency officials
involved in the decision to suspend the appellant , the ad ministrative judge found
that they had little motive to retaliate against the appellant for his protected
disclosure . ID at 18. In making this determination, she consider ed hearing
testimony that problems with the Western DataCom contract were well known
long before the appellant’s whistleblowing activity and that it represented only a
small fraction of the SBIR contracting budget . ID at 18 -19; IAF, Tab 5 at 213 .
In addition, r egardless of the general opprobrium associated with the failure of
any partic ular contract, she found that , under such circumstances , the failure of
the Western DataCom contract would not appear to be particularly unusual such
that it would provide a significant motive for the individuals involved in the
decision to discipline the appellant as a form of retaliation against him . ID at 18.
We agree with the administrative judge’s reasoning.
10
¶17 Additionally , given the appellant’s assertion that 75% of such SBIR
contracts fail, we find that it is no more likely for other agency officials , i.e.,
those responsible for the agency’s performance overall, but neither directly
involved in the decision to discipline the appellant nor directly implicated in his
disclosure, to retaliate against him on account of his disclosure regarding the
Western DataCom contract . See Miller , 842 F.3d at 1261 -62 (finding that a
proper Carr analysis must consider whether general criticism of managers and
employees could motivate retaliation). Moreover, the administrative judge found
the proposing official credibl e when he testified that the proposal to suspend the
appellant was not motivated by his whistleblowing activities. ID at 19; see
Haebe , 288 F.3d at 1301. Further , we find that the appropriateness of the penalty
to the misconduct established, as noted abo ve, belies any implication that the
agency officials here had a strong motive to retaliate . Accordingly, we agree with
the administrative judge ’s conclusion that the agency officials demonstrated little
motive to retaliate.
¶18 On the third Carr factor, the a dministrative judge found that the appellant
had not identified any similarly situated nonwhistleblowers who were treated
more favorably than he was and that this factor therefore weighed in the agency’s
favor. ID at 19. This misstates the appropriate bu rden , as we are engaged here in
examin ing the agency’s case in support of its action . See Carr , 185 F.3d at 1323 .
Consistent with that endeavor, our reviewing court has observed that the agency ,
not the appellant, “ bears the risk associated with having n o evi dence on record for
this factor. ” Miller , 842 F.3d at 1262. Further , because it is the agency’s burden
of proof, when the agency fails to introduce relevant comparator evidence, the
third Carr factor cannot weigh in its favor. Smith v. General Serv ices
Administration, 930 F.3d 1359 , 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018). Thus, we find that,
contrary to the administrative judge’s finding, this factor does not weigh in the
agency’s favor. ID at 19. Nevertheless, e ven if the absence of such evidence
11
could be found to “cut slightl y against the Government,” Miller , 842 F.3d
at 1262 , we are left with the firm belief that the agency would have taken the
same action in the absence of the appellant’s protected disclosure based on the
strength of the ev idence in support of its action and the lack of a strong motive on
the part of agency officials to retaliate against the appellant for the protected
disclosure identified in this IRA appeal. See Carr , 185 F.3d at 1326 (noting that
the whistleblower protection statutes are not meant to prot ect employees from
their own misconduct).
The appellant fails to establish that the administrative judge was biased or that
she abused her discretion in conducting the proceedings.
¶19 The appellant also contends that the administrative judge was unfairly
biased in the agency’s favor. PFR File, Tab 1 at 9 -12. He argues that the
administrative judge denied him continuances to obtain counsel and to allow for a
witness to testify, deleted evidence from the record, and abused the
attorney‑client privilege to cens or individual testimony and prevent disclosure of
damaging information. Id. at 9-10. He also challenges the administrative judge’s
rulings on d iscovery and witnesses, contending that the administrative judge
engaged in ex parte conversations with agency counsel, and complains that she
denied his motion to move the hearing . Id. at 10-11.
¶20 Although the appellant sets forth several claims here, his contentions all
involve the manner in which the administrative judge conducted this proceeding.
An administr ative judge’s conduct during the course of a Board proceeding
warrants a new adjudication only if the administrative judge’s comments or
actions evidence “ a deep -seated favoritism or antagonism that would make fair
judgment impossible.” Bieber v. Departme nt of the Army , 287 F.3d 1358 ,
1362‑63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555
(1994)). As the following discussion indicates, t he appellant’s conclusory
allegations, for which he o ffers little support, do not meet this standard.
Moreover, in making a claim of bias, an appellant must overcome the
12
presumption of honesty and integrity on the part of the administrative judge.
E.g., Protopapa v. Department of Transportation , 14 M.S.P.R. 455 , 459 (1983).
The fact that the administrative judge does not accept the appellant’s assertions or
interpret testimony in the fashion th e appellant claims is correct does not
constitute bias. Id. Here, the appellant’s contention of bias is not based on any
evidence of record but rather only demonstrates his mere disagreement with the
administrative judge. Thus, we find the appellant’s c laim of bias to be without
merit.
¶21 Regarding the continuance the appellant sought so as to obtain counsel, the
record reflects that his counsel withdrew on December 27, 2013 , because the
appellant had engaged him only for the mediation process, whic h had co ncluded.
IAF, Tab 53. The administrative judge’s order denying the appellant’s July 10
and 11 , 2016 motion s to reschedule the hearing indicates that the appellant, who
had proceeded pro se in the interim, IAF, Tab 71, raised the issue of needing new
coun sel, as well as a purported conflict, for the first time in that motion , which he
filed following the prehearing conference and after agreeing to hearing dates ,
IAF, Tabs 66, 95, 99 -100. Thus, the record reflects that the appellant had ample
opportunity t o obtain counsel and that he waited until the eve of the hearing to
request a continuance . The record also reflects that the appellant received the
witness subpoena s he sought on the day he requested them , over 10 days before
the scheduled hearing , IAF, T abs 93-94, and that , despite the appellant’s failure
to file prehearing submissions in accordance with the administrative judge’s
orders, the administrative judge nevertheless granted the witnesses for which the
appellant provided the required information, IAF, Tab 89 at 18 -23, Tab 92 at 5.
¶22 Importantly, the appellant fails to identify the specific witnesses on review
that the administrative judge purportedly denied him or what t heir testimony
would have entail ed. Moreover, an administrative judge has wid e discretion to
control the proceedings, including the authority to exclude testimony she believes
would be irrelevant, immaterial, or unduly repetitious. Parker v. Department of
13
Veterans Affairs , 122 M.S.P.R. 353 , ¶ 21 (2015). The appellant has not shown
the administrative judge abused her discretion in denying his request for certain
witnesses or in otherwise controlling the hearin g-related proceedings .
¶23 An administrative judge also has broad discretion in ruling on discovery
matters, and absent an abuse of discretion, the Board will not find reversible error
in such rulings. E.g., Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 16
(2016). The appellant alleges that the administrative judge denied his motions to
compel disc overy, but he does not identify which of his several motions to
compel that he is challenging here , nor does he attempt to argue why the
administrative judge’s denial was wrong . PFR File, Tab 1 at 11. The record
reflects that the administrative judge denied the appellant’s August 4, 2013
motion to compel becaus e it failed to comply with the B oard’s discovery
procedures but that she granted his motion to compel depositions . IAF,
Tabs 25-26, 37. After a short suspension to allow the parties to engage in an
ultimately unsuccessful attempt to mediate their dispute , IAF, Tab s 49, 51, the
appellant filed several more motions to compel, IAF, Tabs 70, 77 -79, 81 , which
the administrative judge also denied, finding that the appellant’s requests were
overly broad and that he sought material s that were either immaterial, irrelevant,
or were not calculated to lead to the discovery o f admissible evidence, IAF,
Tab 87. Nevertheless, regardless of which motion to compel the appellant is
challenging, he has not shown that the administrative judge abused her
considerable discretion in this regard.
¶24 The appellant submitted several documents with his petition for review,
many of which were submitted below and none of which he asserts are new
evidence that was unavailable despite his due diligence befo re the record closed.
PFR File, Tabs 1 -10. We have not considered them. Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980) (holding t hat the Board will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the reco rd was closed despite the party’ s due
14
diligence). Lastly, he asserts that the agency is interfering with a request for
leave under the Family and Medical Leave Act of 1993 that he submitted to his
current employer at Camp Pendl eton. PFR F ile, Tab 2 at 17. This claim is
beyond the scope of this action, as it involves the appellant’s current employer,
not the respondent agency. Moreover, there is no evidence to indicate that the
appellant has exhausted his administrative remedies before OSC on this claim,
such that it might be considered in the context of this IRA appeal. Yunus v .
Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001) .
NOTICE OF APPEAL RIG HTS3
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 na ture of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appea l rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their ju risdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in th e dismissal of your case by your
chosen forum.
Please read 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.
15
about whether a particular forum is the appropriate o ne to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court 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
16
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an 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 r epresentative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrim ination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court ‑appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
17
If you submit a request for review to the EEOC via commercial delivery or
by a method requir ing a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 20 12. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b ) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction .4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
4 The original statutory provision that provided for judicial review of certain
whistleblo wer claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U. S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 ap peals can be 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 | POE_JASON_B_SF_1221_13_0515_W_1_FINAL_ORDER_2055301.pdf | 2023-08-01 | null | SF-1221 | NP |
2,825 | https://www.mspb.gov/decisions/nonprecedential/ADAMS_CAROLINE_AT_1221_18_0080_W_1_FINAL_ORDER_2055397.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CAROLINE ADAMS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-1221 -18-0080 -W-1
DATE: August 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Caroline Adams , Alexandria, Virginia, pro se.
Patricia Reddy -Parkinson , Esquire, Portsmouth, 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 her individual right of action (IRA) appeal for lack of jurisdiction .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 initial decision is based on an erroneous in terpretation 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 involv ed an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant exhausted her administrative remedy with the Office of
Special Counsel (OSC) but failed to nonfrivolously allege that she made a
protected disclosure or engage d in protected activity that was a contributing
factor to a personnel ac tion, we AFFIRM the initial decision.
BACKGROUND
¶2 At the time relevant to this appeal, t he appellant was employed by the
agency as a Human Resources Officer. Initial Appeal File (IAF), Tab 1 at 1. On
November 2, 2017, she filed an IRA appeal with the Board, claiming that she was
suspended for 7 days in November of 2015, not given a promotion in February of
2016, and experienced a hostile work environment and harassment because she
reported to her congressman that the agency performed illegal actions to pass an
Office of Personnel Management (OPM) delegated examination authority
inspection and that it engaged in illegal hiring practices. Id. at 5 , 7. The
administrative judge issued a jurisdictional order informing the appellant of what
she was required to prove to establish Board jurisdiction over her claim. IAF,
Tab 3. The appellant responded, arguing that she was unable to retain counsel to
assist in presenting evidence due to the impending holidays. IAF, Tab 6 at 4.
3
She also indicated that she ha d filed a complaint with OSC, but that it terminated
its investigation. Id.
¶3 On December 1, 2017, the administrative judge issued an initial decision,
wherein she considered OSC’s August 28, 2017 close -out letter —the only
evidence submitted below by the appellant regarding exhaustion —but ultimately
found that the appellant failed to prove that she exhausted her administrative
remedy with OSC. IAF, Tab 8, Initial Decision (ID) at 3 -4. Accordingly, she
dismissed the appeal for lack of jurisdiction. ID at 4.
¶4 The appellant has filed a petition for review arguing that she did not receive
a hearing and submitting, for the first time, OSC’s August 15, 2017 preliminary
determination letter. Petition for Review (PFR) File, Tab 1 at 4, 6 -10. The
agency respond ed to the appellant’s petition for review , and she filed a reply .
PFR File, Tabs 3 -4.2
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board has jurisdiction over an IRA appeal if the appellant proves by
preponderant evidence that she exhausted her administrative r emedies before
OSC and makes nonfrivolous allegations that (1) she made a protected disclosure
described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302 (a). Edwards v.
Department of Labor , 2022 MSPB 9 , ¶ 8 , aff’d , No. 2022 -1967, 2023 WL
2 With the appellant’s reply, she includes a copy of an OSC complaint. PFR File, Tab 4
at 32 -59. This complaint is dated June 25, 2012 , and references case number MA -12-
3534 , and therefore, appears to predate all the allegations in the instant appeal. All the
remaining OSC correspondence submitted by the appellant references case number
MA-17-2121. IAF, Tab 1 at 10 -15; PFR File, Tab 1 at 6 -10, Tab 4 at 6 -10. Thus, it is
unclear whether the appell ant is asserting that th e 2012 OSC complaint corresponds
with her current claims before the Board. Regardless, as further explained below, we
otherwise conclude that the appellant exhausted her administrative remedy with OSC.
4
4398002 (Fed. Cir. July 7, 2023) ; 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) .
The appellant proved by preponderant evidence that she exhausted her
administrative remedy with OSC.
¶6 To satisfy the exhaustion requirement of 5 U.S.C. § 1214 (a)(3), an appellant
must only show that she provided OSC with a sufficient basis to pursue an
investigation into her allegations of whistleblowing reprisal. Chambers v.
Department of Homeland Security , 2022 MSPB 8 , ¶ 10. Generally, exhaustion
can be demonstrated through the appellant’s OSC complaint, evidence the
origina l complaint was amended (including but not limited to OSC’s
determination letter and other letters from OSC referencing any amended
allegations), and the appellant’s written responses to OSC. Mason v. Department
of Homeland Security , 116 M.S.P.R. 135 , ¶ 8 (2011) . Alternatively, exhaustion
may be prove n through other sufficiently reliable evidence, such as an affidavit or
declaration a ttesting that the appellant raised with OSC the substance of the facts
in her appeal. Chambers , 2022 MSPB 8 , ¶ 11.
¶7 In the initial decision, the administrative judge found that, apart from the
August 28, 2017 close -out letter, there was “no additional information indicating
that the appellant gave sufficient information to OSC to conduct an investigation”
into her broad all egations. ID at 4. Regardless of whether we agree with this
finding, on review, the appellant supplements her submissions regarding the
exhaustion requirement. With her petition for review, she submits , for the first
time , OSC’s August 15, 2017 preliminary determi nation letter .3 PFR File, Tab 4
3 Generally, the Board will not consider evidence submitted for the first time on review
absent a showing that the documents and the information contained in the documents
were unavailable before the record closed despite due diligence and the evidence is of
sufficient weight to war rant an outcome different from that of the initial decision.
Cleaton v. Department of Justice , 122 M.S.P.R. 296 , ¶ 7 (2015) , aff’d, 839 F.3d 1126
(Fed. Cir. 2016) . However, because the appellant’s evidence concerns the question of
5
at 6 -10. In that letter , OSC reference s the appellant’s allegations that she
reported alleged hiring and recruitment violations to a U.S. Senator and a hostile
work environment to a U.S. House of Representatives staffer on October 22,
2015. PFR File, Tab 4 at 6. These allegations are similar to her allegations
before the Board that she was subjected to reprisal for disclosing to a
congressman that the agency committed “illegal actions” to pass an OPM
delegated examination authority inspection and that it engaged in illegal hiring
practices. IAF, Tab 1 at 5. Therefore, we conclude that the appellant provided
OSC with a sufficient basis to pursue an investigation into her claims of
whistleblower reprisal. See Chambers , 2022 MSPB 8 ¶ 10. Accordingly, we
modify the initial decision to find that the appellant proved that she exhausted her
administrative remedy with OSC. See id .
The appellant failed to nonfrivolously allege that she made a protected disclosure
or engaged in a protected activity that was a contributing factor in a personnel
action .
¶8 Assuming, without finding, that the appellant nonfriv olously alleged that
she made a protected disclosure or engaged in a protected activity,4 we
jurisdiction, and jurisdiction is always before the Board, we consider it here. See Lovoy
v. Department of Health and Human Services , 94 M.S.P.R. 571 , ¶ 30 (2003).
4 The appellant’s allegations that she disclosed to Congress that the agency performed
illegal actions to pass an OPM inspection and engaged in illegal hiring practices do not
contain sufficient detail to determine whether she is alleging that an agency official
engaged in any of the wrongdoing set forth in 5 U.S.C. § 2302 (b)(8). IAF, Tab 1 at 5.
Notably, she does not allege any specific actions that were taken, who allegedly took
those actions, or why she believes those actions to be illegal. Id. Rather, her bare
assertions amount to the legal conclusion that unknown agency officials engaged in
undefined illegal acts, and such allegations are insufficient to meet the nonfrivolous
allegation standard. See Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶ 13
(2006); see also 5 C.F.R. § 1201.4 (s) (explaining that a nonfrivolous allegation must be
“more than conclusory”) . Nonetheless , on December 20, 2019, Congress passed the
National Defense Authorization Act (NDAA) of 2020, which amended 5 U.S.C.
§ 2302 (b)(8) to add subsection (C), which explicitly covers disclosures to Congress
when such disclosures are otherwise covered under subsection (B). See Pub. L. 116-92,
§ 5721, 133 Stat. 1198 , 2175 (2019). Here, the appellant alleges that she made her
6
nonetheless find that she failed to nonfrivolously allege that such a disclosure or
activity was a contributi ng factor in a personnel action . One way to establish the
contributing factor criterion is the knowledge/timing test, under which an
employee may nonfrivolously allege that the official taking the personnel action
knew of the disclosure or activity, and that the personnel action occurred within a
period of t ime such that a reasonable person could conclude that the disclosure or
activity was a contributing factor in the personnel action. Chambers , 2022 MSPB
8, ¶ 15; Salerno , 123 M.S.P.R. 230 , ¶ 13.
¶9 Here, the appellant has not alleged that any agency official responsible for ,
or who had influence over, her 7 -day suspension or the decision not to promote
her had any knowledge of her disclosure to Congress.5 IAF, Tabs 1, 6; PFR File,
Tabs 1, 4. Thus, she has failed to meet the knowledge prong of the
knowledge/t iming test and has, therefore , failed to nonfrivolously allege the
contributing factor element under that test .6 However, the knowledge/timing test
disclosure to Congress in October of 2015, PFR File, Tab 4 at 6, which is 5 years before
the pass age of the NDAA of 2020 . We need not determine whether this provision is
retroactive, and if so, whether the appellant's alleged disclosure is covered under it
because, as explained below, we otherwise find that she failed to nonfrivolously allege
that any disclosure or activity was a contributing factor in a personnel action .
5 A failure to promote and a 7 -day suspension qualify as personnel actions under
5 U.S.C. § 2302 (a)(2)(A)(ii), (iii). The appellant’s vague allegation that she was
harassed and subjected to a hostile work environment is not sufficiently specif ic, even
if construed liberally , to constitute a nonfrivolous allegation of a personnel action under
5 U.S.C. § 2302 (a)(2)(A)(xii). See Skarada v Department of Veterans Affairs ,
2022 MSPB 17 , ¶ 16 (explaining when an allegation of a hostile work enviro nment
constitutes an allegation of a personnel action).
6 Additionally, the appellant does not specifically allege in her pleadings when she
made her disclosure to Congress; however, communication from OSC shows that the
appellant alleged that her disclos ures to Congress occurred on or around October 22,
2015, PFR File, Tab 1 at 6. Regarding her alleged 7 -day suspension , the agency
proposed that action on October 16, 2015. IAF, Tab 1 at 7. The Board has found that a
disclosure occurring after the person nel action at issue could not have been a
contributing factor in that action. See Mason , 116 M.S.P.R. 135 , ¶ 27. Thus, the
appellant’s disclosure to Congress could not have been a contributing factor in the
7-day suspension . See id .
7
is not the only way for an appellant to satisfy the contributing factor element .
Dorney v. Department of t he Army , 117 M.S.P.R. 480 , ¶ 14 (2012). Other
evidence relevant to that inquiry is evidence pertaining to the strength or
weaknes s of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
whether these individuals had a desire or motive to retaliate against the appellant.
Id., ¶ 15.
¶10 Here, although the nature of the appellant’s alleged disclosure could
implicate the human resources office in which she is employed, her allegations
are brief and vague, and do not offer any details regarding any specific agency
official who was involved in t he alleged wrongdoing that she disclosed. IAF,
Tabs 1, 6; PFR File, Tabs 1, 4. Thus, she has not nonfrivolously alleged that her
whistleblowing was personally directed at an agency official responsible for the
personnel actions at issue here. Further, she makes no allegations that any agency
official responsible for the 7 -day suspension or denial of her promotion had a
desire or motive to retaliate against her. IAF, Tabs 1, 6; PFR File, Tabs 1, 4.
Finally, although the appellant challenges the agency’ s reason for suspending her
for 7 days, that challenge is summary in nature and asserts only that the agency’s
reason for the suspension was “false.” IAF, Tab 1 at 5. Assessing these factors
on balance, we find that the appellant failed to nonfrivolously allege that her
disclosure to Congress was a contributing factor in the 7 -day suspension or the
denial of a promotion.
¶11 Based on the foregoing , we modify the initial decision to find that the
appellant failed to nonfrivolously allege that she made a prot ected disclosure or
engaged in a protected activity that was a contributing factor in a personnel
action. Because we ultimately agree with the administrative judge that the
appellant failed to establish jurisdiction over her claims , we deny the appellant’ s
petition for review and affirm the initial decision as modified.
8
NOTICE OF APPEAL RIG HTS7
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 r eview and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide leg al advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, y ou should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefu lly each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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
10
race, color, religion, sex, national origin, or 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 decis ion.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuan t to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a proh ibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circ uit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/ probono for information regarding pro bono representation
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of compete nt jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
for Merit Systems Protection Board appellants before the 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/Cou rt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ADAMS_CAROLINE_AT_1221_18_0080_W_1_FINAL_ORDER_2055397.pdf | 2023-08-01 | null | AT-1221 | NP |
2,826 | https://www.mspb.gov/decisions/nonprecedential/SEARCY_HENRY_DC_1221_20_0455_W_1_REMAND_ORDER_2054773.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 -20-0455 -W-1
DATE: July 31, 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 for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review ,
REVERSE the initial decision, and REMAND the case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one tha t the Board has determined does not add
significantly to the body of MSPB case 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 appellant filed an appeal with the Board alleging that the agency had
(1) issued him an “[u ]nconstitutional [a]dmonishment ” and (2) restructured
certain agency components in a manner contrary to legislative intent . Initial
Appeal File (IAF), Tab 1 at 3, 5. With his initial appeal form, the appellant
provided a lengthy narrative statement. Id. at 9 -37. In this statement, the
appella nt made numerous allegations; however, the ostensible underlying thrust
of these allegations was that, in 2017, the agency underwent significant
restructuring and, as a result, his position became part of a different agency
component. Id. at 9. The appel lant was apparently led to believe that, despite
this restructuring, he would be able to continue performing various outreach
functions on behalf of the agency; however, agency personnel allegedly
unlawfully failed to allocate the requisite funding and beg an to mistreat him. Id.
at 9-37. The appellant requested a hearing on the matter. Id. at 2.
¶3 With his appeal, the appellant provided two letters from the Office of
Special Counsel (OSC). Id. at 7-8, 38. The letters indicated that OSC was
terminating its investigation into the following claims: (1) that an agency
director had “arbitrarily abuse[d] the Departmental Regulation 4070 -735-001 to
conduct management inquiries on employees in order to solicit inform ation not
based on personal knowledge”; (2) that an agency manager had “wasted
thousands of dollars on banners that were printed without the appropriate [equal
employment opportunity] Clause”; and (3) that the agency had conducted
investigations into the a ppellant. Id. at 7.
¶4 The administrative judge issued a jurisdictional order wherein he explained
the circumstances under which the Board has jurisdiction to adjudicate IRA
appeals, and he ordered the appellant to file specific evidence and argument
regar ding jurisdiction within 10 days of his order. IAF, Tab 3 at 2 -8. He also
indicated that the agency could file a response within 20 days of the order. Id.
at 8. The appellant did not respond to the jurisdictional order; instead, 17 days
3
after the issua nce of the same , he filed a motion to suspend the processing of his
appeal for 30 days. IAF, Tab 6 at 4 -5. The agency filed a response wherein it
(1) contended that the administrative judge should deny the appellant’s
suspension request and (2) argued th at the appellant had failed to establish Board
jurisdiction over his appeal. IAF, Tab 7 at 5 -9.
¶5 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 8, Initial Decision (ID) at 1, 6. The administrative judge concluded that,
insofar as the issue of jurisdiction was “well defined and ripe for a conclusive
determination,” the 30 -day suspension sought by the appellant was
“unnecessary.” ID at 5. He al so found that the appellant had failed to make a
nonfrivolous allegation of a personnel action. ID at 5-6. In so finding, the
administrative judge indicat ed that the OSC documentation provided by the
appellant identified his claimed personnel action as a n agency investigation;
however, the U.S. Court of Appeals for the Federal Circuit had recently found
that retaliatory investigations, in and of themselves, do not constitute personnel
actions. ID at 5-6 (citing in Sistek v. Department of Veterans Affairs , 955 F.3d
948, 954 -55 (Fed. Cir. 2020)). The administrative judge also indicated via
footnote that, despite the appellant’s submission of a 20 -page narrative statement,
he “could find no event that described a protected disclosure of information.” ID
at 3 n.3.
¶6 The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 10.2 In his petition for review,
the appellant alleges , among other things, that the administrative judge erred in
2 The appellant also has filed a “completed petition for review” containing additional
argument, PFR File, Tab 3, voluminous documentation in support of his petition(s) for
review, PFR File, Tabs 4 -8, a reply to the a gency’s response, PFR File, Tab 12, and two
motions for leave to file additional pleadings, PFR File, Tabs 14, 16. These filings,
however, are not material to the outcome of the jurisdictional issue .
4
finding that he failed to make a nonfrivolous allegation of a personnel action.
PFR File, Tab 1 at 8 -14.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence3 that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (1) he made a disclosure described
under 5 U.S.C. § 2302 (b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302 (a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417 , ¶ 8 (2016). A nonfrivolous allegation is
an assertion that, if proven, could establish t he matter at issue. 5 C.F.R.
§ 1201.4 (s). 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 plausibl e on its face.” Hessami v. Merit Systems
Protection Board , 979 F.3d 1362 , 1364, 136 9 (Fed. Cir. 2020). Any doubt or
ambiguity as to whether th e appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of affording the appellant a hearing .
Grimes v. Department of the Navy , 96 M.S.P.R. 595 , ¶ 12 (200 4).
¶8 For the following reasons, we find that the administrative judge ’s
conclusion that the appellant failed to make nonfrivolous allegation of a
personnel action was erroneous , we find jurisdiction, and we remand the appeal
for adjudication of the merits.
¶9 Here, the appellant alleged that agency management had: (1) changed both
his position description and his job duties ; (2) required him , on several occasions,
to relocate to less favorable office space; (3) falsely accused him of being absent
3 Preponderant evidence is the degree of relevant evid ence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5
without leave (AWOL) ; (4) admonished him; (5) surveilled him; and (6) sent him
“a series of abusive/pervasive” emails regarding his time and attendance and his
alleged refusal to relocate his office space . IAF, T ab 1 at 9 -37. As relevant to
these allegations, the definition of “personnel action” includes “any . . .
significant change in duties, responsibilities, or working conditions .” 5 U.S.C.
§ 2302 (a)(2)(A)(xii). The Board has found that, a lthough “significant change”
should be interpreted broadly to include harassment and discrimination that could
have a chilling effect on whistleblowing or otherwise undermine the merit system,
only agency actions that, individually or collectively, have pr actical consequence
for an appellant constitute a personnel action covered by section
2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs , 2022 MSPB 17 ,
¶¶ 15 -16. To this end, the agency actions must have a significant effect on the
overall nature and quality of the appellant’s working conditions, duties, or
responsibilities . Id. We find that the aforementioned allegation s meet this
threshold . See id., ¶ 18 (concluding that the appellant’s allegations that agency
personnel harassed him , subjected him to a hostile work environment , subjected
him to multiple investigations, accus ed him of “fabricating data” and of a Privacy
Act violation, refused his request for a review of his position for possible
upgrade, yelled at him, and failed to provide him the support and guidance needed
to success fully perform his duties amounted to a nonfrivolous allegation of a
significant change in his working conditions ); see also Covarrubias v. Social
Security Administration , 113 M.S. P.R. 583 , ¶¶ 8, 15 n.4 (2010) (finding that the
appellant made a nonfrivolous allegation of a significant change in working
conditions when she alleged, among other things, that her supervisors harassed
her about personal telephone calls and closely monito red her whereabouts, to
include following her to the bathroom), overruled on other grounds by Colbert v.
Department of Veterans Affairs , 121 M.S.P.R. 677 , ¶ 12 n.5 (2014) .
¶10 We also find that the appellant exhausted this personnel action with OSC.
Indeed , the appellant provided two letters from OSC evincing that he had filed a
6
complaint contending that the agency had both invest igated him and conducted
“inquiries on employees in order to solicit information not based on personal
knowledge .” IAF, Tab 1 at 7 -8, 38. We find that these contentions are
synonymous with the appellant’s allegations that the agency surveilled him and
monitored his time and attendance after falsely accusing him of being AWOL
and/or refusing to relocate his office space . See id. at 12-13, 16 , 34 -35.
Although retaliatory investigation s are not personnel action s in and of
themselves , Sistek , 955 F.3d at 955; Spivey v. Department of Justice , 2022 MSPB
24, ¶ 10 , such investigations may contribute towards “a significant change in
working conditions,” Sistek , 955 F.3d at 955 . Thus, we find that the appellant
raised the subject personnel action in his OSC complaint . IAF, Tab 1 at 7; see
5 U.S.C. § 2302(a)(2)(A)(xii). Moreover, on review, the appellant provides an
additional letter evincing that he also explicitly alleged before OSC that “the
[a]gency [had] changed [his] job duti es, [his] position description, and [his]
physical location within the [ agency] facility.” PFR File, Tab 6 at 33.4
¶11 We conclude that the appellant also has satisfied the remaining
jurisdictional criteri a. To this end, he made numerous allegations regarding
illegalities and improprieties regarding agency budgetary decisions, e.g., IAF,
Tab 1 at 11-12, and one of the letters that he provided to the administrative judge
evinc ed that he had alleged before OSC that the agency management had “wasted
thousands of dollars” on printed banners, id. at 7; see 5 U.S.C. § 2302 (b)(8) (i)-(ii)
(defining as a protected disclosure any disclosure of information by an appellant
that the appellant reasonably believes evidences either “any violation of any law,
4 Although the Board generally does not consider evidence submitted for the first time
on review absent a showing that it was unavailable before the close of the record
despite t he party’s due diligence, see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 ,
214 (1980 ), insofar as the issue of jurisdiction is always before the Board , we have
considered the subject letter, see Simnitt v. D epartment of Veterans Affairs ,
113 M.S.P.R. 313 , ¶¶ 5, 9 (2010) (remanding an appeal for adjudication when the
appellant provided new evidence on review that indicated , for the first time, that she
had filed a complaint with OSC) .
7
rule, o r regulation ” or “a gross waste of funds”); see also Horton v. Department
of Veterans Affairs , 106 M.S.P.R. 234 , ¶¶ 15, 17 (2007) (explaining that an
appellant need not prove that his disclosure s actually established a violation of
law, rule, or regulation or a gross waste of funds; rather , he must show that the
matter disclosed was one that a reasonable person in his position would believe
evidenced one of those conditions and conclud ing that the appellant made
allegations sufficient to warrant a hearing ). Moreover, insofar as the appellant
alleged a close temporal proximity between his purported disclosures and his
altered working conditions, we find that he has satisfied the contributing factor
jurisdictional criterion . E.g., IAF, Tab 1 at 11 -13; see Dorney v. Department of
the Army , 117 M.S.P.R. 480 , ¶ 14 (2012).
¶12 Accordingly, we find that the appellant made a nonfrivolous allegation that
his protected disclosure s contributed to a significant change in his duties and
working conditions and, therefore, he is entitled to h is requested hearing and a
decision on the merits of his appeal. IAF, Tab 1 at 2; see Salerno v. Department
of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). Prior to conducting a hearing, the
administrative judge shall afford the parties a reasonable opportun ity to complete
discovery and order the parties to submit any other evidence that he deems
necessary to adjudicate the merits of this appeal. Lewis v. Department of
Defense , 123 M.S.P.R. 255 , ¶ 14 (2016).
8
ORDER
¶13 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_20_0455_W_1_REMAND_ORDER_2054773.pdf | 2023-07-31 | null | DC-1221 | NP |
2,827 | https://www.mspb.gov/decisions/nonprecedential/MARCUM_WILLIAM_D_DE_0752_21_0188_I_1_FINAL_ORDER_2054847.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM D. MARCUM,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DE-0752 -21-0188 -I-1
DATE: July 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
William D. Marcum , Marana, Arizona, pro se.
Nathan Atkinson , Esquire, Kansas City, Kansas, 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 h is involuntary resignation appeal for lack of jurisdiction . On petition
for review, the appellant argues that he communicate d to the agency his desire to
withdraw his resignation , but the H uman Resource Manager led him to believe
that he could not do so ; he disputes the administrative judge’s findings 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
credibility determinations regarding that issue . He opines that the administrative
judge made several misstatements and errors in the initial decision. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evi dence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that 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 t he initial decision, which is now the Board’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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requ irements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. I f you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Boar d order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place , N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants ,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www. mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept repres entation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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 re presentative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimi nation based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a r epresentative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) oth er than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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, 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.
6
If you submit a petition for judicial review to the U. S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | MARCUM_WILLIAM_D_DE_0752_21_0188_I_1_FINAL_ORDER_2054847.pdf | 2023-07-31 | null | DE-0752 | NP |
2,828 | https://www.mspb.gov/decisions/nonprecedential/CHARLES_MARVIN_L_SF_0752_21_0391_I_1_FINAL_ORDER_2054914.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARVIN L. CHARLES,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
SF-0752 -21-0391 -I-1
DATE: July 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald P. Ackerman , Esquire, Los Angeles, California, for the appellant.
Kathryn Price , Esquire, and Justin Strong , Los Angeles A ir Force Base ,
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, whic h
dismissed his involuntary resignation appeal for lack of jurisdiction . On petition
for review, the appellant disagrees with the administrative judge’s finding that he
failed to nonfrivolously allege that his resignati on was involuntary and argues
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
that the administrative judge improperly substituted his opinion for that of a
reasonable person in the appellant’s position .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 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 Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
2 To the extent the administrative judge erred in considering the relative probative value
of the appellant’s allegations based on their proximity in time to his resignation, see
Trinkl v. Merit Systems Protection Board , 727 F. App’x 1007 , 1010 (Fed. Cir. 2018),
such an error was not prejudicial to the appellant, see Panter v. Department of the Air
Force , 22 M.S.P.R. 281 , 282 (1984). Considering the totality of the circumstances, we
agree with the administra tive judge that the appellant has failed to nonfrivolously allege
that the agency created working conditions so intolerable that a reasonable person in his
position would have felt compelled to resign. I nitial Appeal File, Tab 11, Initial
Decision at 10.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your 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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Feder al 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 attorn ey nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appea lable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U .S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsit es.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You m ust file any such request with the
EEOC’s Office of Federal Operations 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
addres s of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addr essed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described i n section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 or iginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perm anently allows appellants to file petitions for judicial review of
MSPB decisions in certain 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 F ederal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circu it 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/CourtWebsit es.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHARLES_MARVIN_L_SF_0752_21_0391_I_1_FINAL_ORDER_2054914.pdf | 2023-07-31 | null | SF-0752 | NP |
2,829 | https://www.mspb.gov/decisions/nonprecedential/DICUS_TAMRA_L_DC_0752_20_0792_C_2_FINAL_ORDER_2054928.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAMRA L. DICUS,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-0752 -20-0792 -C-2
DATE: July 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Avni Amin , Esquire, Washington, D.C., for the appellant.
Michael Gridley , Esquire, and Josh Hildreth , Esquire, Alexandria, 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
denied her petition for enforcement . On petition for review, the appellant claims
entitlement to a larger back pay award and attaches supporting evidence .2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 appe llant provides her Thrift Savings Plan (TSP) account summary, which
covered the period of July 1 to September 30, 2020, alleging that she submitted it below
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 la w to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of t he case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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).
with a missing page and that it shows that she made contributions to her TSP account
on July 1, 2020 , and July 28, 2020; thus, according to the appellant, her prior election
to contribute 11% of her pay to her TSP account should have been allowed to continue
for the period after she was removed. C ompliance Petition for Review File , Tab 1 at 11
& n.3, 13. 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).
However, i n light of the minor natu re of the appellant’s error, we have considered the
document and reviewed the record . In contrast to the appellant’s TSP account
summary, her final Statement of Earnings and Leave, which covered the period of
July 19 to August 1, 2020, shows that no TSP contributions were deducted from her
salary. Dicus v. Department of Commerce , MSPB Docket No. DC-0752 -20-0792 -C-2,
Compliance File (C -2 CF), Tab 5 at 20. Moreov er, the appellant’s last election, which
set her TSP contributions at 0%, became effective on July 19, 2020, prior to her
July 31, 2020 removal. C -2 CF, Tab 3 at 4. We agree with the administrative judge
that the appellant’s last election is controlling , the appellant is only entitled to re ceive
the agency’s automatic 1% contributions , and the National Finance Center processed
the agency’s request to reinstate those contributions. C-2 CF, Tab 6, Compliance Initial
Decision at 6 . We are not persuaded tha t the appellant’s evidence provides a basis to
disturb the initial decision.
3
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final dec ision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights des cribed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one app lies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Fe deral Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for P ro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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 re presentative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimi nation based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request 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
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice 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.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 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 information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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 | DICUS_TAMRA_L_DC_0752_20_0792_C_2_FINAL_ORDER_2054928.pdf | 2023-07-31 | null | DC-0752 | NP |
2,830 | https://www.mspb.gov/decisions/nonprecedential/ROSALES_MARISSA_SF_0752_21_0153_I_1_FINAL_ORDER_2054330.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARISSA ROSALES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -21-0153 -I-1
DATE: July 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert Lum , Brooklyn, New York, for the appellant.
Keith Reid , Esquire, Piscataway, New Jersey, for the appellant.
Brendan Le and Jeanine Telfer , Esquire, Long Beach, 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 removal. 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
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
findings of material fact; the initia l 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 consist ent with required procedures or
involved an abuse of discretion, and the resu lting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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 Bo ard’s final decision. 5 C.F.R. § 1201.113 (b).
DISSUSSION OF ARGUME NTS ON REVIEW
The agency has provided adequate evidence of its compliance with the interim
relief order.
¶2 In her initial decision, the administrative judge ordered the agency to
provide in terim 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, Tab 22, Initial Decision (ID)
at 21. 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 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) . 5 C.F.R.
§ 1201.116 (a). 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 not required to do so.
¶3 Here, the agency ’s petition for review was n ot accompanied by the
certification required under 5 C.F.R. § 1201.116 (a). Petition for Review (PFR)
3
File, Tab 1. The appellant subsequently filed a pleading, styled as a “Motion for
Enforcement,” in which she claimed that she had not received the interim relief
ordered in the initial decision .2 PFR File, Tab 3. The Office of the Clerk of the
Board then issued an order directing the agency to submit the required
certification of complian ce. PFR File, Tab 4. In response to that order, the
agency provided evidence that it had returne d the appellant to an equivalent
position with no loss in pay or grade , albeit at a different f acility closer to the
appellant’s residence , and that her back pay was currently being processed. PFR
File, Tab 5. Under these circumstances, we find that the agency has adequately
demonstrated its compliance with the interim relief order . Accordingly, rather
than dismiss the agency’s petition pursuant to 5 C.F.R. § 1201.116 (e), we instead
deny it on the merits, for the reasons discussed below.
The agency’s petition for review provides no basis for further review.
¶4 On review, the agency belatedly argues that the administrative judge erred
in merging the charges of Unacceptabl e Conduct and Misuse of Position. PFR
File, Tab 1 at 7 -9. However, the agency did not timely object to the merger and
thus waived its right to do so later. See Gulso v. Department of the Air Force ,
46 M.S.P.R. 478 , 480 n.1 (1990) (declining to address whether the administrative
judge properly distilled seven allegations into two charges, where neither party
objected to the ruling); Taylor v. Department of the Army , 44 M.S.P.R. 471 ,
473-74 (1990) (holding that the appellant could not challenge the administrative
judge’s dec ision to permit the agency to limit its charges to absence without
leave , where the appellant stipulated to narrowing the charges at the hearing and
did not object to or seek clarification o f the stipulation at the time).
2 To th e extent the appellant intended to request that the Board order the agency to
comply with the interim relief order, her request is denied, as there is no authority that
provides for filing suc h a request. See Dean v. Department of the Army , 57 M.S.P.R.
296, 300 (1993). If the appellant believes the agency is not in compliance wit h the
Board’s final order, she may file a petition for enforcement with the regional office that
issued the initial decision, in accordance with the instructions below. See infra , ¶ 10.
4
¶5 The agency further contends that t he administrative judge improperly
considered factors relevant to the reasonableness of the penalty —specifically,
whether the appellant’s conduct was intentional —in assessing the merits of the
charges. PFR File, Tab 1 at 9 -12. This argument is without merit, as it rests on a
misreading of the initial decision. The administrative judge instead found that it
was unnecessary to determine whether the appellant’s conduct was intentional ,
because the agency failed to prove its charg es by a preponderance of the evidence
with or without the req uirement of intent applicable to a charge of falsification.
ID at 14.
¶6 The agency’s remaining arguments amount to mere disagreement with the
administrative judge’s findings and credibility deter minations, and therefore do
not warrant further review. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 ,
106 (1997) (finding no reason to disturb the administrative judge’s findings when
she considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same).
ORDER
¶7 We ORDER the agency to cancel the removal and retroactively restore the
appellant effective September 11, 2020. 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 decisio n.
¶8 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,
5
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.
¶9 We further ORDER the agency to tell the appellant promptly in writ ing
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).
¶10 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 o n 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).
¶11 For agencies whose payroll is administered by either the National Finance
Center of the Department of Ag riculture (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 o r 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
YOU R RIGHT 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 the se requirements, you must file a motion for attorney fees
6
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 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 for um with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial rev iew in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 B oard may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at th e
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.g ov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and you r representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
8
race, color, relig ion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.as px.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must f ile any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and yo ur representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
9
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in sec tion 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 Fed eral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are inter ested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appe llants 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, 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
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 co mplete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Se ttlement 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 d ocumentation. 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 u nemployment 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 rev ersed, 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. | ROSALES_MARISSA_SF_0752_21_0153_I_1_FINAL_ORDER_2054330.pdf | 2023-07-28 | null | SF-0752 | NP |
2,831 | https://www.mspb.gov/decisions/nonprecedential/MILLER_MICHELLE_SF_0432_20_0165_I_2_FINAL_ORDER_2054409.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHELLE MILLER,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
SF-0432 -20-0165 -I-2
DATE: July 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle Miller , Seattle, Washington, pro se.
Molly Dennison , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairma n
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review , and the agency has filed a
cross petition for review of the initial decision, which affirmed the removal based
on unsatisfactory performance and concluded that the appellant did not prove any
of her affirmative defenses. Generally, we grant petitions suc h as these only in
the following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
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 o f the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the 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 cros s
petition for review. Therefore, we DENY the petition for review and the cross
petition for review . We MODIFY the initial decision to supplement the
administrative judge’s analysis regarding (1) whether the Office of Personnel
Management (OPM) approved the agency’s performance appraisal system and
(2) the third factor under Carr v. Social Security Administration , 185 F.3d 1318 ,
1323 (Fed. Cir. 1999), related to the appellant’s claim of reprisal for
whistleblowing disclosures and/or protected activity . Except as expressly
MODIFIED herein, we AFFIRM the initial decision.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 We discern no error with the administr ative judge’s conclusion that the
agency met its burden of proof regarding OPM’s approval of its performance
appraisal system based on the evidence that she described in the initial decision .
Miller v. Department of Commerce , MSPB Docket No. SF -0432 -20-0165-I-2,
Appeal File ( I-2 AF), Tab 45, Initial Decision (ID) at 10. However , we
supplement her analysis to note that OPM approved the Department of Commerce
Alternative Personnel System on August 14, 1996. I-2 AF, Tab 27 at 20. Such
evidence contradicts the appellant’s assertion on review that the agency “offered
3
no written evidence supporting OPM approval.”2 Petition for Review File, Tab 1
at 12 n.9.
¶3 Although not raised by either party on review, we modify the initial
decision to supplement the administrative judge’s analysis of Carr factor 3 —any
evidence that the agency takes similar actions against employees who are not
whistleblowers or who did not engage in protected activity but who are otherwise
similarly situated. Carr , 185 F.3d at 13 23; ID at 133. The administrative judge
considered this factor neutral because neither party presented any comparator
evidence. ID at 133.
¶4 The U.S. Court of Appeals for the Federal Circuit3 has held that, in the
absence of relevant comparator evidence, Carr factor 3 cannot favor the
Government. Smith v. General Services Administration , 930 F.3d 1359 , 1367
(Fed. Cir. 2019); Siler v. Environmenta l Protection Agency , 908 F.3d 1291 , 1299
(Fed. Cir. 2018). However, “ the agency need not prove every factor weighs in its
favor, [and] the abse nce of evidence related to Carr factor three is not fatal to the
agency .” Rickel v. Department of the Navy , 31 F.4th 1358 , 1366 (Fed. Cir. 2022).
Even if we weigh ed this Carr factor in the appellant’s favor, it does not outweigh
the administrative judge’s thorough assessment of the other two Carr factors. We
are ultimately left with a firm belief that the agency would have removed the
2 Because we affirm the administrative judge’s decision to sustain the removal based on
unsatisfactory performance in critical element (1), we need not address the parties’
arguments on review regarding critical element (3).
3 Historically, the Board has been bound by the precedent of the Federal Circuit on
issues of whistleblower reprisal . However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 , Pub. L. No. 112 -199, 126 Stat
1465 , extended for 3 years in the All Circuits Review Extension Act, Pub. L. No.
113-170, 128 Stat. 1 894, and eventually made permanent in the All Circuits Review
Act, Pub. L. No. 115 -195, 132 Stat. 1510 , we must consider this issue with the view
that the appellant may seek review of this decision before any appropriate court of
appeal. See 5 U.S.C. § 7703(b)(1)(B) . We are not aware that any circuit court of
appeals , other than the Federal Circuit, has issued case law regarding Carr factor 3 that
is different from the cases that we have cited herein.
4
appellant for un satisfactory performance in the absence of any whistleblowing
disclosures and/ or protected activity. We therefore agree with the administrative
judge that the appellant did not prove that the removal action was taken in
retaliation for her whistleblowing disclosures and/ or protected activity.
NOTICE OF APPEAL RIG HTS4
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 imm ediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of t he three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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 in cluded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
within 60 calendar day s of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
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 condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the lin k below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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 “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.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 Ap peals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 case s with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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.
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 | MILLER_MICHELLE_SF_0432_20_0165_I_2_FINAL_ORDER_2054409.pdf | 2023-07-28 | null | SF-0432 | NP |
2,832 | https://www.mspb.gov/decisions/nonprecedential/WAGNER_HEIDI_C_NY_0752_21_0126_I_1_FINAL_ORDER_2054487.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HEIDI C. WAGNER,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
NY-0752 -21-0126 -I-1
DATE: July 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Jill McCann , Springfield, 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
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous a pplication of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
administrative judge’s rulings during either the 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
provide further explana tion as to the basis for sustaining the appellant’s removal ,
we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was removed from her posi tion as a GS -8 Office Assistant
effective June 21, 2021, based on two charges of sustained misconduct , i.e. ,
failure to follow writ ten or oral instructions, supported by three specifications,
and conduct unbecoming a Drug Enforcement Admin istration (DEA) e mployee,
supported by two specifications. Initial Appeal File (IAF), Tab 7 at 10 -12.
Specifically, two of the specifications underlying the failure to follow oral or
written instructions charge concerned the appellant’s failure to ensure the
appropriate form with the required approvals was completed before advancing
agency funds to special agents. Id. at 37 -38. The third specification concerned
the appellant ’s failure to secure $300 of the agency’s funds , leaving the money in
an envelope outside of the secured cash utility box. Id. at 38 -40. Regarding the
second charge, i.e. , conduct unbecoming a DEA employee, the first specification
alleged that the appellant “consciously disrega rded ” agency requirements by
failing to make entries in the agency’s Dail y Imprest2 Fund Accountability Log
Book over the course of approximately 1 month. Id. at 40. T he second
2 An imprest is a cash account used to pay for small, routine business expenses.
3
specification alleged that she changed $50 bills of her own personal funds for the
$100 bills of the agency’s funds, thus commingling her personal funds with the
agency’s funds . Id. at 40 -43.
¶3 The appellant filed an appeal of her remova l with the Board . IAF, Tab 1.
After the appellant requested a decision on the written record, IAF, Tab 21, the
administrative judge issued an initial decision affi rming the appellant’s removal,
IAF, Tab 26, Initial Decision (ID). First, she noted that the appellant conceded
the misconduct , and the only two issues to be addressed were the appellant’s
arguments that the agency committed harmful error by considering a previous last
chance agreement (LCA) as an aggravating factor and that removal was
unreasonable in light of mitigating factors . ID at 2. The administrative judge
denied the appellant’s claim of harmful error , finding that she failed to prove that
the ag ency’s consideration of the LCA was an error or violated any rule . ID at 3 .
Next , she found that there was no basis for disturbing the agency’s chosen penalty
of removal because the record include d evidence that the deciding official had
considered the Douglas factors, including the appellant’s arguments regarding
mitigating factors . ID at 4. Accordingly, the administ rative judge affirmed the
appellant’s removal . ID at 5.
¶4 The appella nt filed a petition for review, arguing that the agency committed
harm ful error by considering the LCA as an aggravating factor and that removal
was outside of the bounds of reasonableness . Petition for Review (PFR) File,
Tab 3 at 6 -10. The agency responded in opposition to the petition for review.
PFR File, Tab 5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The appellant does not dispute the agency ’s charges, and thus, as the
administrative judge noted, she has conceded the misconduct . ID at 2.
Accordingly , because the agency has presented evi dence to support its charges ,
and the appellant has admitted to the alleged misconduct , we find that the agency
4
proved its c harges by preponderant evidence. Furthermore, because the
misconduct occurred while the appellant was on duty , nexus is established .
Campbell v. Department of th e Army , 123 M.S.P.R. 674, ¶ 24 (2016) (finding
nexus when the appellant’s charged misc onduct occurred at work). On review,
the appellant only disputes the administrative judge’s findings on harmful error
and mitigation, which we address in more detail below . PFR File, Tab 3 at 6 -10.
The agency did not commit harmful error by considering the appellant’s previous
last chance agr eement as an aggravating factor .
¶6 On April 10 , 2014, the appell ant signed a n LCA , which held her July 26,
2012 proposed removal in abeyance for a period of 36 months. IAF, Tab 7
at 65-68. By signing the LCA , the appellant admitted that there was sufficien t
evidence to sustain the charged misconduct , specifically, failure to honor just
debts ( four specifications) and failure to follow written instructions ( two
specifications) . Id. at 65-66. She also agreed that if she failed to abide by the
provisions of the LCA , or if she was disciplined within those 36 months for
failure to honor just debts , the agency would effectuate her removal . Id. at 67.
The appellant did not violate the terms of the LCA; however, o n March 16, 2021,
the appellant was issued the pr oposed removal at hand , which notified her that her
LCA was considered part of her “extensive past disciplinary recor d, which
demonstrates that [she was] on notice of the seriousness of the misconduct, and
that [she has] refused multiple opportunities for rehabilitation .” Id. at 43-44. On
review, the appellant contends , in essence , that the agency erred in considering
the LCA as an aggravating factor because the LCA “expired” 36 months after the
date of execution , and the agency could only use the LCA to effectuate the
July 26, 2012 proposed removal, and not as an aggravating factor in a later
disciplinary action . PFR File, Tab 3 at 6 -8.
¶7 We agree with the administrative judge that the appellant failed to establish
that the agency committed harmful error . ID at 3. Under 5 U.S.C.
§ 7701 (c)(2)(A), the Board cannot sustain an agency’s decision if the employee
5
“shows harmful error in the application of the agency’s procedures in arriving at
such dec ision.” Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681
(1991). Reversal of an action for harmful error is warranted where the procedural
error, whether regulatory or statutory, likely had a harmful effect upon the
outcome of the case before the agency. Id. In order to prove harmful error under
the statute and the Board’s regulations, an appellant must “prove that any
proced ural errors substantially prejudiced his rights by possibly affecting the
agency’s decision.” Id. (quoting Cornelius v. Nutt , 472 U.S. 648 , 661 (1985) ).
¶8 Although the appellant is co rrect that the LCA ended after 36 months , there
is nothin g in the agreement that required the agency to expunge the LCA or the
underlying proposal notice after the end of the 36 -month period . IAF, Tab 7
at 65-68. Similarly, there is no provision that prevents the agency from
considering the LCA as an aggravating factor in future disciplinary action
occurr ing after the 36 -month timeframe . Id. The appellant has not cited any
policy, rule, or regulation forbidding an agency from considering an LCA in its
penalty determination , and we are unaware of any authority that stands for such a
proposition . In fact , the Board has previously found that an agency may consider
an LCA as part of its penalty determination . See Jenkins v. Department of the
Treasury , 104 M.S.P.R. 345, ¶ 16 (2007) , aff’d , 244 F. App’x. 349 (Fed. Cir.
2007) (affirming the admi nistrative judge’s findings regarding the agency’s
penalty determination, including the agency’s consideration of the appellant’s
LCA ); Byers v. U.S. Postal Service , 78 M.S.P.R. 456, 463 -64 (1998) ( including a
previous LCA as part of the appellant’ s past disciplinary record). Thus, we agree
with the administrative judge that the appellant failed to establish her claim of
harmful error . ID at 3.
6
Removal was within the bounds of reasonableness.
¶9 On review, the appellant argue s that removal was unreasonable, citing
several mitigating factors, including the “unusual”3 stress caused by the
COVID -19 pandemic , the fact that she immediately took accountability for her
“lapses,” and her potential for rehabilitation. PFR File, Tab 3 at 8 -10. While we
agree with the administrative judge’s assessment that there is no basis for
mitigating the penalty , ID at 4, we f ind it necessary to provide additional
information to better explain the basis for this finding .
¶10 When, as here, the agency’s charge is sustained, the Board will review an
agency -imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discretion within the tolerable limits
of reasonableness. Powell v. U.S. Postal Service , 122 M.S. P.R. 60 , ¶ 12 (2014).
In making this determination, the Board must give due weight to the agency’s
primary discretion in exercising its managerial function of maintaining employee
discipline and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility, but to ensure that managerial judgment has been
properly exercised. Id. Thus, the Board will modify a penalty only when it finds
that the agency failed to weigh the relevant factors or that the penalty imposed
clearl y exceeds the bounds of reasonableness. Id.
¶11 There is no basis for mitigation in this case . It is well established that the
most important factor in assessing whether the agency’s chosen penalty is within
the tolerable bounds of reasonableness is the natu re and seriousness of the
3 The appellant asserts that she was under unusual stress during the COVID -19
pandemic because she was worried about the health of her d aughter and son -in-law who
are nurses and her elderly parents who live out of state, as well as her own health
because she had to report to the office. PFR File, Tab 3 at 8-9. While we sympathize
with the appellant’s concerns regarding the health and wel l-being of her family and
herself , we are not certain that these stressors can be charac terized as “unusual” given
that many individuals suffered similar worries during the pandemic . Moreover, the
appellant has not explained how the factors she identified contributed to her
misconduct , and they do not justify mitigation of the penalty.
7
misconduct and its relation to the employee’s duties, position, and
responsibilities. Downey v. Department of Veterans Affairs , 119 M.S.P.R. 302,
¶ 9 (2013); Edwards v. U.S. Postal Service , 116 M.S.P.R. 173, ¶ 14 (2010);
Gaines v. Department of the Air Force , 94 M.S.P.R. 527, ¶ 9 (2003). The
appellant acted as the Imprest Fund Cashier as part of her duties , and thus was
charged with handling and protecting public funds . IAF, Tab 7 at 43. Her
misconduc t is extremely serious , as it involves the mishandling of G overnment
funds and strikes at the very heart of her duties. See, e.g. , Brown v. Department
of the Army , 96 M.S.P.R. 232 , ¶ 11 (2004) (noting the seriousness of the
appellant’s offense when he was responsi ble for handling and managing
Government property, including G overnment funds, and the offense involved
misuse of Government funds).
¶12 Furthermore, the appellant has an extensive history of discipline for similar
misconduct, specifically, a 3 -day suspension in March 2006 for misuse of office
and failure to honor just debts, a 3 -day suspension in January 2007 for charges of
failure to honor just debts and failure to follow written instruct ions, a 3-day
suspension for misuse of government property (commingling) and failure to
follow written instructions in April 2010, and a proposed removal for failure to
honor just debts and failure to follow written instructions in July 2012, which was
held in abeyance by the LCA. IAF, Tab 7 at 43 -44. Thus , there is simply no
doubt that the appellant had ample notice of the agency’s rules, and several
opportunities to correct her behavior. See Jinks v. Department of Veterans
Affairs , 106 M.S.P.R. 627 , ¶ 25 (2007) (stating that prior discipline can be
considered as notice that the appellant had been warned about the type of
misconduct involved). In fact, the agency attempted to deter the appellant’s
behavior, practicing progressive discipline by issuing her three suspensions and
entering into a n LCA prior to resorting to a removal action. C ontrary to the
appellant’s assertions , PFR Fi le, Tab 3 at 9 -10, this evidence demonstrates that
she has little rehabilitative potential, as she continued to engage in misconduct
8
despite being given ample opportunities to correct her behavior , see Arenz v.
Department of the Army , 51 M.S.P.R. 88 , 99 (1991) (finding removal reasonable
when the appellant had shown a lack of rehabilitative potential after repeated
miscond uct for which he had been reprimanded), aff’d , 976 F.2d 746 (Fed. Cir.
1992) (Table) . IAF, Tab 7 at 25.
¶13 While significant, the mitigating factors, including the appellant’s 26 years
of Federal service, her excellent performance reviews, and the fact that she took
responsibility for her actions , do not outweigh the evidence supporting removal.
IAF, Tab 7 at 43 -44; PFR File, Tab 3 at 8 -10. Therefore, we agree with the
administrative judge ’s finding that there was no basis to warrant miti gation. ID
at 4.
NOTICE OF APPEAL RIG HTS4
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 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 appropriat e for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applica ble to your
claims and carefully follow all filing 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.
9
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of th is decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pro vided by any attorney nor warrants that
any attorney will accept representation in a given case.
(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 a ction that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action wi th an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsit es.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You m ust file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addres s 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 addr essed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described i n section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 Circu it or any other circuit court 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 F ederal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are int erested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board ap pellants before the 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
respecti ve 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 | WAGNER_HEIDI_C_NY_0752_21_0126_I_1_FINAL_ORDER_2054487.pdf | 2023-07-28 | null | NY-0752 | NP |
2,833 | https://www.mspb.gov/decisions/nonprecedential/ALEXIDOR_BETTY_AT_844E_22_0054_I_1_FINAL_ORDER_2054495.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BETTY ALEXIDOR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -22-0054 -I-1
DATE: July 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Betty Alexidor , Pembroke Pines, Florida, pro se.
Sheba Dunnings Banks , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management dismissing her
application for disability retirement as untimely filed and determining that the
appellant was not entitled to a waiver of the 1 -year time l imit for filing 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
application . On petition for review, the appellant makes no substantive
argument s challenging the administrative judge’s well -reasoned findings.
Petition for Review File, Tab 1 at 4 -6. Instead, she submits a Form W -4P entitled
Withholding Certificate for Periodic Pension or Annuity Payments, which is
totally unrelated to the untimely disability retirement application before the
Board. Id. Generally, w e 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 o f the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outc ome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we D ENY 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 RIG HTS2
You may obtain review of this f inal decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although 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 the ri ghts described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefull y follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gui de for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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 warra nts that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before y ou do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condit ion, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be fou nd at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by t he Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of F ederal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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 Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C ), or (D),” then you may file a 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 t he court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | ALEXIDOR_BETTY_AT_844E_22_0054_I_1_FINAL_ORDER_2054495.pdf | 2023-07-28 | null | AT-844E | NP |
2,834 | https://www.mspb.gov/decisions/nonprecedential/LAWSON_MARTIN_CH_1221_15_0644_W_1_FINAL_ORDER_2054516.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARTIN LAWSON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -15-0644 -W-1
DATE: July 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Martin Lawson , Baldwinsville, New York, pro se.
Gregory White , Esquire, Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition f or review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initi al decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 July 20, 2015, the agency terminated the appellant from his term
position after determining that , at the time of his appointment, he did not meet the
eligibility requirements for the position, rendering his appointment erroneous.
Initial Appeal File (IAF), Tab 1 at 7 -10. Thereafter, he filed the instant IRA
appeal, alleging that the agency terminat ed him in retaliation for his request to
discuss “perceived Prohibited Personnel Practices associ ated with agency
discrimination ” with human resources personnel and in violation of agency
policies . Id. at 5. In an August 31, 2015 order, the administrativ e judge informed
the appellant of his burden of proof to establish Board jurisdiction over his
appeal —namely, to show that he exhausted his administrative remedy with the
Office of Special Counsel (OSC) and to make nonfrivolous allegations that he
made a p rotected disclosure or engaged in protected activity that was a
contributing factor in his termination —and ordered him to respond within 10 days
of the order. IAF, Tab 3. The appellant did not respond within 10 days of the
jurisdictional order or at any time during the pendency of the appeal.
3
¶3 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that the appellant failed to show that he
exhausted his administrative remedy with OSC and failed to no nfrivolously allege
that he made a protected disclosure or engaged i n protected activity. IAF,
Tab 51, Initial Decision (ID). Accordingly, the administrative judge dismissed
the appeal for lack of jurisdiction.
¶4 The appellant has filed a petition for revi ew of the initial decision, the
agency has responded in opposition, and the appellant has submitted a reply to the
agency’s response. Petition for Review (PFR) File, Tabs 1, 3 -4.
ANALYSIS
¶5 The Board has jurisdiction over an IRA appeal based on whistleblowe r
reprisal under the Whistleblower Protection Enhancement Act of 2012 (WPEA) ,
if the appellant has exhausted his administrative remedies before OSC and makes
nonfrivolous allegations of the following : (1) he engaged in whistleblowing
activity by making a protected disclosure under 5 U.S.C. § 2302 (b)(8), or engaged
in prote cted 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 co ntributing factor in the
agency’ s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a). Yunus v. Depart ment of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed.
Cir. 2001); Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016) .
The administrative judge correctly determined that the appellant failed to show
that he exhausted his administrative remedies before OSC.
¶6 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). An appellant
raising an IRA claim can establish that he exhausted his remedies before OSC by
showing that he filed a request for corrective action there and either: (1) he
received written notification that OSC was terminating its investigation into his
4
complaints; or (2) 120 days have passed since he filed his request with OSC and
he has not received written notification from OSC informing him that it was
terminating its investigation into his complaints. 5 U.S.C. § 1214 (a)(3); Garrison
v. Department of Defense , 101 M.S.P.R. 229 , ¶ 6 (2006) . To satisfy the
exhaustion requirement, the appellant must inform OSC of the precise nature of
his pr otected disclosure or activity , giving OSC a sufficient basis to pursue an
investigation that might lead to corrective action. Carney v. Department of
Veterans Affairs , 121 M.S.P.R. 446 , ¶ 4 n.2 (2014) ; Mason , 116 M.S.P.R. 135 ,
¶ 8. An appellant may demonstrate exhaustion through his initial OSC complaint,
evidence that he amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations, and the appellant’s written responses to OSC referencing the
amended allegations. Mason , 116 M.S.P.R. 135 , ¶ 8.
¶7 Here, the appellant submitted evidence below showing that h e filed a
complaint with OSC on June 22, 2015, but failed to provide any information
regarding the nature of his communications with OSC. IAF, Tab 1 at 13, Tab 8
at 3, Tab 14 at 4. Therefore, the administrative judge found that the appellant
failed to sh ow that he exhausted his administrative remedy. ID at 3 -4. On
review, the appellant argues that the administrative judge previously found that
he had exhausted his administrative remedy with OSC in a telephonic status
conference summary and that he relie d on that finding in deciding to participate
in mediation with the ag ency. PFR File, Tab 1 at 2 -3.
¶8 In the telephonic status conference summary cited by the appellant, the
administrative judge found that more than 120 calendar days had passed since the
appellant filed his OSC complaint and that OSC had not yet informed him that it
was terminating its inquiry into his complaint or that it was seeking corrective
action on his behalf. IAF, Tab 12 at 1. Therefore, the administrative judge
concluded that, “[u]nder 5 U.S.C. § 1214 (a)(3), the appellant is [] considered to
have exhausted his administrative remedies with OSC, meaning he can prosecute
5
his [IRA] appeal with this Board. ” Id. Although the administrative judge found
that the appellant’s IRA appeal was properly before the Board under
section 1214(a)(3) , she did not find that the appellant had proven exhaustion of
the specific claims at issue in this appeal or that the Board had j urisdiction over
the appeal . Id. Indeed, in the same summary, she stated that, if the parties did
not agree to participate in mediation and case processing resumed, the appellant
“shall” submit a copy of his OSC complaint. Id. at 2-3.
¶9 Even if the admi nistrative judge’s summary was confusing and the appellant
took it to mean that he no longer needed to submit evidence regarding the
contents of his OSC complaint, he cannot show that his substantive rights were
prejudiced because the initial decision put him on notice of what he must do to
establish jurisdiction on review.2 ID at 4; see Easterling v. U.S. Postal Service ,
110 M. S.P.R. 41 , ¶ 11 (2008) (findi ng that an administrative judge’ s failure to
provide an appellant with proper jurisdictional notice can be cured if the initial
decision puts him on notice of what he must do to establish jurisdiction, thus
affording him the op portunity to meet his jurisdictional burden on review). On
review, the appellant has submitted a December 10, 2015 letter from OSC
indicating that it was closing its investigation into his complaint, in which he
alleged that the agency terminated his employment in reprisal for his
whistleblowing activity and in violation of agency guidelines. PFR Fil e, Tab 4
at 6. He also has submitted a copy of his Freedom of Information Act request to
OSC seeking a copy of his original OSC complaint and indicated that he will
submit the document to the Board as soon as he receives it. Id. at 4, 7 -10.
¶10 The OSC close -out letter does not show that the appellant advised OSC of
the specific alleged protected activity upon which he now bases this IRA appeal
and is, t herefore, insufficient to establish that he exhausted his administrative
2 In addition , the appellant failed to show how he was prejudiced by participating in an
ultima tely unsuccessful mediation with the agency. PFR File, Tab 1 at 5 -6.
6
remedies. See Mason , 116 M.S.P.R. 135 , ¶ 8. In addition, a lthough he submitted
evidence showing that he is in the process of obtaining a copy of his original OSC
complaint, we need not delay the matter further awaiting OSC’s response
because, as discussed below , the appellant has also failed to make a nonfrivolous
allegation that he engaged in protected activity or made a protected disclosure.
The administrative judg e correctly found that the appellant failed to
nonfrivolously allege that he made a protected disclosure or engaged in protected
activity.
¶11 As noted above, to establish Board jurisdiction in an IRA appeal, an
appellant must, after showing exhaustion, make n onfrivolous allegations that he
engaged in protected activity or made a protected disclosure that was a
contributing factor in the challenged personnel action. Salerno , 123 M.S.P.R.
230, ¶ 5. Here, the administrative judge found that, even if the appellant had
exhausted his claim that the agency terminated him in retaliation for contacting
human resources to discuss age discrimination before OSC , the Board would still
lack jurisdiction over his appeal. ID at 4. In so finding, the administrative judge
explained that reprisal for exercising an equal employment opportunity (EEO)
right or for filing an EEO complaint that does not pertain to remedying
whistleblower reprisal is not protected under the WPEA . ID at 4 -5. The
appellant does not challenge this finding on review, and we discern no basis to
disturb it. PFR File, Tabs 1, 4; see Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365 , ¶¶ 6 -7 (2013) (clarifying that the substance of a complaint ,
appeal, or grievance must concern re medying whistleblower reprisal to be
protected activity under section 2302(b)(9)(A)(i) ); see also Redschlag v.
Department of the Army , 89 M.S.P.R. 589 , ¶ 84 (2001) (finding that purported
disclosures that involve alleged discrimination or reprisal for engag ing in
activities protected by Title VII, even if made outside the grievance or EEO
processes, do not constitute protected whistl eblower activity under
7
section 2302(b)(8) because they pertain to matters of discrimination co vered by
section 2302(b)(1)(A)) , review dismissed , 32 F. App’x 543 (Fed. Cir. 2002) .
¶12 Accordingly, we affirm the initial decision.
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 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
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the 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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 ca nnot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you 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
9
race, color, religion, sex, national origin, or a disabling condition, 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 delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 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.uscour ts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circui t Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any othe r circuit court 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
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endo rses 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 Cler k of the Board | LAWSON_MARTIN_CH_1221_15_0644_W_1_FINAL_ORDER_2054516.pdf | 2023-07-28 | null | CH-1221 | NP |
2,835 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_ANNA_MARIA_DC_1221_21_0632_W_1_REMAND_ORDER_2054569.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANNA MARIA JOHNSON,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-1221 -21-0632 -W-1
DATE: July 28, 2023
THIS ORDER IS NONPRECEDENTIAL1
Rosemary Dettling , Esquire, Washington, D.C., for the appellant.
Jessica L. Linney , Esquire, and Terri Farr , Esquire, Fort Bragg, North
Carolina, 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,
VACATE the initial decision regarding the findings about the appellant’s first
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
disclosure , and REMAND the appeal to the Washington Regional O ffice for
further adjudication in accordance with this Remand Order. We AFFIRM the
administrative judge’ s findings that the Board lacks jurisdiction over the
appellant’s second and third disclosure s, albeit on slightly different grounds than
relied on by the administrative judge , as explained below.
BACKGROUND
¶2 The appellant, a former GS -11 Nurse (Patient Safety Manager) in the
agency’s Quality Services Division (QSD), was terminated during her
probationary period, effective December 16, 2019, for misconduct and poor
performance. Initial Appeal File (IAF), Tab 1 at 8 -10. She filed a complaint with
the Office of Special Counsel (OS C), alleging that she was terminated in
retaliation for making protected disclosures in violation of 5 U.S.C. § 2302 (b)(8) .
Id. at 13 -35. S pecifically , she alleged that she was terminated because she had
disclosed to her supervisor that a member of management threatened potential
whistleblowers and referred to whi stleblowing as a “career -killer ” (disclosure 1),
because she objected to QSD’s decision to report a Patient Safety Event (PSE) to
The Joint Commission “in direct defiance of the decisio n of Command
Leadership” (disclosure 2) , and because she objected to her supervisor’s decision
to restructure a Chartered Investigation Team (CIT) report to remove the
“Immediate Action Taken” section so that “the Department involved [would not ]
be given credit for their swift corrective action s” (disclosure 3) . Id. at 21 -29.
¶3 After OSC issue d its close out letter, the appellant filed an IRA appeal with
the Board, alleging whistleblower reprisal . IAF, Tab 1 . The administra tive judge
issued an order on jurisdiction , setting forth the applicable legal standard for
establishing jurisdiction and affording the appellant the opportunity to present
evidence and argument establishing jurisdiction over he r appeal . IAF, Tab 3.
The appellant responded, asserting that the three above -listed disclosures were
protected and she believe d that they evidenced a violation of the merit system
3
principles, as set forth in 5 U.S.C. § 2301 .2 IAF, Tab 5 at 4 -6. The appellant
further alleged that, as a result of her making these disclosures, the agency
terminated her from her position. Id. at 6.
¶4 Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lac k of jurisdiction. IAF, Tab 9, Initial
Decision (ID). Specifically, the administrative judge explained that a violation of
the merit system princi ples is not an independent violation of law, rule, or
regulation, and because it was the appellant’s sole argument for finding her
disclosures protected, she had not made a nonfrivolous allegation of Bo ard
jurisdiction. ID at 8-10.
¶5 The appellant filed a petition for review, arguing that administrat ive judge
erred in dismissing her appeal because she had made protected disclosures and
was subject to personnel actions thereafter . Petition for Review File, Tab 1 at 7.
The agency did not file a response to the petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 Under the Whistleblower Protection Enhancement Act of 2012, the Board
has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonf rivolous allegations that
(1) she made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D) ; and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302 (a). Edwards v. Department of Labor , 2022 MSPB 9 , ¶ 8;
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
A nonfrivolous allegation of a protected whistleblowing discl osure is
an allegation of facts that, if proven, would show that t he appellant disclosed a
2 The appellant submitted an amended jurisdictional response, IAF, Tab 5, which
appears identical to her original response, IAF, Tab 4.
4
matter that a reasonable person in her position would believe evidenced one of
the categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8)(A). Salerno ,
123 M.S.P.R. 230 , ¶ 6. The test to determine whether a whistleblower has a
reasonable belief in the disclosure is an objective one: whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the employee could reasonably conclude that the actions of the agency
evidenced one of the ca tegories of wrongdoing specified in 5 U.S.C.
§ 2302 (b)(8)(A). Id.
¶7 As explained by the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) , at the jurisdictional stage, the appellant need only assert “ allegations
that are ‘not vague, conclusory, or facially insufficient,’ and that the appellant
‘reasonab ly believe[s]’ to be true. . . .” Hessami v. Merit Systems Protection
Board , 979 F.3d 1362 , 1367 (Fed. Cir. 2020) (quoting Piccolo v. Merit Systems
Protection Board , 869 F.3d 1369 , 1371 (Fed. Cir. 2017)). Thus, the appellant
makes a nonfrivolous allegation if she alleg es “sufficient factual matter, accepted
as true, to state a claim that is plausible on its face.” Hessami , 979 F.3d at 1369.
¶8 As set forth below, we find that the appellant made a nonfrivolous
allegation that she made a protected disclosure when she disclosed that an agency
manager threatened whistleblowers (the first disclosure) and that this disclosure
was a contributing factor in her termination. However, we find that the appellant
failed to make a nonfrivolous allegation that her second and third disc losures, i.e.
objecting to the reporting of the PSE and the restructuring of the CIT report, were
protected because they were vague, conclusory, and at most constituted a policy
disagreement with agency managers. Nevertheless, because we find that the
appe llant nonfrivolously alleg ed Board jurisdiction over her first disclosure ,
we remand the appeal for the administrative judge to further address the first
disclosure .
5
The appellant nonfrivolously alleged that she made a protected disclosure when
she disclosed that an agency manager threatened whistleblowers and that this
disclosure was a contri buting factor in her termination.
¶9 In her first disclosure, the appellant alleged that she reported to her
supervisor that, during a morning huddle, a member of management stated, “[a]nd
if you are considering being a ‘whistleblower’ (telling people outside of the
department) what is occurring in QSD, it is a ‘career -killer.’ Remember what
happened to the last ‘whistleblower.’” IAF, Tab 5 at 5. The appellant asserted
that this statement violated the merit system principles, specifically 5 U.S.C.
§ 2301 (b)(9)(A), which states “[e]mployees should be protected against reprisal
for the lawful disclosure of information which the employees reasonably believe
evidences a violation of any law, rule, or reg ulation.” IAF, Tab 5 at 5 . In the
initial decision, the administrative judge found that the appellant failed to allege
that this statement violated a law, rule, or regulation, or any of the other
categories of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8)(A), because the
appellant had only cited to the merit system principles as the alleged law, rule, or
regulation violated. ID at 8 -9.
¶10 Accepting the allegations as true, as we must at this stage of the
proceedings, we find that the appellant has alleged sufficient facts to state a claim
that is plausible on its face. Specifically, the appellant alleged that she disclosed
to her supervisor that a member of management issued a threat to potential
whistleblowers, which would not only violate 5 U.S.C. § 2301 (b)(9)(A), as she
alleged, but would also constitute a prohibited personnel practice under 5 U.S.C.
§ 2302 (b)(8) and (b)(9). IAF, Tab 5 at 5. 5 U.S.C. § 2302 (b)(8) and (b)(9) make
it unlawful for an agency to, among other things, threaten to take a personnel
action against a whistleblower . Thus, a manager threatening the career of
whistleblowers would violate 5 U.S.C. § 2302 (b)(8) and (b)(9). Accordingly, we
find that the appellant reasonably believed that her disclosure evidenced a
violation of law, rule, or regulation, and thus, she nonfrivolously alleged that she
6
made a protected disclosure , even though she cited only to a violation of a merit
system princi ple. See McDonnell v. Department of Agriculture , 108 M.S.P.R.
443, ¶¶ 2, 10-13 (2008) (finding that the appellant made a nonfriv olous allegation
that she made a protected disclosure because her alleged disclosure concerned
hiring and selection improprieties under 5 U.S.C. § 2301 that could have
constituted prohibited person nel practice s under 5 U.S.C. § 2302 (b)(6) and
(b)(12)).
¶11 The appellant also nonfrivolously alleged that her protected disclosure was
a contributing factor in her termination. To satisfy the contrib uting factor
criterion at the jurisdictional stage of an IRA appeal, the appellant need only raise
a nonfrivolous allegation that the fact of, or the content of, the protected
disclosure was one factor that tended to affect the personnel action in any way.
Salerno , 123 M.S.P.R. 230, ¶ 13. One way to establish this criterion is the
knowledge/timing test, under which an employee may n onfrivolously allege that
the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id.
¶12 The Board has found that personnel actions taken within approximately 1 to
2 years of the protected disclosure satisfy the knowledge/timing test. Peterson v.
Department of Veterans Affairs , 116 M. S.P.R. 113 , ¶ 16 (2011). Here, the
appellant alleged that she informed her supervisor of the retaliatory statement on
May 22, 2019, and that he terminated her effective December 16, 2019,
approximately 7 months later. IAF, Tab 5 at 5 -6. Accordingly, because the
appellant satisfies the knowledge/timing test, she has nonfrivolously alleged that
her protected disclosure was a contributing factor in her termination . Thus, she is
entitled to a hearing on the merits of her first disclosure. See Salerno ,
123 M.S.P.R. 230, ¶ 5.
7
The appellant failed to nonfrivolously allege that she made a protected disclosure
when she object ed to the reporting of the PSE (second disclosure) and when she
objected to changes made to the CIT report (third disclosure).
¶13 We find that the appellant failed to nonfrivolously allege that either her
second or third disclosures were protected because her disclosu res were
conclusory, vague, and evidence nothing more than a policy disagreement with
agency managers . Specifically , regarding the second disclosure, the appellant
alleged that she objected to the fact that the QSD managers, inc luding her
supervisor, noti fied T he Joint Commission of a PSE that had been deeme d
non-reportable by the Command’s leadership, telling her supervisor, “I do not
agree with this. This is a lack of integrity. And it makes me uncomfortable
working with people this dishonest.” IAF, T ab 5 at 5. As an initial matter, the
appellant fails to explain h ow managers reporting a PSE to T he Joint Commission
would constitute the type of wrongdoing addressed by the whistleblower
protection statutes . In addition , we find that her disclosure was vague,
conclusory, and was nothing more than a general accusation of dishonesty against
agency managers that lacked sufficient details to be protected under 5 U.S.C.
§ 2302 (b)(8) (A). See Salerno , 123 M.S.P.R. 230, ¶ 6 (explaining that disclosures
must be specific and detailed, not vague allegations of wrongdoing); Rzucidlo v.
Department of the Army , 101 M.S.P.R. 616 , ¶ 13 (2006) (same).
¶14 For the same reason, we find that the appellant’s third disclosure is not
protected. Specifically , the appellant claims that she informed her supervisor t hat
she could not agree with his restructuring of the CIT Report, i.e. removing the
Immediate Action Taken section, because “it undermi nes the integrity of t he
report ,” as he removed the section so that “the Department involved would not be
given credit for their swift corrective actions.” IAF, Tab 5 at 6. Again, the
appellant fails to explain how the removal of this section constitute s the type of
wrongdoin g addressed by whistleblower protection statutes . Furthermore, the
appellant’s disclosure itself was vague, conclusory, and amounts t o a general
8
accusation that her supervisor lacked integrity . Therefore, it is not protected
under 5 U.S.C. § 2302 (b)(8) (A). See Salerno 123 M.S.P.R. 230 , ¶ 6; Rzucidlo ,
101 M.S.P.R. 616 , ¶ 13.
¶15 The appellant’ s second and third disclosures amount to nothing more than
general allegations of wrongd oing based on policy disagreements with agency
managers. These types of allegations are not protected under 5 U.S.C.
§ 2302 (b)(8)(A) . See Webb v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 8
(2015) (explaining that general philosophical or policy disagreements with
agency decisions or actions are not protected). As the Federal Circuit has noted,
whistleblower protected statutes “[are] not a we apon in arguments over policy or
a shield for insubordinate conduct.” Lachance v. White , 174 F.3d 1378 , 1381
(Fed. Cir. 1999). Accordingly, the appellant has failed to make a nonfrivolous
allegation that her second or th ird disclosures are protected. Therefore, we
remand this appeal only as it relates the findings of the first disclosure as
explained above.
ORDER
¶16 For the reasons discussed above, we remand this case to the Washington
Regional O ffice for further adjudication in accordance with this Remand Order.
On remand, the administrative judge should inform the appellant of her burden to
establish a prima facie case of whistleblower reprisal and should inform the
agency of its burden, should the appellant meet her burden of proof, to prove by
clear and convincing evidence that it would have taken the same personnel action
9
in the absence of the appellant’s protected disclosure. The administrative judge
should conduct the hearing requested by the appellant. IAF, Tab 1 at 2.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOHNSON_ANNA_MARIA_DC_1221_21_0632_W_1_REMAND_ORDER_2054569.pdf | 2023-07-28 | null | DC-1221 | NP |
2,836 | https://www.mspb.gov/decisions/nonprecedential/PROHASKA_DONALD_PH_0752_16_0205_I_1_FINAL_ORDER_2053910.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DONALD PROHASKA,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
PH-0752 -16-0205 -I-1
DATE: July 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bobby R. Devadoss , Esquire , and Megan Zeller , Esquire, Dallas, Texas, for
the appellant.
Daniel P. Kohlmeyer , Esquire , and Christian Lewerenz , Esquire, Jamaica,
New York, for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
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 . Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
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, d espite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully conside ring the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the adminis trative judge’s analysis of the lack of
candor charge, to analyze the appellant’s affirmative defense of age
discrimination under the correct causation standard, and to address the appellant’s
disparate penalties claim , we AFFIRM the initial decision .
¶2 On petition f or review, the appellant challenges the administrative judge’s
findings regarding the agency’s charges of misconduct, the affirmative defense s
of age discrimination and retaliation for filing a restraining order against his
coworker , the existenc e of nexus, and the reasonableness of the imposed penalty.
Petition for Review (PFR) File, Tab 3 at 8-19. Further, the appellant reasserts his
disparate penalties claim and disputes the administrative judge ’s denial of his
motion to strike the agency’s p leading. Id. at 16-17, 19 -20. In addition, he has
filed a motion for leave to file an additional pleading on review. PFR File,
Tab 7.2
2 We deny the appellant’s request to supplement his petition for review after the close
of the record with additional evidence because he has failed to show that it constitutes
material evidence. PFR File, Tab 7 at 6 -7; see, e.g. , Sabio v. Department of Veterans
Affairs , 124 M.S.P.R. 161 , ¶ 13 (2017); 5 C.F.R. § 1201.114 (k).
3
¶3 After considering the appellant’s challenges to the administrative judge’s
findings on the merits of the appeal, we di scern no reason to disturb his thorough
and well -reasoned findings regarding : the agency’s charges of providing
inaccurate information on Government documents having a direct connection to
the National Airspace System and of negligent work performance ; the affirmative
defense of retaliation ; the existence of nexus ; and the reasonableness of the
penalty . Initial Appeal File (IAF), Tab 45, Initial Decision (ID) at 4-26, 30 -36.
Moreover, we find that the administrative judge did not abuse his discretion in
denying the appellant’s motion to strike the agency’s pleading . ID at 3 -4; IAF,
Tab 44 ; see 5 C.F.R. § 1201.41 (b)(8) . The record supports the administrative
judge’s explanation that th e agency’s pleading was submitted in rebuttal to the
appellant’s closing submissions containing new evidence and argument that he
filed on the date the record was to close . ID at 3-4; IAF, Tab 17 at 1, Tabs 19 -43;
see, e.g. , Bucci v. Department of Educatio n, 42 M.S.P.R. 47 , 52 (1989); 5 C.F.R.
§ 1201.59 (c)(2) . However, for the reasons discussed below, we modify the initial
decision to supplement the administrative judge’s analysis of the lack of candor
charge, to analyze the appellant’s affirmative defense of age discrimination under
the correct causation standa rd, and to address his disparate penalties claim .
The appellant’s claims of discrimination based on disability, race, and sex have
been effectively waived or abandoned.
¶4 The appellant raised claims of discrimination based on disability, race, and
sex in his closing submission, but the administrative judge did not address those
claims in the initial decision. IAF, Tab 19 at 29. The appellant has not raised
this as an issue on review. In Thurman v. U.S. Postal Service , 2022 MSPB 21,
¶¶ 17-18, the Board articulated relevant factors we will consider to determin e
whether a previously raised affirmative defense has been effectively waived or
abandoned by the appellant. Here, the appellant has been represented by
attorneys throughout the appeal, he raised nonspecific claims of discrimination
based on disability, race, and sex without elaboration or reference to the record,
4
his only referenc e to such claims was in his closing submission, he has not
reasserted such claims on review, and there is no reason to believe that his
apparent ly abandon ing such claims resulted from confusion or misleading or
incorrect information. IAF, Tab 19 at 29. Thus, we find that the appellant’s
claims of discrimination based on disability, race, and sex have been effectively
waived or abandoned.
We modify the initial decision to supplement th e administrative judge’s analysis
of the lack of candor charge.
¶5 In disputing the administrative judge’s finding that the agency proved its
lack of candor charge, the appellant argues that the agency failed to show that he
had the requisite element of decep tion necessary to sustain the charge. PFR File,
Tab 3 at 12-13. To establish the “element of deception” necessarily involved in a
lack of candor charge, the agency must prove that the appellant knowingly gave
incorrect or incomplete information. Fargnol i v. Department of Commerce ,
123 M.S.P.R. 330 , ¶¶ 17-18 (2016) (holding that lack of candor requires proof of
the following eleme nts: (1) the employee gave incorrect or incomplete
information; and (2) he did so knowingly) . Here, although the administrative
judge did not make an explicit finding of deception, he made the credibility
determinations needed to resolve the disputed matter . ID at 26 -30.
¶6 In sustaining the lack of candor charge, the administrative judge found the
appellant’s explanation of events to be not credible when compared with the
agency’s evidence of a log summary report and the deciding official’s affidavit .
ID at 26-30; IAF, Tab 3, Subtab 4h at 1 , Tab 18 at 29-30. Further, the
administrative judge found that th e appellant did not provide credible evidence
that any of the agency’s systems were defective so as to inhibit the proper
recording of data. ID at 27. For the following reasons, w e find that the appellant
has failed to provide a reason to disturb the administrative judge ’s credibility
findings. PFR File, Tab 3 at 12 -13; see Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb the administrative
5
judge ’s credibility findings when she considered the e vidence as a whole, drew
appropriate inferences, and made reasoned conclusions) . In particular, we find
that the administrative judge properly considered the relevant factors in making
credibility determinations . ID at 26 -30; see Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987) (explaining the relevant factors an administrative
judge must consider in making credibility dete rminations) . Moreover, the
administrative judge properly considered the appellant ’s evidence of his affidavit
and the 2015 National Airspace System Technical Evaluation Program Bulletin.
ID at 10, 26 -28; IAF, Tab 19 at 34 -41, 130 . Based on our review of the record
and the administrative judge ’s credibility findings , we modify the initial decision
to find that the agency proved by preponderant evidence that the appellant
knowingly gave incorrect or incomplete information as described in
specifications 1-6 of the lack of candor charge . ID at 26 -30; IAF, Tab 3,
Subtab 4f at 5 -7, Subtab 4h at 1 , Tab 18 at 28-34.
We modify the initial decision to analyze the affirmative defense of age
discrimination under the correct causation standard .
¶7 The administrative judge analyzed the affirmative defense of age
discrimination under the erroneous causation standard set forth in Borowski v.
Department of Agriculture , 40 M.S.P.R. 372 , 374 (1989), requiring the appellant
to show that his age was the determining factor in the agency’s action . ID
at 33-34. Thus, we modify the initial decision as follows to analyze that claim
under the correct motivating factor standard set forth in Wingate v. U.S. Postal
Service , 118 M.S.P.R. 566 , ¶ 7 (2012) , and Savage v . Depart ment of the Army ,
122 M.S.P.R. 612 , ¶ 40 (2015) , overruled in part by Pridgen v. Office of
Management and Budget , 2022 MSPB 31 , ¶¶ 23-25.3
3 Although Savage involved allegations of race and sex discrimination and retaliation
for protected equal employment opportunity activity, the Board discussed analogous
provisions from the Age Discrimination i n Employment Act in concluding that
6
¶8 A Federal employee may prove age discrimination by establishing that age
was a factor in the challenged personnel action. Wingate , 118 M.S.P.R. 566 , ¶ 7.
In determining whether an appellant has met his initial burden to show a
motivating factor, the Board must consider all of the evidence together as a whole
without sorting evidence into different piles, labeled “direct ” or “indirect,” that
are evaluated differently. Sabio v. Department of Veterans Affairs , 124 M.S.P.R.
161, ¶ 36 (2017). For another employee to be deemed similarly situated for
purposes of an affirmative defense of discrimination based on disparate treatment,
all relevant aspects of the appellant’s employment situation must be “nearly
identical” to that of the comparator employee. Ly v. Department of the Treasury ,
118 M.S.P.R. 481 , ¶ 10 (2012). Thus, to be similarly situated, a comparator must
have reported to the same supervisor, been subjected to the same standards
governing discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Id.
¶9 Here, the appellant asserted before the administrative judge that he was
treated differently than younger employees for similar charges, and he submitted
evidence of comparator employees . IAF, Tab 19 at 30-31, 76 -84. The appellant
reasserts such argument on review. PFR File, Tab 3 at 18 -19. After considering
the appellant’s evidence as a whole, we find that he has failed to identify a valid
comparator for purposes of proving age discrimi nation based on disparate
treat ment. In particular, the a ppellant has failed to specify whether any of the
alleged comparators reported to the same supervisor and were subjected to the
same standards governing discipline. IAF, Tab 3, Subtab 4b at 5 (explaining that
the appellant is held to a higher standard of conduct as an employee holding a
safety -sensitive position). Therefore, we find that the appellant has failed to
42 U.S.C. § 2000e -16 is violated when discrimination or retaliation is a motivating
factor in the contested personnel action. Savage , 122 M.S.P.R. 61 2, ¶¶ 35 -41.
7
prove that his age was a motivating factor in the agency’s decision to remove
him.4
We modify the initial decision to address the appellant’s disparate penalties
claim .
¶10 The administrative judge did not address the appellant’s disparate penalties
claim in determining the reasonableness of the penalty. ID at 31-33; see Vargas
v. U.S. Postal Service , 83 M.S.P.R. 695 , ¶ 9 (1999) . Thus, we modify the initial
decision as follows to consider his disparate penalties claim.
¶11 The “consistency of the penalty with those imposed upon other employees
for the same or similar offenses” is only one of the factors for consideration in
determining the reasonableness of the penalty. Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 305 -06 (1981). Since the issuance of the initial
decision, the Board has issued Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 9, a
precedential decision reinstating our former law governing the analysis of
disparate penalties claims. As expla ined in Singh , the fact that two employees
come from different work units and/or supervisory chains remains an important
factor in determining whether it is appropriate to compare the penalties they are
given. Id., ¶ 13. In most cases, employees from ano ther work unit or supervisory
chain will not be proper comparators. Id. There must be a close connection
between the misconduct or some other factor for an employee from another work
unit or supervisory chain to be a proper comparator for disparate penal ty
purposes. Id.
¶12 Here, the appellant submitted before the administrative judge a chart
explaining the comparator evidence for purposes of a disparate penalties claim,
which he reasserts on review. PFR File, Tab 3 at 16 -17; IAF, Tab 19 at 25 -26,
4 Because we find that the appellant failed to prove motivating factor regarding this
claim, we need not resolve the issue of whether the appellant proved that discrimination
was a “but -for” cause of the removal action. See Pridgen , 2022 MSPB 31 , ¶¶ 20-22,
29-33.
8
26 n.1, 136-43. After considering the appellant’s chart , we find that he has failed
to allege a valid comparator because none of the proffered employees allegedly
engaged in “the same or similar offenses,” i.e., an employee holding a
safety -sensitive position who provided inaccurate information on Government
documents and engaged in negligent work performance and lack of candor .
Douglas , 5 M.S.P.R. at 305; IAF, Tab 3, Subtab 4b at 1-5; see Singh , 2022 MSPB
15, ¶ 17 (observing that the Board should not attempt to weigh the relative
seriousness of various offenses to determine whether two employees who
committed different acts of misconduct we re treated disparately). Therefore, we
find that the appellant has failed to establish that the agenc y imposed disparate
penalties.
¶13 Accordingly, we affirm the agency’s rem oval action.
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 Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
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 fil ing time limits and requirements. Failure to file
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of rev iew rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
within the applicable time limit may result in the dismissal of 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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.
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 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 you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.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:
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 is suance 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 o f appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PROHASKA_DONALD_PH_0752_16_0205_I_1_FINAL_ORDER_2053910.pdf | 2023-07-27 | null | PH-0752 | NP |
2,837 | https://www.mspb.gov/decisions/nonprecedential/DRUMMER_TYIESHA_SF_315H_18_0531_I_1_FINAL_ORDER_2053939.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TYIESHA DRUMMER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-315H -18-0531 -I-1
DATE: July 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tyiesha Drummer , Tacoma, Washington, pro se.
Melissa A. Dunkley , Esquire, and Stephen Geringer , Esquire, Joint Base
Lewis -McChord, 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
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for revie w, the appellant submits additional evidence to support her claim
that she was termin ated in retaliation for disclosing a violation of law. Generally,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 in terpretation 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 involv ed an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that 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 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 cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a p etition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, o n unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you 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:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial 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.3 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).
3 The original statutory provision that provided for judicial review of certain
whistleblo wer claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following 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.
Contact information for the courts of appeals can be 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 | DRUMMER_TYIESHA_SF_315H_18_0531_I_1_FINAL_ORDER_2053939.pdf | 2023-07-27 | null | SF-315H | NP |
2,838 | https://www.mspb.gov/decisions/nonprecedential/CHERRY_CELESTE_CH_315H_18_0300_I_1_FINAL_ORDER_2053945.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CELESTE CHERRY,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
CH-315H -18-0300 -I-1
DATE: July 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Celeste Cherry , Kansas City, Missouri, pro se.
Bridgette M. Gibson , Esquire, Dallas, Texas, 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 decis ion, which
dismissed her probationary termination appeal for lack of jurisdiction . On
petition for review, the appellant reargues the merits of the agency’s decision to
terminate her . She argues for the first time on review that the agency engaged in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
a prohibited personnel practice when it t erminated her, and that the termination
decision was based on “improper procedure” or partisan political reasons.
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, wa s not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we concl ude that 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 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
jurisdictio n. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indica ted in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismiss al of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to revie w your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federa l Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court o f Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appea ls for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial revie w of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representativ e in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination base d on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_L ocator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representati ve in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S . mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signatur e, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel 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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U .S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Cou rt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6 , 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Mer it Systems Protection Board appellants before the 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 | CHERRY_CELESTE_CH_315H_18_0300_I_1_FINAL_ORDER_2053945.pdf | 2023-07-27 | null | CH-315H | NP |
2,839 | https://www.mspb.gov/decisions/nonprecedential/WALKER_KIMBERLY_CH_0752_20_0262_I_1_FINAL_ORDER_2054024.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KIMBERLY WALKER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER S
CH-0752 -20-0262 -I-1
CH-0752 -20-0402 -I-1
DATE: July 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert Lum , Brooklyn, New York, for the appellant.
Glenn L. Smith , Grand Rapids, Michigan, for the appellant.
Deborah W. Carlson , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed two petition s for review of two initial decisions,
both cases addressing demotion actions. First, the appellant has filed a petition
for review in Walker v. U.S. Postal Service , MSPB Docket No. CH -0752 -20-
0262 -I-1 (Walker 1), challenging the initial decision which, in part, found that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
agency did not have to return the appellant to her former position or an equivalent
managerial position after it rescinded its first demotion action . The appellant has
also filed a petition for review in Walker v. U.S. Post al Service , MSPB Docket
No. CH -0752 -20-0402 -I-1 (Walker 2), challenging the initial decision which
sustained the agency’s reissued demotion action. For the reasons discussed
below, we GRANT the appellant’s petition for review in Walker 2, REVERSE the
Walk er 2 initial dec ision , and order the agency to cancel the second demotion
action. We DENY the appellant’s petition for review of Walker 1 because the
appeal is MOOT . We RE -JOIN the two appeals for adjudication.2
BACKGROUND
¶2 The appellant held the EAS -22 p osition of Customer Service Manager at
Graceland Station in Chicago, Illinois. Walker v. U.S. Postal Service , MSPB
Docket No. CH -0752 -20-0402 -I-1, Initial Appeal File (0402 IAF), Tab 6 at 39.
On February 14, 2020, the agency issued a decision demoting th e appellant ,
effective February 29, 2020, to an EAS -17 Supervisor of Distribution Operations
position based on a charge of negligent performance of duties. Walker v. U.S.
Postal Service , MSPB Docket No. CH -0752 -20-0262 -I-1, Initial Appeal File
(0262 IAF), Tab 1 at 12 -17. The appellant then filed a Board appeal, which will
be referred to as Walker 1, challenging the demotion. 0262 IAF, Tab 1. While
Walker 1 was pending before the administrative judge, the agency issue d an
April 9, 2020 letter rescinding the demotion action. 0262 IAF, Tab 20 at 11. In
that letter, the agency stated that it was not rescinding the proposed demotion,
and that it would issue another decision at a later date. Id. However, the parties
continued to argue in Walker 1 regarding whether the agency had fully rescinded
2 Although the appeals were joined while they were pending in front of the
administrative judge, the administrative judge issued separate initial decisions, which
necessitated that the appeals were s evered. Because joining the appeals will promote
judicial efficiency and expedite the processing of the cases, and will not adversely
affect the interests of the parties, we hereby re -join the appeals for adjudication.
5 C.F.R. § 1201.36 .
3
the demotion by returning the appellant to the status quo ante. 0262 IAF,
Tabs 20-21, 26 -27, 29 -30.
¶3 While Walker 1 was still pending in front of the administrative judge, the
agency issued a second decision on May 21, 2020 , demoting the appellant to a n
EAS -17 position. 0402 IAF, Tab 4 at 32-36, 45 -49; Hearing Recording (HR)
(testimony of the appellant). The record contains two decision letters for the
reissued demotion, both with an issuance date of May 21, 2020, but the first letter
was signed by the deciding official on May 6, 2020 (First Decision Letter), and
the second letter was signed by the deciding official on May 21, 2020 (Second
Decision Letter). 0402 IAF, Tab 4 at 32 -36, 45 -49. Both decision letters were
sent to the appellant. HR (parties’ discussion prior to closing arguments).
Subsequently, the appellant filed a Board appeal, which will be referred to as
Walker 2, challenging the agency’s reissued demotion action. 0402 IAF, Tab 1.
The administrative judge joined Walker 1 and Walker 2 and proceeded to
adjudicate the cases together. 0402 IAF, Tab 10. However, as noted, she issued
two separate initi al decisions.
¶4 In Walker 1, the administrative judge found that the agency had not fully
rescinded the February 14, 2020 decision and ordered that the agency take
additional actions in order to fully rescind the demotion, includ ing paying the
appellant additional monies and removing the Postal Service form 50 (PS-50)
memorializing the demotion from the appellant’s personnel file . 0262 IAF,
Tab 52, Initial Decision (0262 ID) at 8 -9. She also found that , while the agency
did not return the appellant to her former EAS -22 position or an equivalent
position, it was not required to do so because it had presented a compelling or
overriding interest. 0262 ID at 5 -6. The appellant has filed a petition for review
in Walker 1 challenging the administrative judge’s finding that the agency was
not required to return her to her former EAS -22 position or an equivalent
position. Walker v. U.S. Postal Service , MS PB Docket No. CH -0752 -20-0262 -
I-1, Petition for Review (0262 PFR) File, Tab 3 at 5. The agency has responded
4
in opposition to the appellant’s petition for review in Walker 1. 0262 PFR File,
Tab 5.
¶5 In Walker 2, the administrative judge sustained the reissued demotion on
the merits and found that the appellant did not establish a violation of her due
process rights. 0402 IAF, Tab 58, Initial Decision (0402 ID). On review in
Walker 2, the appellant argues: (1) the administrative judge erred in not finding
that the agency was prohibited from proceeding with the reissued demotion before
fully rescinding the first demotion action; (2) the administrative judge erred in
finding that the First Decision Letter was the agency decision letter, and that the
agency violated the appellant’s due process rights because the decision letters cite
to aggravating factors not cont ained within the proposal notice ; and (3) the
penalty exceeded the bounds of reasonableness. Walker v. U.S. Postal Service ,
MSPB Docket No. CH -0752 -20-0402 -I-1, Petition for Review (0402 PFR) File,
Tab 3. The agency did not respond to the petition for review in Walker 2.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 As discussed below, w e first find that the agency’s reissued demotion action
in Walker 2 cannot stand in light of the agency’s harmful error of issuing two
different written decisions with conflicting information, both signed by the
deciding official and provided to the appellant as the agency decision, and it is
impossible to discern which letter was intended as the agency decision.
Regarding Walker 1, we deny the appellant’s petition for review as moot because
there is no further relief that can be granted to the appellant.
The issuance of two decision letters constitutes a violation of 5 U.S.C. § 7513 .
¶7 When an agency takes an adverse action against an employee pursuant to
chapter 75, the employee against whom the a ction is proposed is entitled to,
among other things, “ a written decision and the specific reasons ” for the decision .
5 U.S.C. § 7513 (b)(4). Here, there are two signed written decisions in the record.
0402 IAF, Tab 4 at 32 -36, 45 -49. During the proceedings below in Walker 2, the
5
agency claimed that the agency’s decision was the First Decision Letter, signed
on May 6, 2020, and that the Second Decision Letter, signed on May 21, 2020,
was a draft that was mistakenly included in the agency file. HR (parties’
discussion prior to closing arguments); 0402 IAF, Tab 54 at 4 -5. The
administrative judge, in the initial decision, accepted the agency’s explanation,
and found that this First Decision Letter was the agency’s decision, noting that
the appellant had attached a copy of the First Decision Letter to her initial appeal .
0402 ID at 3 n.3. The appellant, on review, asserts that the administrative judge’s
finding was incorrect, arguing instead that the Second Decision Letter was the
agency’s decision, and had been issued by the agency “to correct the due process
violatio ns in the first letter.” 0402 PFR File, Tab 1 at 9. As explained below,
because the record contains conflicting evidence, we cannot discern what
document is the agency decision required by 5 U.S. C. § 7513 (b), and therefore
conclude that the agency effectively failed to issue a final written decision in
violation of 5 U.S.C. § 7513 (b).
¶8 Looking first at the letters themselves, we find no definitive evidence that
identifies which letter is the actual agency decision. The two decision letters
have the same issuance date, i.e. , May 21, 2020, and both letters were signed by
the deciding offi cial—the First Decision Letter signed on May 6, 2020, and the
Second Decision Letter signed on May 21, 2020.3 0402 IAF, Tab 4 at 32, 36, 45,
48. The agency sent both letters to the appellant , and the appellant received both
letters. Id. at 43 -44, 49; 04 02 IAF, Tab 1 at 10 -14; HR (parties’ discussion prior
to closing arguments). The First Decision Letter states that the appellant will be
demoted to the position of EAS -17 Supervisor of Customer Services, effective
May 23, 2020. 0402 IAF, Tab 4 at 34. Th e Second Decision Letter states that the
appellant will be demoted to the position of EAS -17 Supervisor of Distribution
3 Although the signature date on th e First Decision Letter is blurry, the deciding official
in her testimony confirmed that it appeared she signed the letter on May 6, 2020.
HR (testimony of the deciding official).
6
Operations , effective February 15, 2020.4 Id. at 47. Additionally, as we discuss
in more detail below, the First Decision Letter and t he Second Decision Letter
contain differing narratives. Id. at 32 -36, 45 -49.
¶9 The testimony of the witnesses at the hearing is not any clearer than the
written record. During the deciding official’s testimony, the appellant’s attorney
first referred her to the Second Decision Letter, which the deciding official
reviewed, and proceeded to testify as if the Second Decision Letter was the
agency’s decision. HR (testimony of the deciding official). In fact, the deciding
official testified that everything s he considered was contained in the Second
Decision Letter, thus demonstrating that she believed the Second Decision Letter
was the agency’s decision. Id. It was only when the appellant’s attorney directed
her to the First Decision Letter and proceeded to ask questions about that
document that it dawned on the deciding official and the agency attorney that
there was an issue. Id. Then, the deciding official could not clearly identify
which decision letter was the actual decision until after conferring wi th the
agency’s attorney, at which point she claimed that the First Decision Letter
constituted the agency’s decision. Id. The appellant, during her testimony, also
indicated that she was confused as to which letter constituted the agency’s
decision . HR (testimony of the appellant).
¶10 In an effort to explain the two decision letters, the agency asserts that the
Second Dec ision Letter was merely a draft and that the First Decision letter is the
4 We acknowledge that the effective date set forth in the Second Decision Letter
predates t he date of the letter by over 3 months. As discussed below, this further adds
to the confusion regarding the agency’s decision. As set forth previously, the decision
in Walker 1 was issued on February 14, 2020, and that action was effective
February 29, 2020. 0262 IAF, Tab 1 at 14. Thus, it does not appear that the Second
Decision Letter was somehow confused with the agency dec ision in Walker 1.
7
agency’s decision regard ing the appellant’s demotion.5 There are several pieces
of evidence that undermine this assertion.
¶11 First, the Second Decision Letter was signed by the deciding official nearly
two weeks after the First Decision Letter, and was sent to the appellant via
priority mail. 0402 IAF, Tab 4 at 48-49. In addition, the deciding official
initially testified about the Second Decision Letter as if it was the agency
decision, and only claimed it was a draft after conferring with the agency’s
attorney. HR (testimony of the deciding official). Furthe rmore, the First
Decision Letter and the Second Decision Letter contain statements that conflict
with each other and with the personnel action the agency actually took. The First
Decision Letter, i.e. , the effective decision according to the agency, state s that
appellant would be demoted to the position of EAS -17 Supervisor of Customer
Services effective May 23, 2020. 0402 IAF, Tab 4 at 34. However, the appellant
was never placed in that position. HR (testimony of the appellant, testimony of
the decidin g official). Meanwhile, the Second Decision Letter states that the
appellant would be demoted to the position of EAS -17 Supervisor of Distribution
Operations effective February 15, 2020, which was 3 months prior to the issuance
of the decision. 0402 IAF, Tab 4 at 47. In actuality, the agency demoted the
appellant to the position of Supervisor of Distribution Operations, as stated in the
Second Decision Letter, but there is no indication that her demotion was
retroactive.6 HR (testimony of the appellant, testimony of the deciding official).
¶12 Finally, despite the agency’s assertion that the First Decision Letter was the
agency decision, in Walker 1, when the agency attorney responded to the
administrative judge’s order regarding the rescission of the Febr uary 14, 2020
demotion decision , she relayed to the administrative judge that the agency had
reissued the demotion, and attached a copy of the Second Decision Letter, despite
5 The agency has offered no explanation as to how the errors set forth in this appeal
occurred.
6 A copy of the PS -50 reflecting the reissued demotion is not in the record.
8
the fact that she asserted in Walker 2 that the First Decision Letter was the agency
decision. 0262 IAF, Tab 20 at 6, 16 -20; 0402 IAF, Tab 54 at 4 -5; HR (parties’
discussion prior to closing arguments, agency’s closing argument, testimony of
the deciding official).
¶13 Thus, contrary to the administrative judge’s holding, we do not find the
agency’s claim that the Second Decision Letter was a mere draft to be persuasive
in light of the evidence undermining such an assertion. 0402 ID at 3 n.3. In sum,
we cannot discern whether the First Decision Letter or the Second Decision Letter
is the agency’s controlling decision, and it does not appear the parties can discern
this fact either. Therefore, in effect, by issuing two decisions with differing
information, the agency failed to issue a written decision regarding the
appellant’s demotion. We conclude that the agency’s failure constitutes a
violation of 5 U.S.C. § 7513 (b).
The agency’s issuance of two decision s constitutes harmful error and therefore
the demotion must be reversed.
¶14 Having determined that the agency violated 5 U.S.C. § 7513 (b), we must
now consider whether the appellant was harmed by the agency’s error. As
discussed below, we find that she was harmed.
¶15 Under 5 U.S.C. § 7701 (c)(2)(A), the Board cannot sustain an agency’s
decision if the employee “shows harmful error in the application of the agency’s
procedures in arriving at such decision.” Stephen v. Department of the Air Force ,
47 M.S.P.R. 672 , 681 (1991). The Board has concluded that the “harmful error”
standar d is applicable to our review of an agency’s failure to comply with a
statutory procedure under 5 U.S.C. § 7513 .7 Baracco v. Department of
Transportation 15 M.S.P.R. 112 , 119 (1983); see Robinson v. Department of the
7 The appellant received notice of the charges, the materials relied upon, and an
opportunity to respond. 0402 IAF, Tab 4 at 71 -75. Thus, the circumstances of this
appeal do not implicate the requirements for constitutional due process . Cleveland
Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985).
9
Treasury , 96 M.S.P.R. 600 , ¶¶ 9-13 (2004), aff’d , 135 F. App’x 423 (Fed. Cir.
2005) (applying the harmful error analysis to the agency’s failure to comply with
5 U.S.C. § 7513 (b)); Rawls v. U.S. Postal Service , 94 M.S.P.R. 614 , ¶¶ 22-24
(2003) (same) , aff’d , 129 F. App’x 628 (Fed. Cir 2005) ; Williams v. U.S. Postal
Service , 68 M.S.P.R. 150 , 153 -54 (1995) (same). To prove harmful error, an
appellant must “prove that any procedural errors substantiall y prejudiced his
rights by possibly affecting ” the outcome . Stephen , 47 M.S.P.R. at 681 (quoting
Cornelius v. Nutt , 472 U.S. 648 , 661 (1985) ).
¶16 Therefore, the overarching question of a harmful error analysis is whether a
procedural violation by the agency caused actual harm to the appellant and
prejudiced her in some manner. See Stephen , 47 M.S.P.R. 672 , 682 -83; see also
Torres v. U.S. Postal Service , 35 M.S.P.R. 655, 660 (1987) (“In considering the
effects of agency procedur al errors under 5 U.S.C. § 7513 , the Board focuses on
whether the employee’s ability to defend against the adverse action was impaired
by the error, or whether the error otherwise had a likely effe ct on the agency’s
action so as to constitute harmful error under 5 U.S.C. § 7701 (c)(2)(A).”). Or,
whether the agency’s error, “casts sufficient doubt on the reliability of the
agency’s factfindin g or decision.” Smith v. U.S. Postal Service , 789 F.2d 1540 ,
1545 (Fed. Cir. 1986) (citing Cornelius , 472 U.S. at 663). Nothing in the Board’s
harmful error analysis limits the question as to whether the harm occurred before
the agency or the Board.
¶17 In this case, the outcome in both agency decision letters is the same —the
appellant was demoted in both letters —but there is a question regarding whether
the appellant was harmed in her ability to appeal the agency action because of the
two decision letters. As explained above, the two agency decisions include
different effective dates, demote the appellant to dif ferent positions, and were
signed on different dates. 0402 IAF, Tab 4 at 32-36, 45 -49. However, the
decisions also differ in the narrative explaining why the deciding official
sustained the demotion. For instance, the First Decision Letter states that the
10
deciding official c onsidered the fact that the appellant was aware of the intense
scrutiny the station was under by a member of Congress, the Postmaster General,
and the local media regarding service issues and specifically the problem of
delayed mail. Id. at 33. The Secon d Decision Letter, on the other hand, has no
reference to this scrutiny. Id. at 45 -49. The First Decision Letter also include s a
more detailed summary of the appellant’s arguments in her written responses,
including a specific reference to her April 20, 2020 supplemental written
response. Id. at 32 -33. The Second Decision Letter, on the other hand, contains a
single generic statement summarizing the appellant’s reply, and does not contain
any reference to the appellant’s April 20, 2020 supplemental writ ten response.
Id. at 45. Thus, the two decisions contain different information about not only
the practical aspects of the demotion, but what exactly the deciding official
reviewed and considered in coming to her decision.
¶18 These differences are not tri vial. There are substantive differences as to
what the deciding official considered and reviewed in coming to her conclusion.
0402 IAF, Tab 4 at 32 -36, 45 -49. Thus, we do not see how the appellant can
litigate her case before the Board when she cannot b e sure of which decision she
is being held to. Further, the Board cannot carry out its statutory dut y to review
the agency’s decision when we cannot discern what decision to review. Thus, we
find that the appellant suffered actual harm as a result of the agency’s error
because it de facto foreclosed her from seeking the Board’s review of the
agency’s decision . We also find that the issuance of two differing written
decisions casts “sufficient doubt” on the reliability of the agency’s decision,
because it is impossible to determine which information contained in the
decisions is the correct information. Thus, based upon the unique facts of this
case, we find that the agency committed harmful error and reversal of the
demotion action is warranted. Accordi ngly, the agency must restore the appellant
to her EAS -22 Station Manager position. Hess v. U.S. Postal Service ,
123 M.S.P.R. 183 , ¶ 5 (2016) .
11
The Walker 1 appeal is moot.
¶19 Although an action may be within the Board’s jurisdiction, subsequent
events may render an appeal moot an d foreclose the Board’s review. Rodriguez v.
Department of Homeland Security , 112 M.S.P.R. 446 , ¶ 12 (2009). A case is
moot when the issues presented are no longer “live” or the parties lack a legally
cognizable intere st in the outcom e of the case. Hess v. U.S. Postal Service ,
124 M.S.P.R. 40 , ¶ 8 (2016) . Mootness can arise at any stage of litigation , and a n
appea l will be dismissed as moot if, by virtue of an intervening event, the Board
cannot grant any effectual relief in favor of the appellant. As discussed below,
because we cannot grant any effectual relief to the appellant on the issue
presented on review in Walker 1, the appeal is moot and accordingly we deny the
petition for review.
¶20 As discussed above, the agency issued a decision on February 14, 2020 ,
demoting the appellant effective February 29, 2020. 0262 IAF, Tab 4 at 32 -34.
On April 9, 2020, the agency notified the appellant that it was rescinding the
February 14, 2020 decision letter. 0262 IAF, Tab 20 at 11. On May 21, 2020, the
agency reissue d the decision letter demoting the appellant, which went into effect
on May 23, 2020.8 0402 IAF, Tab 4 at 32 -36, 45 -49.
¶21 In Walker 1, the administrative judge ordered the agency to fully rescind the
February 2020 demotion action, ordering the agency to tak e specific additional
actions to make the appellant whole, i.e. , ordering the agency to rescind the PS -50
memorializing the demotion, and pay the appellant additional monies owed.9
8 The record does not have a copy of the PS -50 memorializing the reissued demotion.
However, the agency, in its prehearing submissions, has asserted t hat the reissued
demotion went into effect on May 23, 2020. 0402 IAF, Tab 21 at 12. The appellant
does not contest this date, and there is no evidence in the record to contradict this date.
Therefore, we accept that the effective date of the reissued de motion was May 23, 2020.
9 In her petition for review, the appellant does not allege that the agency failed to
comply with the administrative judge’s orders. To the ex tent that the appellant
contends that the agency has f ailed to comply with the administ rative judge’s order, the
12
0262 ID at 8 -9. On review in Walker 1, the appellant only contests the
administrative judge’s finding that the agency did not have to restore her to her
former EAS -22 position or the nearest equivalent position after it rescinded the
February 2020 demotion. 0262 PFR File, Tab 3 at 5. In Walker 2, the appellant
further argue s that the reissued demotion could not be sustained because she was
not fully restored to the status quo ante following the rescission of the decision in
Walker 1. 0402 PFR File, Tab 3 at 6 -9. Thus, the only issue raised in Walker 1 is
whether the appellan t should have been physically returned to her former EAS -22
position or an equivalent position between the rescission of the first demotion
action, i.e. , April 9, 2020, and the effective date of the reissued demotion, i.e. ,
May 23, 2020.
¶22 Even if we were t o agree with the appellant’s arguments, we can discern no
tangible remedy we could grant the appellant that would correct the agency’s
failure to physically return her to her former EAS -22 position or an equivalent
position for a period of 6 weeks in 2020 . The appellant has already received
relief from the administrative judge such that, on paper, it appears that she was
returned to the EAS -22 position. Id. Additionally, because the agency committed
harmful error in Walker 2, we are rever sing the second demotion action and,
among other things, ordering the appellant’s return to her EAS -22 Station
Manager position. Thus, to the extent that the appellant was relying on the status
quo ante argument to reverse the second demotion, we have granted her request ed
relief, albeit on different grounds. As the Board does not have the power to
reverse time, we discern no further effectual relief that we could grant in favor of
the appellant for the issue presented in Walker 1 other than what has already been
ordered . 0262 PFR File, Tab 3. As there is no further effectual relief to grant in
Walker 1, the appeal is moot and accordingly we deny her petition for review .
appellant should file a petition for enforcement with the regional office. 5 C.F.R.
§ 1201.182 (a).
13
ORDER
¶23 We ORDER the agency to cancel the demotion action and restore the
appellant to her EAS -22 Station Manager pos ition effective May 23, 2020. The
agency must complete this action no later than 20 days after the date of this
decision.
¶24 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefit s 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, inte rest, 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.
¶25 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).
¶26 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).
¶27 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
14
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 me et these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS10
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate f orum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option i s most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately revie w the law applicable to your claims and carefully follow all
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
filing time limits and requirements. Failure to file 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
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 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, 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:
17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a pro hibited personnel 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 Cir cuit or any court
of appeals of competent jurisdiction.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)( B).
11 The 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.
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.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probon o for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a g iven 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_Loc ator/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 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 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 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. | WALKER_KIMBERLY_CH_0752_20_0262_I_1_FINAL_ORDER_2054024.pdf | 2023-07-27 | null | S | NP |
2,840 | https://www.mspb.gov/decisions/nonprecedential/GRAHAM_ERNEST_C_DC_0752_16_0889_I_1_REMAND_ORDER_2054094.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERNEST C. GRAHAM,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -16-0889 -I-1
DATE: July 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
Brian C. Plitt , Esquire, Washington, D.C., for the appellant.
Nikki Greenberg , Washington Naval Yard, 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 his indefinite suspension . For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision , and REMAND
this appeal to the regional office for adjudication of whether the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
improperly continued the appellant ’s indefinite suspension in accordance with
this Remand Order.
BACKGROUND
¶2 The appellant was employed by the agency as a Utility Systems Repair
Operator at the Washington Navy Yard in Washington, D.C. Initial Appeal File
(IAF), Tab 1 at 6, Tab 4 at 51. On April 18, 2016, a coworker of the appellant’s
and his supervisor reported to the agency th at in March and April 2016,
the appellant threatened to kill them and other s. IAF, Tab 4 at 55 -56,
Tab 19 at 2. The U.S. Attorney’s Office for the District of Columbia pressed
charges against the appellant in D.C. Superior Court based on the comments he
made on April 18, 2016. IAF, Tab 4 at 42, 58 -59.
¶3 On June 28, 2016, the agency proposed the appellant’s indefinite suspension
based on reasonable cause to believ e he committed a crime for which
imprisonment m ight be imposed. Id. at 51-53. The agency informed the
appellant that the suspension would continue until “(1) completion of any
criminal proceeding against [him] or a final determination of the investigatio n
into [his] alleged wrongdoing and (2) completion of any subsequent
administrative action taken against [him].” Id. at 52. The agency enclosed a
copy of the materials upon which it relied in deciding to propose the appellant’s
indefinite suspension. Id. at 51. Those materials included the criminal complaint
and warrant for the appellant’s arrest , two affidavits in support of the arrest
warrant , and an email from an Assistant United States Attorney indicating the
appellant was being prosecuted for attempted threats which carried a maximum
penalty of 180 days in jail and $1,000 in fines. Id. at 51, 54 -56, 59. After the
appellant responded to the notice of proposed in definite suspension on
July 12, 2016 , the agency issued its decision on August 15, 2016, informing him
that he would be suspended indefinitely, effective the close of business on
August 12, 2016. Id. at 17 -30.
3
¶4 The appellant was acquitted of all c riminal charges on
November 21, 2016. IAF , Tab 16 at 22 -37. On December 8, 2016, the agency
proposed his removal for sleeping on duty, falsification of log sheets, and
inappropriate comments based on comments with which he had been criminally
charged . IAF, Tab 4 at 27 -28, Tab 19. It provided the appellant with 25 days to
respond to the proposed removal. IAF, Tab 19 at 4. Due to a request for an
extension from the appellant ’s representative, the appellant did not provide his
oral and written reply until Febru ary 2, 2017. IAF, Tab 16 at 73 -78; Tab 18,
Hearing Recording Audio 2 of 3 at 1:36:10 -1:39:10 (testimony of the appellant).
On May 4, 2017, the agency issued its decis ion removing the
appellant from service. Graham v. Department of the Navy , MSPB Docket No.
DC-0752 -17-0577 -I-1, Initial Appeal File (0577 IAF), Tab 3 at 19-33.
¶5 The appellant filed the instant appeal , in which he challenged his indefinite
suspension of more than 14 days.2 IAF, Tab 1 at 6 -9. Specifically, he alleged
that t he agency lacke d reasonable cause to believe he had committed a crime, the
penalty of a suspension was excessive , and he had been subject to unlawful
discrimination and reprisal for prior Equal Employment Opportunity (EEO)
activity. IAF, Tab 1 at 8-9, Tab 17 at 2 -3. The administrative judge conducted a
hearing. IAF, Tab 18. In an initial decision, he found that the agency had
reasonable cause to believe the appellant had committed a crime for which
imprisonment may be imposed, the indefinite suspension had an ascertai nable
end, the agency had established nexus, and the indefinite suspension was a
reasonable penalty. IAF, Tab 21, Initial Decision (ID) at 4-7. The administrative
judge also found that the appellant did not prove that his indefinite suspension
was based on race or age discrimination, or in re taliation for EEO activity.
ID at 8-11. The administrative judge therefore affirmed the agency’s indefinite
suspension decision. ID at 11.
2 The removal is the subject of a separate appeal currently pending before the Board on
review. 0577 IAF, Tab 1 at 2, Tab 22, Initial Decision at 1, 8.
4
¶6 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. On review, the appellant argues that the administrative judge
erred in finding the agency was justified in issuing the indefinite suspension as
the ruling was based on the erroneous belief that the appellant was criminally
charged with “Threatening to Injure and Kidnap a Person.” Id. at 10. He disputes
that the agency had reasonable cause to believe he committed a crime punishable
by imprisonment . Id. at 7-8, 10. Finally, he reiterates his claim from below that
the indefinite suspe nsion should have ended when he was acquitted on all
charges. Id. at 11-14. The agency has filed a response in opposition to the
petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly sustained the imposition of the indefinite
suspension.
¶7 To establish that an indefinite suspension is valid, the agency must show the
following: (1) it imposed the suspension for an authorized reason; (2) the
suspension h as an ascertainable end, i.e., a determinable condition subsequent
that will bring the suspension to a conclusion; (3) the suspension bears a nexus to
the efficiency of the service; and (4) the penalty is reasonable. Henderson v.
Department of Veterans Af fairs , 123 M.S.P.R. 536 , ¶ 5 (2016), aff’d , 878 F.3d
1044 (Fed. Cir. 2017). One of the authorize d circumstances for imposing
an indefinite suspension is when the agency has reasonable cause to believe
an employee has committed a crime for which a sentence of imprison ment could
be imposed. Id. Here, the parties do not challenge the administrative judge’s
findings as to the nexus or penalty, and we discern no basis to disturb them .
The administrative judge made a proper r easonable cause
determination.
¶8 As noted above, an agency may indefinitely suspend an employee if it has
reasonable cause to believe that he has committed a crime for which a sentence of
imprisonment could be imposed . Henderson , 123 M.S.P.R. 536 , ¶ 5. The
5
administrative judge determined that the appellant’s arrest , followed by the
criminal information, established reasonable cause. ID at 5. The appellant
appears to disp ute this finding, arguing on review that the arrest alone was
insufficient. PFR File, Tab 1 at 8. His argument misconstrues the administrative
judge’s reasoning and is not persuasive.
¶9 The Board has held that “reasonable cause” in the context of an indef inite
suspension based on possible criminal misconduct is virtually synonymous with
“probable cause,” which is necessary to support a grand jury indictment, i.e.,
probable cause to believe that a crime has been committed and that the accused
has probably c ommitted it. Henderson , 123 M.S.P.R. 536 , ¶ 7. In Dunnington v.
Department of Justice , 956 F.2d 1151 (Fed. Cir. 1992), the U.S. Court of Appeals
for the Federal Circuit addressed the issue of what constitutes “reasonable cause”
in the context of an indefinite suspen sion. The court stated that neither an arrest
warrant alone, nor an actual arrest , is sufficient . Dunnington , 956 F.2d at 1157 .
On the other hand, “a formal judicial determination made following a preliminary
hearing , or an indictment following an inves tigation and grand jury proceedings ”
is more than sufficient. Id. “[T] he best evidence of reasonable cause will be that
determined by the agency after an appropriate investigation of the facts and
circumstances of the alleged misconduct.” Id. An arrest warrant combined with a
criminal complaint supported by witness statements may support a determination
of reasonable cause if the documents provide sufficient information from which
the agency can “assure itself that the surrounding facts are suf ficient to justify”
indefinitely suspending the appellant without conducting its own investigation.3
Id. at 1156 -58.
3 To the extent the appellant suggests that the agency’s reasonable cause determination
was “proven to be false” by his acquittal, we are not persuaded. PFR File, Tab 1 at 6.
Because indefinite suspensions are taken for the purpose of allowing examination of
misconduct, and not as a punishment for misconduct, the fact that the appellant was
acquitted does not prove that the suspension itself was improper . Novak v. Department
6
¶10 In this case, the agency indefinitely suspended the appellant after it learned
that he had been charged by criminal information with two counts of attempted
threats and that the case had been assigned to an Assistant U.S. Attorney for
prosecution.4 IAF, Tab 4 at 42, 50. Under District of Columbia law, an offense
of attempted threat s is punishable by a fine and incarceration of up to 180 d ays.
D.C. Code §§ 22-407, 22 -1803 , 22-3571.01. Because the maximum sentence is
less than 1 year, an attempted threat may be prosecuted either by indictment or by
criminal information. See D.C. C ode § 23-301. The administrative judge was
correct that, u nder the circumstances, the agency had reasonable cause to believe
that the appellant had committed a crime for which a sentence of imprisonment
might be imposed. ID at 4 -5.
¶11 This case is similar to Hernandez v. Department of the Navy , 120 M.S.P.R.
14, ¶ 2 (2013), in which an agency indefinitely suspended an appellant after he
had been charged with various misdemea nors under California law. The appellant
in Hernandez had not been indicted . Id., ¶ 13. The Board observed that in
California, where the appellant had been charged, only felony cases are presented
to a grand jury for indictment. Id., ¶¶ 7, 13. In misd emeanor prosecutions, the
complaint was the only formal accusatory pleading filed with the court, and
therefore, under California law, the misdemeanor complaint filed against the
appellant was comparable to an indictment. Id., ¶ 13. For the reasons expla ined
above, the law of the District of Columbia is similar to the extent that a criminal
offense carrying a sentence of less than 1 year can be prosecuted by criminal
of the Treasury , 11 M.S.P. B. 94, 458 -59 (1982), aff’d , 723 F.2d 97 (Fed. Cir. 1983 )
(Table).
4 The appellant argues that the administrative judge failed to state whether the
“attempted threats” with which the appellant was charged constituted a misdemeanor ,
versus a felony, charge. PFR File, Tab 1 at 10. However, the administrative judge was
not required to determine whether the crime was a misdemeanor or felony charge but, as
the administrative judge correctly found, whether the agency had reasonable cause to
believe that a crime was committed for which imprisonment may be imposed. ID
at 4-5.
7
information without a grand jury indictment. Therefore, the criminal information
in this case is comparable to an indictment.
¶12 The remaining issue to be resolved, then, is if the agency had sufficient
information before it at the time it proposed to suspend the appellant that
provided reasonable cause to believe that the appellant had commit ted a crime for
which he could be imprisoned. Id., ¶ 16. The evidence presented to the agency at
the time it imposed the appellant’s indefinite suspension included the criminal
complaint and warrant for the appellant’s arrest, two affidavits in support o f the
arrest warrant, and an email from the Assistant U.S. Attorney indicating the
appellant was being prosecuted for attempted threats which carried a maximum
penalty of 180 days in jail and $1,000 in fines. IAF, Tab 4 at 51, 54 -56, 59 . One
of the affidavits contained specific information regarding the appellant’s alleged
threats. IAF, Tab 4 at 55. For example, the affidavit indicated that the appellant
told his coworker “on multiple occasions . . . that he was going to come in and
kill all these motherfuckers,” referring to his supervisor and others . Id. The
affiant went on to state that the appellant had reportedly advised this same
coworker that he had added him to “the list” of people the appellant was going to
kill. Id. We find that these facts provided the agency with reasonable cause to
believe that the appellant threatened “to injur e . . . a person,” a misdemeanor for
which a term of imprisonment could be imposed.5 See Rampado v. U.S. Customs
5 On review, the appellant asserts that the administrative judge “repeatedly and
mistakenly state[s] that [the appellant] had been issued an arrest warrant based on
‘threatening to injure and kidnap a person.’” PFR File , Tab 1 at 10. A readin g of the
arrest warrant shows that it was issued for exactly that, “Threatening to Injure and
Kidnap a person, in violation of 22 D.C. Code, Section 1810 (2001 ed.))” IAF, Tab 4
at 54. The relevant statute provides threatening “to kidnap any person or to injure the
person” as alternative bas es for the criminal offense. D.C. Code § 22 -1810. The
appellant is correct that the affidavits in support of the arrest warrant do not include
kidnapping in the narrative description. IAF, Tab 4 at 54 -55. It appears that the basis
of his arrest was threatening to injure other agency employees. Id. at 55. The
administrative judge did not make a finding that the appellant threatened to kidnap
anyone. Instead, to the extent he mentioned kidnapping, he was merely reciting what
was stated in the warrant. ID at 1 -2, 4. Therefore, we discern no error.
8
Service , 28 M.S.P.R. 189 , 190 -191 & n.1 (1985) (finding that the appellant’s
admission to unauthorized disclosure of information, a crime for which
imprisonment could be imposed, provided the agency with reasonable cause for
his indefinite suspension) .
The administrative judge correctly determined that the suspension
had an ascertainable end.
¶13 The administrative judge found that t he indefinite suspension had
an ascertainable end. ID at 5 -6. We agree. The appellant challenges this
determination. But his arguments concern the continuation of the indefinite
suspension after he was acquitted, which is a separate matter that we will address
below. PFR File, Tab 1 at 11; Rhodes v. Merit Systems Protection Board ,
487 F.3d 1377 , 1380 -32 (Fed. Cir. 2007).
¶14 In determining whether the indefinite suspension w as proper, we look at the
facts known by the agency at the time it was imposed. See Rhodes , 487 F.3d
at 1380 (“An inquiry into the propriety of an agency’s imposition of an indefinite
suspension looks only to facts relating to events prior to suspension t hat are
proffered to support such an imposition.”). To be valid, an indefinite suspension
must have an ascertainable end, that is, a determinable condition subsequent that
will bring the suspension to a conclusion. Arrieta v. Department of Homeland
Secur ity, 108 M.S.P.R. 372 , ¶ 8 (2008). An indefinite suspension may extend
through the completion of both a pending investigation and any subsequent
administrative action, provided the agency notifies the appellant of this
possibility. Engdahl v. Department of the Navy , 900 F .2d 1572 , 1578 (Fed. Cir.
1990); Camaj v. Department of Homeland Security , 119 M.S.P.R. 95 , ¶ 11 (2012);
Arrieta , 108 M.S.P.R. 372 , ¶ 8; 5 C.F.R. § 752.402 . Here, the appellant’s
indefinite suspension had an ascertainable end because the agency stated in the
suspension proposal and decision notices that the suspension would end following
the disposition of the criminal charges against the appellant and the completion o f
9
any administrative action. IAF, Tab 4 at 17, 52 . Therefore, we decline to disturb
the administrative judge’s determination to affirm the indefinite suspension.
The appeal must be remanded to determine if the agency impermissibly continued
the suspensio n after the appellant responded to his proposed removal.
¶15 The appellant argued below, and reargues on review, that the agency
improperly continued his indefinite suspension beyond the date of his
acquittal. IAF, Tab 16 at 14 -15; PFR File, Tab 1 at 11 -14. The administrative
judge analyzed this argument as a challenge to whether the indefinite suspension
had an ascertainable end. ID at 5 -6. When a suspension continues after the
condition subsequent that would terminate it, the continuation of the suspensi on
is a reviewable agency action separate from the imposition of the suspension
itself. Sikes v. Department of the Navy , 2022 MSP B 12 , ¶ 7 (citing Rhodes ,
487 F.3d at 1381 (recognizing that “the agency’s failure to terminate an indefinite
suspension after a condition subsequent is a separately reviewable agency
action”)). Here, the administrative judge erred in considering the inde finite
suspension and its continuation as one action.
¶16 In analyzing th e question as to whether the suspension had an ascertainable
end, the administrative judge concluded that it did. ID at 5 -6. He reasoned that
the delay of 3 weeks between the appella nt’s November 21, 2016 acquittal and his
December 8, 2016 proposed removal was reasonable. ID at 5 -6. The appellant
does not directly challenge this finding. Nonetheless, for the reasons set forth
below, we find that the time it took the agency to issue the removal decision itself
should have been part of the calculus in deciding if the agency’s delay was
reasonable. We remand for further proceedings to resolve this issue.
¶17 Whether the continuation of an indefinite suspension is proper depends on
events occurring after the agency imposed the suspension. Rhodes , 487 F.3d
at 1380 -81. An agency must act within a reasonable amount of time to end the
suspension once the identified condition subsequent is satisfied. Id.; Sikes ,
2022 MSPB 12 , ¶ 8. When, as here, the suspension is conditioned on the
10
resolution of criminal charges and any subsequent agency act ion, the agency must
implement its subsequent action within a reasonable time after criminal
proceedings are concluded. Camaj , 119 M. S.P.R. 95 , ¶ 11. In determining the
reasonableness of any delay, the Board has traditionally looked at the amount of
time it took the agency to propose an adverse action. Id., ¶ 12 (concluding that a
delay of nearly 3 months between the resolution of the criminal charges against
an appellant and his proposed removal was unreasonable); Jarvis v. Department
of Justice , 45 M.S.P.R. 104 , 107, 111-12 (1990) (finding that a period of
2 1/2 months between the dismissal of an indictment against an appellant and his
proposed suspension was unreasonable). Given this case law, it is not surprising
that the administrative judge examined the period bet ween the appellant’s
acquittal and his proposed removal. ID at 5 -6.
¶18 Here, although the agency acted relatively quickly to propose the
appellant’s removal on December 8, 2016, it did not issue its removal decision
until May 4, 2017, five months later. While Board cases appear to look at this
issue more narrowly, as discussed above, an indefinite suspension may only
continue through the “ completion of any subsequent administrative
action.” 5 C.F.R. § 752.402 (emphasis added). “The cornerstone of the [Civil
Service Reform Act of 1978’s] protections is the aggrieved employee’s right to
seek review of adverse agency action in the . . . Board.” LeBlanc v. United
States , 50 F.3d 1025 , 1029 (Fed Cir. 1995). That right is triggered by the
agency’s decision on its proposed action, not the proposal. 5 U.S.C. § 7513 (d);
Emerald v. U.S. Postal Service , 49 M.S.P.R. 586 , 587 -88 & n.1
(1991). Therefore, to determine if an indefinite suspension continued for an
unreasonable time, the relevant ending date is the one on which the agency issues
its decision on any proposed action arising out of the same conduct that led to the
crimina l charges. See Engdahl , 900 F.2d at 1578 -79 (finding that an agency did
not unreasonably delay the appellant’s “actual removal” following resolution of
the criminal charges against him). Permitting the agency to take an unlimited
11
amount of time to make a decision on a proposed adverse action wh ile keeping
the appellant on an indefinite suspension would run contrary to the requirement
that an indefinite suspension have an ascertainable end. See Arrieta ,
108 M.S.P.R. 372 , ¶ 8.
¶19 Based on the decision letter indefinitely suspending the appellant, the
condition subsequent triggering the cessation of the appellant’s suspension was
the “(1) completion of any criminal proceedings . . . and (2) completion of any
subsequent administrative action taken against [the appellant] .” IAF, Tab 4 at 17,
52 (emphasis added). As discussed above , the agency timely proposed the
appellant’s removal on December 8, 2016, based in part on the conduct
underlying the criminal charges. IAF, Tab 19. Due to a request for extension
from the appellant’s representative, the appellant provided an oral and written
reply on February 2, 2017. IAF, Tab 16 at 73 -78; Tab 18, Hearing Recording
Audio 2 of 3 at 1:36:10 -1:39:10 (testimony of the appellant). This portion of the
delay in the agency’s removal decision appears to be the fault of the appellant’s
representative.
¶20 If this were the entirety of the delay, the app ellant would be unable to
prevail on a claim that the agency improperly continued his indefinite
suspension. See Engdahl , 900 F.2d at 1578 -79 (declining to find that the
continuation of an appellant’s indefinite suspension was improper when the delay
was due to his attorney’s requests for extensions to reply to the appellant’s
proposed removal). However, there is no explanation in the record for the
3-month delay between the appellant’s reply and the agency’s May 4, 2017
removal decision. 0577 IAF, Tab 3 at 19 -33. In fact, the deciding official signed
and dated his Douglas factor checklist on March 28, 2017 , thus indicating that
he had already considered the appellant’s penalty on or before that date .
Id. at 25, 33 ; see Douglas v. Veterans Administratio n, 5 M.S.P.R. 280 , 305 -06
(1981) (providing a nonexhaustive list of factors relevant to penalty
determinations) . It does not appear f rom the record that there were any unusual
12
circumstances that would explain why it took the agency until May 4, 2017 , to
issue its removal decision .
¶21 Neither the parties nor the administrative judge addressed th is 3-month
delay , and the record is not developed on this issue . Therefore, w e cannot resolve
this issue on the current record. Thus, we must remand the case to the regional
office for further development of the record and adjudication of this issue. See
Montgomery v. Department of Health and Human Services , 123 M.S.P.R. 216 ,
¶ 13 (2016) (remanding an appeal for the administrative judge to hold the
appellant’s requ ested hearing and develop the record). Even if the record were
fully developed, remand would be necessary here. The administrative judge who
oversaw the proceedings below and issued the initial decision is no longer
employed by the Board. When there is conflicting testimony on a material issue,
and a new administrative judge will decide the case, the testimony shou ld be
heard again to permit him to make credibility determinations based on witness
demeanor. Lin v. Department of the Air Force , 2023 MSPB 2 , ¶ 24. On remand,
the administrative judge may incorporate into the remand initial decision the
findings from the initial decision, as modified by this Remand Order above ,
affirming the appellant’s indefinite suspension. Id., ¶ 9. If the administrative
judge finds that the agency failed to issue its removal decision within a
reasonable time, the a dministrative judge should order the agency to reinstate the
appellant to the date of the resolution of criminal charges. Camaj , 119 M.S.P.R.
95, ¶ 11.
¶22 Finally, we briefly dispose of the appellant’s remaining arguments on
review. He argues that the continuation of his indefinite suspension was not
justified because the agency failed to charge him with the same “offense” as the
one set forth in the criminal charges. PFR File, Tab 1 at 13. Generally, once the
underlying criminal case against an appellant is resolved, an agency must
immediately terminate the indefinite suspension unless it contemplates effecting
further disciplinary act ion within the foreseeable future. Welch v. Department of
13
Justice , 106 M.S.P.R. 107 , ¶¶ 3, 5 (2007). To the extent the appellant suggests
that the conduct underlying his arrest is not the same as that which led to his
indefinite suspension and removal, we are not persuaded. The “inappropriate
comments” charge consists of the underlying miscondu ct for which the appellant
was criminally charged. Compare IAF, Tab 19 at 2, with IAF, Tab 4 at 27 -28, 51,
55. Furthermore, the fact that the appellant was ultimately acquitted does not
prevent the agency from proposing his removal based on the same misc onduct
underlying the charge. See Pflanz v. Department of Transportation , 21 M.S.P.R.
71, 73 (1984), aff’d , 776 F.2d 1058 (Fed. Cir. 1985) (Table). The appellant’s
acquittal on criminal charges is not relevant in the administrative proceedings
when the a gency action is based upon the misconduct which led to the criminal
charge not on the fact of arrest or indictment, which is the case here. Id.
¶23 For the reasons discussed above, we remand this case to the regional office
for further adjudication of the a ppellant’s claim that the agency improperly
continued his indefinite suspension beyond February 2, 2017, in accordance with
this Remand Order. The new administrative judge may incorporate into the
remand initial decision the findings, discussed above, tha t the agency properly
imposed the indefinite suspension in the first place.
ORDER
¶24 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 | GRAHAM_ERNEST_C_DC_0752_16_0889_I_1_REMAND_ORDER_2054094.pdf | 2023-07-27 | null | DC-0752 | NP |
2,841 | https://www.mspb.gov/decisions/nonprecedential/MCCRAY_SCOTT_CH_1221_16_0553_W_1_FINAL_ORDER_2054108.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SCOTT MCCRAY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -16-0553 -W-1
DATE: July 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Scott McCray , Milwaukee, Wisconsin, pro se.
Erin Buck Kaiser , Esquire, Milwaukee, Wisconsin, 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
denied his request for corrective action in this individual right of action (IRA)
appeal . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneo us 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
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 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 du e
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 -11 Social Scien ce Program Specialist for the
agency. Initial Appeal File (IAF), Ta b 9 at 46. The appellant filed an IRA
appeal, arguing that the agency took the following actions against him in
retaliation for protected disclosures : (1) his supervisor ordered him to attend
weekly staff meetings run by the Mental Health Intensive Care Management
(MHICM) Program Director, even though the appellant had previously been
excused from attending those meetings due to an equal employment opportunity
(EEO) complaint that he had filed against the Program Director ; (2) during a
meeting, the Medica l Center Director verbally threatene d, humiliated, and
belittled the appellant ; and (3) after the appellant filed an internal whistleblower
complaint, the Medical Center Director told the Administrative Investigation
Board (AIB) investigating that complain t that the appellant was a chronic
complainer, a disgruntled employee, and a liar. IAF, Tab 1 at 11 -12, Tab 21 at 3.
The administrative judge thus found that the appellant established jurisdiction
over his appeal. IAF, Tab 11 at 4 -6.
3
¶3 After a hearing, the administrative judge issued an initial decision denying
the appellant’ s request for corrective action . IAF, Tab 28, Initial Decision (ID).
The administrative judge found that none of the three actions listed above, either
alone or together, constitu ted personnel actions within the meaning of 5 U.S.C.
§ 2302 (a)(2)(A) . ID at 9-16.
¶4 The appellant has filed a petition for review , contesting the administrative
judge’s analysis and arguing that th e administrative judge was biased . 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.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 When rev iewing the merits of an IRA appeal,2 the Board must determine
whether the appellant has established by preponderant evidence that he made a
protected disclosure that was a contributing factor in the agency’s decision to take
or fail to take a personnel act ion. E.g., Aquino v. Department of Homeland
Security , 121 M.S.P.R. 35 , ¶ 10 (2014) . A preponderance of the evidence is the
degree of relevant evidence that a reasonable person, considering the record as a
whole, would accept as sufficient to find that a contested fact is more likely to be
true than untrue. Id. If the appellant meets that burden , the Board must order
corrective action unless the agency can establish by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
disclosure. Id.
The appellant established that he made a protected disclosure.
¶6 The administrative ju dge found that the appellant established by
preponderant evidence that he made a pr otected disclosure evidencing several
2 The administrative judge found that the appellant established jurisdiction over this
IRA appeal. IAF, Tab 11 at 4 -6. Neither party challenges this finding on review , and
we discern no basis to di sturb it.
4
categories of misconduct . ID at 9. Specifically, the administrative judge found
that a disinterested observer with knowledge of the e ssential facts known to and
readily ascertainable by that individual could reasonably conclude that the
agency’s actions evidenced at least one of the categories of misconduct under
5 U.S.C. § 2302 (b)(8)(ii). Id. Neither party challenges this determination on
review , and we discern no reason to upset this finding .
The appellant is not entitled to corrective action because he failed to establish by
preponderant evidence that he suffered a covered personnel action.
¶7 In his petition for review, the appellant challenges the administrative
judge’s finding that he failed to establish that the agency subjected him to a
personnel action. PFR File, Tab 1 at 4 -7. He asserts that the administrative judge
overlooked and misin terpreted a number of unspecified factors and recounts the
three incidents he claims are personnel actions, arguing that the incidents
demonstrate that the agency subjected him to a hostile work environment in
reprisal for his protected disclosures. Id.
¶8 Under the Whistleblower Protection Act (WPA),3 a “personnel action” is
defined to include, among other enumerated actions, “any other significant
change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302 (a)(2)(A)(xii). The legislative history of the 1994 amendment to the WPA
indicates that “any other significant change in duties, responsibilities, or working
conditions” should be interpreted broadly, to include “any harassment o r
discrimination that could have a chilling effect on whistleblowing or otherwise
undermine the merit system and should be determined on a case -by-case basis.”
130 Cong. Rec. H11,419, H11,421 (daily ed. Oct. 7, 1994) (statement of
3 The WPA has been amended several times, including by the Whistleblower Protection
Enhancement Act. The references herein to t he WPA include those amendments . As to
the relevant legislation enacted dur ing the pendency of this appeal, we have concluded
that it does not affect the outcome of the appeal.
5
Rep. McCloskey); see Ska rada v. Department of Veterans Affairs , 2022 MSPB
17, ¶ 14.
¶9 However, notwithstanding the broad interpretation accorded to the term
“significant change in duties, responsibilities, or working conditions,” not every
agency action is a “personnel action” under th e WPA. Skarada , 2022 MSPB 17 ,
¶ 15 (citing King v. Department of Health and Human Services , 133 F.3d 1450 ,
1452 -53 (Fed. Cir. 1998) ). Rather, an agency action must have practical
consequence s for the employee to constitute a personnel ac tion. Id. In
determining whether an appellant has suffered a “significant change” in his
duties, responsibilities, or working conditions, the Board must consider the
alleged agency actions both collectively and individually. Id., ¶ 16 (citing
Holderfiel d v. Merit Systems Protection Board , 326 F.3d 1207 , 1209 (Fed. Cir.
2003)) ; see Sistek v. Department of Veterans Affairs , 955 F.3d 948, 955-56 (Fed.
Cir. 2020) . In sum, o nly agency actions that, individually or collectively, have
practical and significant effects on the overall nature an d quality of an
employee’s working conditions, duties, or responsibilities will be found to
constitute a personnel action covered by section 2302(a)(2)(A)(xii). Skarada ,
2022 MSPB 17, ¶ 16. As such , a number of agency actions may be covered
thereunder collectively, even if they are not covere d personnel actions
individually , if, together , those actions are sufficiently severe or pervasive to
significantly impact the appellant’s working conditions . Id., ¶¶ 16, 18, 29 .
¶10 The appellant alleged that, as a result of his protected disclosures, his ch ain
of command subjected him to a hostile work environment, i.e., subjected him to
harassment that constituted a significant change in his working conditions. IAF,
Tab 1 at 11 -12, Tab 21 at 3 . The administrative judge analyzed three specific
incidents that the appellant alleged were personnel actions that demonstrate a
hostile work environment , none of which she found sufficient to carry the
appellant’s burden. ID at 9-16. Specifically, the administrative judge found that
the 30 -minute long June 30, 201 5 meeting, in which the former Medical Center
6
Director discussed the res ults of an investigation into the appellant’s allegations
with him, was not a personnel action. ID at 10-12. The administrative judge
further found that the presence of a third -party observer at those meetings as a
note taker was not only common practice, but also was a reasonable measure
under the circumstances, considering that the results of the investigation were
inconsistent with the appellant ’s allegations. ID at 11 . Based on the testimony of
all three participants as to what transpired in the meeting, the administrative
judge found that the meeting itself, as well as the conduct of the appellant’s
supervisor therein, fell short of being a personnel action. ID at 11 -12. We ag ree.
¶11 Concerning the appellan t’s contention that the former Medical Center
Director called him a chronic complainer, a disgruntled employee, and a liar in
his testimony before the AIB, the administrative judge noted the former
Director ’s admission th at he had described the appellant in that way. ID at 12.
However, the administrative judge also found that the former D irector credibly
testified that he had not intended to belittle or insult the appellant , but rather to
testify truthfully before the AIB , and that such testimony is not a personnel
action . Id. Regarding the appellant’s attendance at the weekly MHICM Program
staff meeting, the administrative judge found , based on the testimony before her,
that all MHICM Program employees were expected to atte nd the 1-hour weekly
staff meeting, that excusing the appellant from attending them was intended as a
temporary accommodation while the agency investigated his December 2013 EEO
complaint, and that, after the agency issued its final decision on that complaint,
the appellant’s former supervisor began to ask when he would resume attending
the weekly staff meeting. ID at 12 -13. The administrative judge found that doing
so did not constitute a personnel action, nor did it demonstrate a hostile work
environment , because the appellant did not present evidence of any behavior
therein so pervasive that it objectively could be considered a change in working
conditions. ID at 12 -14. While the administrative judge generally credited the
appel lant’s testimony that the meetings were stressful, in large part due to the
7
presence of his former supervisor, the administrative judge found no evidence in
the record to indicate that the former supervisor , who participated in the meetings
by telephone, had engaged in conduct that would give rise to a hostile work
environment. ID at 15. Instead, she found that the appellant generally tended “to
exaggerate and to interpret routine events negatively” and commented that his
“heightened sensitivity ” did not convert an otherwise ordinary work environment
into a hostile one.4 Id.
¶12 We agree with the administrative judge that these three incidents
individually do not comprise a personnel action under 5 U.S.C. § 2302 (a)(2)(A) .
ID at 9 -16. Nor do we find that t hese incidents collectively had such a practical
and significant effect on the overall nature and quality of the appellant’s working
conditions, duties , or responsibilities as to constitute a personnel action covered
by section 2302(a)(2)(A)(xii) . See Sistek , 955 F.3d at 955-56 (f inding that the
agency’s investigation of the appellant was routine and did not , either on its own
or as part of a broader set of circumstances, ri se to the level of a significant
change in working conditions) ; Holderfield , 326 F.3d at 1209 (suggesting that a
number of minor agency actions relating to an appellant’s working conditions
may amount to a covered personnel action under section 2302(a)(2)( A)(xii)
collectively, even if they are not covered personnel actions individually) . Based
4 The appellant argued, in part based on these statements, that the administrati ve judge
was biased against him, contending that her statements to him were “harsh, arbitrary,
untrue, and not sup ported by evidence.” PFR File, Tab 1. In making a claim of bias or
prejudice against an administrative judge, a party must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators . Oliver v.
Department of Transporta tion, 1 M.S.P.R. 382 , 386 (1980) . Moreover, an
administrative judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’ s comments or actions evidence “ a
deep -seated favoritism or antagonism that would make fair judgment impos sible.”
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)). Our r eview of the hearing transcript
does not reveal any such conduct on the administrative judge’s part, and on that basis,
we find that t he appellant’s allegations fail to overcome the presumption and do not
meet the high standard required to demonstrate bias .
8
on the consistent testimony of the participants as to what transpired in the
30-minute meeting that the former Medical Center D irector called to review the
results of the agency’s investigation into the appellant’s allegations , the
administrative judge found that , despite the appellant’s frustration with t he results
of the investigation, it fell far short of evincing a personnel action. ID at 11-12.
The administrati ve judge determined that the former M edical Director’s testimony
before the AIB, however frank, was what the Director believed to be the truth,
and thus was not a personnel action.5 ID at 12. Similarly, the administrative
judge found that requiring the appellant to attend the 1-hour weekly MHICM
Program staff meeting , despite the stress and anxiety it caused him , did not
evidence the kind of pervasive and severe behavior that could objectively be
considered a change in working conditions sufficient t o constitute a hostile work
environment. ID at 14.
¶13 The Board will not overturn a n administrative judge’ s demean or-based
credibility findings merely on the basis of a disagreement with those findings .
Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1372 (Fed. Cir. 2016).
The issue of credibility is necessarily intertwined with the administrative judge’s
findings concerning the seriou sness of the incidents involved here , and, as such,
those findings deserve deference. Id. at 1372 -73. Because t he appellant has
identified no sufficiently sound reason to overturn the administrative judge’ s
findings, we deny his petition for review . The appellant’s allegations,
collectively and individually, although indicative of an unpleasant and
contentious work environment, d o not establish that he suffered a significant
change in his working conditions under the WPA . See Skarada , 2022 MSPB 17,
¶ 29 (finding that the appellant’s allegations, collectively and individually,
5 Regardless of whether such statements could constitute evidence of retaliatory animus
for the appellant’s whistleblowing activity, in the absence of a personnel action under
5 U.S.C. § 2302 (a)(2)(A), no prohibited personnel practice occurred. See Shivley v.
Department of the Army , 59 M.S.P.R. 531 , 536 (1993).
9
although indicative of an unple asant and u nsupportive work environment, did not
establish that he suffered a significant change in his working conditions under the
WPA ).
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how co urts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have question s
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
6 Since the iss uance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono fo r information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
11
race, color, religion, sex, national origin, or a disabling condition, you ma y be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Em ployment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Oper ations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, the n you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
12
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 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
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCCRAY_SCOTT_CH_1221_16_0553_W_1_FINAL_ORDER_2054108.pdf | 2023-07-27 | null | CH-1221 | NP |
2,842 | https://www.mspb.gov/decisions/nonprecedential/MILAN_JOSHUA_CH_0752_16_0574_I_1_FINAL_ORDER_2054112.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSHUA MILAN,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-0752 -16-0574 -I-1
DATE: July 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua Milan , Shake r Heights, Ohio, pro se.
Juliana B . Pierce , Esquire, Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for revi ew of the initial decision, which
dismissed his removal appeal for failure to prosecute . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial de cision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the reco rd
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 August 19, 2016, the appellant was removed from his Contact
Representative position. Initial Ap peal File (IAF), Tab 7 at 24. The appellant
filed a Board appeal of his removal and requested a hearing. IAF, Tab 1 at 1-6.
In a preliminary status o rder, the administrative judge ordered the parties to
participate in a telephonic status conference. IA F, Tab 4. The appellant failed to
appear at the status conference or notify the administrative judge of his
unavailability in advance . IAF, Tab 5 at 1 -2. In a subsequent o rder, the
administrative judge ordered the parties to submit prehearing submission s and to
participate in a telephonic prehearing conference. IAF, Tab 6 at 1-2, 4. The
administrative judge warned the appellant that, if he did not file prehearing
submissions and/or appear at the prehearing conference or notify her of his
unavailability in advance , then she would dismiss the appeal for failure to
prosecute . IAF, Tab 5 at 2-3. The appellant failed to file a prehearing
submission, appear at the prehearing conference, or notify the administrative
judge of his unavailability . IAF, Tab 10. The administrative judge then issued an
3
initial decision dismissing the appeal for failure to prosecute. IAF, Tab 11, Initial
Decision at 1, 3-4.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The age ncy has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly exercised her discretion to impose the sanction
of dismissal for failure to prosecute.
¶4 The sanction of dismissal may be imposed if a party fails to prosecute or
defend an appeal. See Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶ 7
(2011); 5 C.F.R. § 1201.43 (b). Such a sanction should be imposed only when a
party has failed to exercise basic due diligence in complying with Board orders,
or has exhibited negligence or bad faith in its efforts to comp ly. Williams ,
116 M.S.P.R. 377, ¶ 7. Repeated failure to respond to multiple Board orders can
reflect a failure to exercise basic due diligence. Id., ¶ 9. Absent an abuse of
discretion, the Board will not reverse an administrative judge’s determination
regarding sanctions. Id., ¶ 7.
¶5 In Williams , the Board found that the appellant failed to exercise basic due
diligence in prosecuting her appeal when she made no attempt to respond to or
comply with any of the Board’s three orders, despite receiving explicit warning
that noncompliance with the show cause order could result in a dismissal of her
appeal for failure to prosecute . Id., ¶¶ 10, 12 . The Board further found no abuse
of discretion in the administrative judge’s decision to impose sanctions by
dismissing the appeal for failure to prosec ute. Id., ¶ 12.
¶6 The circumstances of the instant appeal are very similar to those in
Williams . Because there is no evidence that the appellant took any steps to
pursue his appeal until he filed his petition for review, and he was warned that his
failur e to file prehearing submissions and/or appear at the prehearing conference
or notify the administrative judge of his unavailability could result in the
4
dismissal of his appeal for failure to prosecute , we find that the appellant did not
exercise due diligence in prosecuting his appeal.
¶7 In his petition for review, the appellant alleges that he has been trying his
best to survive as a homeless veteran and that he “lost track of everything .” PFR
File, Tab 1 at 4. He further expresses his desire to be reinstated to his former
position. Id. The appellant’s assertions , without more, do not persuade us that
the administrative judge abused her discretion in dismissing his appeal. Although
we are sympathe tic to the appellant’s situation , we find that the administrative
judge properly exercised her discretion to impose a sanction under the
circumstances of this case. See 5 C.F.R. § 1201.43 .
¶8 Accordingly, we affirm the administrative judge’s decision to dismiss the
appeal for failure to prosecute.
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 t ime
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.
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 pe tition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after y our representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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:
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. 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
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), 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.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 co urt 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MILAN_JOSHUA_CH_0752_16_0574_I_1_FINAL_ORDER_2054112.pdf | 2023-07-27 | null | CH-0752 | NP |
2,843 | https://www.mspb.gov/decisions/nonprecedential/MCCULLIN_DAVID_E_DC_0432_17_0588_I_1_REMAND_ORDER_2054144.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID E. MCCULLIN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-0432 -17-0588 -I-1
DATE: July 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
David E. McCullin , Brentwood, Maryland, pro se.
Felippe Moncarz , 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 his removal for unacceptable performance pursuant to 5 U.S.C.
chapter 43 and denied his affirmative defenses. 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 W ashington Regional Office for further adjudication in
accordance with this Remand Order and Santos v. National Aeronautics and
Space Administration , 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 Pursuant to 5 U.S.C. chapter 43, the agency removed the appellant for
unacceptable performance in one critical element of his position as a GS -14
Physical Security Specialist in its Office of Infrastructure Protection (OIP) ,
Infrastructure Security Compliance Division (ISCD) . Initial Appeal File (IAF),
Tab 5 at 22-26, 134. The mission of the OIP is to “l ead the coordinated national
effort to reduce the risk to our critical infrastructure and key resources posed by
acts of terrorism and strengthen national preparedness, timely response, and rapid
recovery in the [e]vent of an attack, natural disaster, or o ther emergency.”
Id. at 136. The ISCD focuses on high -risk chemical facilities. Id. One duty of a
GS-14 Security Specialist in ISCD is to “[p]erform[] vulnerability identification,
risk analysis, assessment of evolving threats, information security, ph ysical
security, and information technology security.” Id. One critical element of the
appellant’s written performance plan, known as the “Post Approvals” goal,
provides as follows:
Review Site Security Plans (SSPs) and Alternative Security
Programs (A SPs) submitted after approval to identify all relevant
changes and analyze whether these changes affect the facility’s
ability to satisfy all applicable Risk Based Performance Standards
(RBPS) . . . . Review must be complete and accurate in order to
ensur e no more than 10% are returned for correction.
Id. at 99, 103. The agency d etermined that the appellant had an unacceptable
return rate of 55.6% between August 20 and October 17, 2016, and placed him on
a 90-day Performance Improvement Plan (PIP) effec tive from October 31 through
January 31, 2017. Id. at 99, 109. The agency found that, during the PIP,
the appellant’s performance in the Post Approvals goal remained unacceptable
(9 of the 11 Post Approval reviews he completed, or 81%, were returned for
correction), and it effected his removal. Id. at 22 -26, 57 -58.
3
¶3 The appellant timely filed his initial appeal. IAF, Tab 1. During a status
conference, the appellant withdrew his request for a hearing and requested a
decision based on the written record. IAF, Tab 8 at 4. In an initial decision dated
November 15, 2017, the administrative judge affirmed the performance -based
removal action and denied the appellant’s affirmative defenses. IAF, Tab 23,
Initial Decision ( ID) at 5-15. The administrative judge found that the agency
established the following by substantial evidence : (1) the Office of Personnel
Management (OPM) approved its performance appraisal system and any
significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of his position; ( 3) the appellant’s
performance standards were valid under 5 U.S.C. § 4302 ; (4) the agency warned
the appellant of the inadequacies of his performance during the appraisal period
and gave him an adequate opportunity to improve; and ( 5) after an adequate
improvement period, the appellant’s performance remained unacceptable in at
least one critical element. ID at 4-10 & n.1. He found that the appellant failed to
establish that retaliation for prior equal employment opportunity (EEO) activity
or age -based discrimination were motivating factors in his removal or that the
contested performance metric disparately impacted i ndividuals over 40.
ID at 10-15.
¶4 The appellant filed a petition for review on December 21, 2017. Petition
for Review (PFR) File, Tab 1. The Clerk of the Board issued a notice to the
appellant informing him that his petition was untimely filed because i t was not
filed on or before December 20, 2017. PFR File, Tab 2 at 1. The Clerk
instructed the appellant how to file a motion to accept the petition as timely or to
waive the time limit for good cause. Id. at 2. The appellant did not file any such
moti on. The agency filed a response opposing the petition for review on the
merits and as untimely filed. PFR File, Tab 5.
4
DISCUSSION OF ARGUME NTS ON REVIEW
We find good cause for the appellant’s untimely filed petition for review.
¶5 A petition for review gene rally 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 in itial decision. 5 C.F.R. § 1201.114 (e).
The initial decision was issued on November 15, 2017, and the petition for review
was due by December 20, 2017. Thus, the appellant filed his p etition for review
1 day late, on December 21, 2017. PFR File, Tab 1.
¶6 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.113 (d),
1201.114(f). 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 or ordinary prudence under the particu lar circumstances
of the case. Sanders v. Department of the Treasury , 88 M.S.P.R. 370 , ¶ 5 (2001).
To determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of the party’s excuse and his showing of
due diligence, whether he is proceeding pro se, and whether he has presented
evidence of the existence of circumstances beyond his control that affected his
ability to comply with the time limits or of unavoidable casualty or misfortune
that similarly shows a causal relationship to his inability to timely file his
petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995),
aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶7 Under limited circumstances, the Board will excuse delays in filing caused
by difficulties encountered with the e -Appeal system. E.g., 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 he had, in fact, accessed the
system prior to the date that his petition was due and, after he became aware that
5
his petition had not been filed, the appellant promptly contacted the Board and
submitted a petition for review that included an explanation of his untimeliness);
Lamb v. Office of Personnel M anagement , 110 M.S.P.R. 415 , ¶ 9 (2009) (finding
good cause for the untimely filin g of a petition for review when the appellant
reaso nabl y believed he timely filed his appeal by completing all questions on the
appeal form and exited the website without receiving a clear warning that his
appeal was not filed). In his petition for review filed on December 21, 2017, the
appellant asserted that he had filed the petition the previous day but that he
received an email that day “stating that the petition was not submitted.”
PFR File, Tab 1 at 3. The Board’s e -Appeal log s show that, although the
appellant created his petition at 3:09 p.m. on December 20, 2017, the day of the
filing deadline, he did not complete the electronic submission until 3:42 p.m. on
December 21, 2017. PFR File, Tab 1. 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.
¶8 We find that the appellant exercised due diligence under the particular
circumstances of his case. The Board’s e -Appeal logs support the appellant’s
statement that he submitted his petition for review following the receipt of an
email notifying him that his saved pleading had not been submitted. PFR File,
Tab 1 at 3. Therefore, we find that the appellant has shown good cause for his
minimal delay in filing.
The administrative judge did not abuse his discretion in denying the appellant’s
motion to compel the agency’s responses to his discovery requests.
¶9 The appellant argues that the “standards of discovery were unreasonable.”
PFR File, Tab 1 at 5. He argues that the administrative judge should have given
him “more leniency” regarding his motion to compel discovery because he could
not afford representation and was proceeding pro se. Id. He argues that he
6
should have been “given at least one additional opportunity” to correctly file his
motion to compel. Id.
¶10 The Board will not reverse an administrative judge’s rulings on discovery
matters, including a mot ion to compel, absent an abuse of discretion. Fox v.
Department of the Army , 120 M.S.P.R. 529 , ¶ 42 (2014). Here, the administrativ e
judge denied the appellant’s motion to compel the agency’s responses to his
discovery requests, finding that he had failed to comport with the Board’s
requirement that any such motion include a copy of the original discovery
request, a copy of the respon se or objections, and a statement showing a good
faith attempt to resolve the dispute before filing the motion. IAF, Tabs 10, 14,
16; see 5 C.F.R. § 1201.73 (c)(1). The record shows that, although the appellant
was put on notice of the potential deficiencies in his motion to compel by the
agency’s opposition motion , IAF, Tab 14 at 3, he filed no reply or other
supplementary pleading. The appellant has not shown error in the administrativ e
judge’s findings on his discovery request , and therefore, he has failed to show an
abuse of discretion in the denial of discovery. To the extent that the appellant felt
disadvantaged by a lack of representation, it is well established that an appellant
who chooses to proceed pro se must accept the consequences of that decision.
See Yanopoulo s v. Department of the Navy , 796 F.2d 468 , 470 (Fed. C ir. 1986);
Brum v. Department of Veterans Affairs , 109 M.S.P.R. 129 , ¶ 5 (2008).
We remand the appeal for further findings on some of the elements of
performance -based action s under chapter 43 .
¶11 At the time the initial decision was issued, the Board’s case law stated that,
to prevail in an appeal of a performance -based action under 5 U.S.C. chapter 43,
an agency must establish the following elements by substantial evidence :
(1) OPM approved its performance appraisal system and any significant changes
thereto ; (2) the agency communicated to the appellant the performance standards
and critical elements of his position ; (3) the a ppellant’s performance standards
are valid under 5 U.S.C. § 4302 ; (4) the agency warned the appellant of the
7
inadequacies of h is performance during the appraisal period and gave h im a
reasonable op portunity to demonstrate acceptable performance ; and (5) the
appellant’s performance remained unacceptable in one or more of the critical
elements for which he was provided an opportunity to demonstrate acceptable
performance. Lee v. Environmental Protect ion Agency , 115 M.S.P.R. 533 , ¶ 5
(2010). Substantial evidence is the “degree of relevant evidence that a reasonable
person, considering the record as a whole, might accept as adequate to support a
conclusion, even though other reasonable persons might disagree.” 5 C.F.R.
§ 1201.4 (p).
¶12 On review, the appellant does not challenge that the action was affected
under a performance appraisal system approved by OPM or that the contested
performance standard was clearly communicated to him. ID at 4-5 & n.1;
PFR File, Tab 1. He reasserts his arguments regarding the validity of the Post
Approvals performance goal , under which a Physical Security Specialist must
obtain a return rate of less than 10 % from his supervisor for security reviews,
asserting that the requirements were “constantly changing” and that an objective
criteri on such as a numerical return rate cannot be used for assignments requiring
subjective judgments. PFR File, Tab 1 at 5; IAF, Tab 1 at 5 , Tab 2 at 9-14, Tab 5
at 103. He argues that the administrative judge erroneously found that the agency
had proven that it had given him a reasonable opportunity to improve his
performance and that the administrative judge ignored the evidence regarding the
agency’s alleged “manipulation” of his return rate. PFR File, Tab 1 at 6; IAF,
Tab 1 at 5 , Tab 2 at 9 -14. Finally, t he appellant contests the administrative
judge’s finding that the agency proved by substantial evidence that his
performance remained unacceptable. PFR File, Tab 1 at 6 -7; ID at 9 -10.
Regarding this finding, he argues that the administrative judge failed to consider
the evidence he submitted purportedly showing that his team leader made errors
in reviewing his reports, which impacted his increasing return rate. PFR File,
Tab 1 at 7. The appellant further asserts that, in arguing that he submitted report s
8
close to the deadline, the agency effectively admitted that they did not provide
him timely feedback. Id.
¶13 The appellant submits certain evidence for the first time on review, namely
a declaration of a former colleague seemingly contained in a Report of
Investigation regarding an EEO complaint filed by the appellant. Id. at 10 -15.
He asserts that the purported new evidence supports his argument that the
“standards for Post Ap proval writing were not understood.” Id. at 5.
The appellant offers no explanation why the declaration that he obtained from the
same colleague and submitted into the record below did not address this
information , and he has failed to show that the decla ration is new or material
evidence. IAF, Tab 18 at 4 -5; see Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) (stating that the Board gen erally 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 will not consider evidence submitte d for the first time with
the petition for review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence). To constitute new and material
evidence, the information contained in the documents, not just the d ocuments
themselves, must have been unavailable despite due diligence when the record
closed . Grassell v. Department of Transportation , 40 M.S.P.R. 554 , 564 (1989) ;
5 C.F.R. § 1201.115 (d). The appellant has not made such a showing regarding
the declaration , which was executed more than 1 month prior to the close of the
record, or information contained therein, all of which predated the appellant’s
removal. Thus, we have not weighed this evidence in reaching the decision to
grant the petition for review , although the administrative judge may consider this
evidence on re mand .
9
We agree with t he administrative judge that the agency satisfied its
burden to prove elements (1) -(3) of a chapter 43 action under the
law in effect at the time of the initial decision.
¶14 As stated above, t he appellant does not challenge th e administra tive judge’s
findings regarding the first two elements of proving a chapter 43
performance -based action —that the action was affected under a performance
appraisal system approved by OPM or that the contested performance standard
was clearly communicated to him. ID at 4-5 & n.1 ; PFR File, Tab 1. Regarding
the third element , we agree with the administrative judge that the agency proved
by substantial evidence that the Post Approvals performance standard was valid.
As set forth in the initial decision, 5 U. S.C. chapter 43 requires that performance
standards, to the maximum extent feasible, permit the accurate evaluation of
performance on the basis of objective criteria. ID at 6 (citing Towne v.
Department of the Air Force , 120 M.S.P.R. 239 , ¶ 21 (2013)); see 5 U.S.C.
§ 4302 (c)(1).2 When, as here, the position involves technical expertise and
assessment, standards may require a degree of subjective judgment that would not
be necessary or proper in a position of less professional or technical nature.
ID at 7 (citing Greer v. Departm ent of the Army , 79 M.S.P.R. 477 , 484 (1998) ).
The administrative judge found that the Post Approvals goal provided an
objective m easurement of performance —requiring a return rate of 10 % or less —
and that the standard was reasonable and realistic. ID at 7 -8. The appellant’s
argument that objective criteria cannot be used to evaluate work product that
requires subjective judgments is unpersuasive. PFR File, Tab 1 at 5; cf. Towne ,
120 M.S.P.R. 239 , ¶ 21 (holding that a performance standard is not valid if it does
not set forth the minimum level of acceptable performance).
¶15 Although the appellant argues on review that the requirements for reports
were “constantly changing” and that “there was no previous guidance that would
2 At the time the initial decision was issued, this provision was designated as 5 U.S.C.
§ 4302 (b)(1).
10
have prevented [a] return,” PFR File, Ta b 1 at 5, the administrative judge
correctly noted that the agency issued a detailed 15 -page post -approval review
protocol, ID at 7; IAF, Tab 5 at 63 -78. The appellant’s supervisor circulated a
draft of this protocol to his team approximately 10 days prio r to placing the
appellant on the PIP, and the team provided input into the protocol. IAF, Tab 5
at 111-27. To the extent that he argues that the Post Approvals standard lacked
specificity prior to this date, it is well established that an agency can fle sh out
vague terminology in a performance standard through additional written or oral
communications, including communications during the PIP period. See Towne ,
120 M.S.P.R. 239 , ¶ 23. Therefore, we agree with the administrative judge’s
findings with regards to elements (1) -(3). ID at 6 -8.
We remand the appeal for further findings on elements (4) and (5).
¶16 The appellant asserts that he was not given a reasonable opportunity to
demonstrate acceptable performance because the agency manipulated his return
rate data. PFR File, Tab 1 at 6 -7. In his response to the affirmative defenses
order, the appellant argued that “given [his] educat ion and experience . . . the
only way [his] return rate could increase from 15 to 80% [was] through
manipulation.” IAF, Tab 11 at 4 -5. On review, the appellant argues that the
administrative judge “ignore[d]” the evidence “on how the return rate can be
manipulated.” PFR File, Tab 1 at 6. He argues that the agency denied his request
for a “blind reading” of his reports, misled him into thinking that collaboration
outside of his section would not impact his return rate , and denied his request —as
a reasona ble accommodation for dyslexia —for exclusion of the return rate as a
performance metric applicable to him , which he alleges demonstrated the
agency’s intent to use a false return rate to support the removal action . Id.
He also disputes the errors and def iciencies in his work product identified by his
team leader. Id. at 7-9. These arguments were raised before the administrative
judge . IAF, Tab 2 at 12 -14, Tab 5 at 31, Tab 11 at 4 -5, 12 -15. In accepting the
agency’s numeric assessment of the appellant’ s return rate as corroborated by
11
documentary evidence of deficiencies in the appellant’s work product , the
administrative judge appears to have implicitly rejected the appellant’s contention
that his return rate was manipulated. ID at 8-10. Under the circumstances, w e
find that the administrative judge’s analysis of elements (4) and (5) needs further
examination, and we direct him to consider and make explicit findings as to the
appellant’s contention that the agency improperly manipulated his return r ate in a
new initial decision on remand . PFR File, Tab 1 at 6 -7.
¶17 In addition , the administrative judge does not appear to have addressed the
appellant’s arguments regarding the failure to accommodate his dyslexia.
IAF, Tab 2 at 14, Tab 11 at 15. We dire ct the administrative judge to notif y the
appellant of his burden and standard of proof regarding such an affirmative
defense , clarify the appellant’s intent regarding this allegation, and adjudicate the
issue as necessary . See Haas v. Department of Homel and Security , 2022 MSPB
36, ¶¶ 28-29; Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶ 13 (2014)
(explaining an appellant’s burden of proof for a claim of discrimination based on
failure to accomm odate a disability) ; see also Alarid v. Department of the Army ,
122 M.S.P.R. 600 , ¶ 17 (2015) (remanding for notice and adjudicat ion of an
affirmative defense that was raised by the appellant but not addressed by the
administrative judge) .
On remand, the administrative judge must afford the parties an
opportunity to submit evidence and argument regarding whether the
appellant’s pla cement on a PIP was proper.
¶18 During the pendency of the petition for review in this case, the U.S. Court
of Appeals for the Federal Circuit held in Santos , 990 F.3d at 1360 -61, that, in
addition to the five elements of the agency’s case set forth in the initial decision,
the agency must also justify the institution of a PIP by proving by substantial
evidence that the employee’s performance was unacceptable prior to the PIP.
The Federal Circuit’s decision in Santos applies to all pending cases, including
this one, regardless of when the events took place. Lee v. Department of Veterans
12
Affairs , 2022 MSPB 11 , ¶ 16. Accordingly, on reman d, the administrative judge
shall give the parties the opportunity to present argument and additional evidence
(including the declaration of the appellant’s former colleague mentioned above)
on whether the appellant’s performance during the period leading up to the PIP
was unacceptable in one or more critical elements and hold a hearing if
appropriate . Id., ¶¶ 15 -17.
¶19 The administrative judge shall then issue a new initial decision consistent
with Santos. See id. The administrative judge may incorporate his prior findings
on elements (1)-(3) of the agency’s case in the new initial decision . See id. If the
argument or evidence on remand regarding the appellant’s pre -PIP performance
relates to the other elements of the agency’s case, the administrative j udge should
address such argument or evidence in the remand initial decision. See Spithaler
v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (explaining that
an initial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
The administrative judge should reevaluate the appellant’s affirmative defenses
on remand .
¶20 New argument or evidence on remand on the issue of the appellant’s
pre-PIP performance and/or failure to accommodate claim may affect the
administrative judge’s analysis of the appellant’s other affirmative defenses .
ID at 10 -15; see Spithaler , 1 M.S.P.R. at 589. Regarding the appellant’s
retaliation claims, the administrative judge should identify the specific EEO
activity or other protected activity alleged by the appellant and evaluate the
claims under the different standards of proof applicable to such claims consistent
with our recent decision in Pridgen v. Office of Management and Budget ,
2022 MSPB 31 . We note that the administrative judge should also consider the
appellant’s assertion in his petition for review regarding an email messag e he sent
13
to his supervisor approximately 1 -1/2 months prior to being placed on a PIP in
evaluating this defense . PFR File, Tab 1 at 7.
¶21 Regarding the appellant’s age-based disparate impact claim,3 we agree with
the administrative judge that the appellant ’s claim fails because he has present ed
insufficient statistical evidence to conclude that the return rate metric disparately
impacted workers over the age of 40. ID at 14 -15; see Warner v. Departm ent of
the Interior , 115 M.S.P.R. 281 , ¶ 8 (2010) (setting forth the elements of a prima
facie case of a disparate impact violation of the ADEA ). The administrative
judge may incorporate this finding , which is unlikely to be affected by new
evidence and argument on remand,4 in the new remand decision . ID at 14 -15.
ORDER
¶22 For the reasons discussed above, we REMAND this case to the W ashington
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
3 The appellant does not challenge the administrative judge’s finding that he failed to
present argument or evidence supporting age-based discrimination under other theories .
ID at 11; PFR File, Tab 1 at 5 -9. We agree with the administrative judge’s findings.
The administrative judge may incorporate these findings in the new remand decision if
they are unaffected by new evidence and argument on remand.
4 The record will be open for evidence and argument on the issues of the appellant’s
pre-PIP performance and failure to accommodate claim. | MCCULLIN_DAVID_E_DC_0432_17_0588_I_1_REMAND_ORDER_2054144.pdf | 2023-07-27 | null | DC-0432 | NP |
2,844 | https://www.mspb.gov/decisions/nonprecedential/SMITH_SHELLY_S_SF_1221_12_0349_W_6_FINAL_ORDER_2054150.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHELLY S. SMITH,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-1221 -12-0349 -W-6
DATE: July 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shelly S. Smith , Monterey, California, pro se.
Michael L. Halperin , Esquire, Monterey, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petitio n for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
appeal . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneo us 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 petitioner’s du e
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this a ppeal, we conclude that 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 ARGUME NTS ON REVIEW
¶2 The appellant was employed as a n Assistant Professor in the Hebrew
Department of the Defense Language Institute Foreign Language Center. Smith v.
Department of the Army , MSPB Docket No. SF-1221 -12-0349 -W-4, Appeal File
(W-4 AF), Tab 18 at 14 . In June 2008 , she filed a complaint with the Office of
Special Counsel (OSC) alleging reprisal for whistleblowing. Smith v. Department
of the Army , MSPB Docket No. SF-1221 -12-0349 -W-1, Initial Appeal File (W-1
IAF), Tab 1 at 7-31. The appellant alleged in her OSC complaint that the agency
took a series of personnel actions against her in reprisal for disclosures she made
beginning in 2007. The appellant later amended her complaint and filed a second
OSC complaint to allege additional acts of whistleblower reprisal. Smith v.
Department of the Army , MSPB Docket No. SF-1221 -12-0349 -W-2, Appeal File
(W-2 AF) , Tab 4. OSC closed its investigation into the appellant’s complaints in
January 2012, and the appellant timely filed t his IRA appeal in March 2012. W-1
IAF, Tab 1.
¶3 After holding a videoconference hearing o ver the course of 6 days in
May 2017, the administrative judge issued an initial decision denying the
3
appellant’s request for corrective action. Smith v. Department of the Army ,
MSPB Docket No. SF-1221 -12-0349 -W-6, Appeal File (W-6 AF), Tab 55 , Initial
Decision (ID) .2 The administrative judge found that the a ppellant proved that she
made a protected disclosure that was a contributing factor in some of the alleged
retaliatory personnel actions, but that the agency proved by clear and convincing
evidence that it would have taken those actions in the absence of t he appellant’s
disclosures. Id.
¶4 On petition for review, the appellant raises both procedural and substantive
objections to the administrative judge’s handling of her appeal. Procedurally, she
argues that the administrative judge erred in failing to delay the hearing for an
additional 6 months , denying several of the appellant’s requested witnesses, and
limiting the duration of the appellant’s own testimony during the hearing.
Petition for Review (PFR) File, T ab 5 at 3 -4, 8-10, 12 -14. She also accuses th e
agency of obstructing justice by failing to provide certain evidence to OSC. Id.
at 5. Substantively, the appellant argues that the administrative judge erred in her
credibility determinations and ignored evidence favorable to the appellant. Id.
at 5-12. She also challenges, among other things, the administrative judge’s
findings that she failed to exhaust one of her claims before OSC and that some of
her alleged disclosures were not protected. Id. at 10 -47. The appellant also
accuses the adminis trative judge of pro -agency bias. Id. at 4, 10, 42 -43. The
agency has responded in opposition to the petition for review, PFR File, Tab 7,
and the appellant has filed a reply , PFR File, Tab 10 .
¶5 The appellant’s principal argument on review is that the adm inistrative
judge erred in failing to delay the hearing for an additional 6 months. She argues
2 The appeal was dismissed without prejudice a total of five times. In each case, the
administrative judge dismissed the appeal at least in part in response to the appellant’s
request for additional time to prepare for the hearing. W -1 IAF, Tab 23 -24; W-2 AF,
Tabs 12 -13; Smith v. Department of the Army , MSPB Docket No. SF -1221 -12-0349 -
W-3, Appeal File , Tab 6; W -4 AF, Tab 15; Smith v. Department of the Army , MSPB
Docket No. SF -1221 -12-0349 -W-5, Appea l File , Tab 14.
4
that the administrative judge’s decision not to delay the hearing denied her due
process and resulted in an evidentiary record that was not fully developed. PF R
File, Tab 5 at 3 -4. An administrative judge is authorized to postpone a hearing
upon a showing of good cause, 5 C.F.R. § 1201.51 (c), and the Board reviews an
administrative judge’s dec ision to deny a postponement request under an abuse of
discretion standard, see McCarthy v. International Boundary and Water
Commission , 116 M.S.P.R. 594, ¶¶ 22-23 (2011) , aff’d , 497 F. App’x 4 (Fed. Cir.
2012) . In denying the appellant’s postponem ent request, the administrative judge
noted that she had already dismissed the appeal without prejudice five times and
granted an additional postponement of more than a month. W -6 AF, Tab 46
at 1-2. We find no abuse of discretion in the administrative judge’s decision.
The appellant had more than 5 years from the time she first filed her appeal to
prepare for the hearing, and she has not established that she was entitled to an
additional 6 months.
¶6 The appellant also argues on review that the administrative judge abused
her discretion when she denied several of the appellant’s requested witnesses.
PFR File, Tab 5 at 8-10. An admin istrative judge has wide discretion to control
the proceedings, including the authority to exclude testimony she believes would
be irrelevant, immaterial, or unduly repetitious. Vaughn v. Department of the
Treasury , 119 M.S.P.R. 605 , ¶ 12 (2013); 5 C.F.R. § 1201.41 (b). The Board has
held that in order to obtain re versal of an initial decision on the ground that the
administrative judge abused her discretion in excluding evidence, the petitioning
party must show on review that relevant evidence, which could have affected the
outcome, was disallowed. Vaughn , 119 M.S.P.R. 605 , ¶ 12. The a ppellant
initially requested to call 31 witnesses , W-6 AF, Tab 27 at 42 -49. During the
prehearing conference, the appellant withdrew one of her requested witnesses.
W-6 AF, Tab 39 at 4. The administrative judge approved 13 of the appellant’s 30
remaining witnesses and identified 3 others as potential rebuttal witnesses . Id.
The appellant’s vague assertions on review that the administrative judge erred in
5
disallowing additional witnesses do not show that their testimony would have
been relevant, material, not repetitious, or that they could have affected the
outcome.3
¶7 The appella nt accuses the agency of obstructing justice by withholding
documents from OSC. PFR File, Tab 5 at 5. However, the appellant herself
acknowledges that the agency provided the documents in question to OSC in
April 2011, id., almost a year before OSC close d its investigation and
approximately 6 years before the close of the record before the administrative
judge. Thus, even if the appellant is correct that the agency failed to timely
produce the documents to OSC, she has not shown why that warrants a diffe rent
outcome in this appeal.
¶8 The appellant argues that the administrative judge erred in her credibility
determinations. PFR File, Tab 5 at 7, 10 -12, 28 -29, 31 -32, 35, 36, 43, 44 . When
an administrative judge has held a hearing and has made credibility
determinations that were explicitly or implicitly based on the witness’s demeanor
while testifying, the Board must defer to those credibility determinations and may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1372 -73
(Fed. Cir. 2016); Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir.
2002). Here, the administrative judge appropriately relied on the factors set forth
in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987), to ass ess the
credibility of numerous witnesses as to various disputed factual matters . ID at 9,
13, 16, 27, 28, 30, 31, 33 -34, 37, 39, 42 -43, 45 , 48, 49, 54 , 55, 61 -62, 68 . Given
the administrative judge’s demeanor -based findings, we find that the appellant
has failed to provide a “sufficiently sound” reason to disturb these conclusions.
3 Given the administrative judge’s wide discretion to control the proceedings, w e also
find no abuse of discretion in the administrative judge’s decision to limit the appellant’s
direct testimony to 4 hours.
6
¶9 In addition to challenging the administrative judge’s credibility
determinations, t he appellant argu es more generally that the administrative judge
“ignored” or gave insufficient weight to relevant evidence and arrived at the
wrong conclusions. PFR File, Tab 5 at 8-12, 14, 43 . W e find that her arguments
amount to nothing more than a disagreement with the administrative judge’s
conclusions, and we find no basis to disturb these findings, see, e.g., Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb
the administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
¶10 The administrative judge found that the Board lacked authority to consider
one of the appellant’s alleged protected disclosures because the appellant failed to
establish that she raised that disclosure before OSC. ID at 4 -5. The appellant
challenges that fin ding on review and cites emails in support of her assertion that
she exhausted the disclosure in question. PFR File, Tab 5 at 5 -6, 48 -51.
However, none of the emails cited by the appellant actually discuss the disclosure
at issue, and therefore we find t hat the appellant has not established that she
exhausted that disclosure before OSC.
¶11 The appellant also accuses the administrative judge of pro -agency bias in
her procedural and evidentiary rulings . PFR File, Tab 5 at 4, 10, 42 -43. In
making a claim of b ias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep -seated favoritism or antagonism that would
make fair judgment impossible. ” Bieber v. Department of the Army , 287 F.3d
1358 , 1362 -63 (Fed. Cir. 20 02) (quoting Liteky v. United States , 510 U.S. 540 ,
555 (1994)). The appellant’s arguments on review, which d o not relate to any
7
extrajudicial c onduct by the administrative judge, neither overcome the
presumption of honesty and integrity that accompanies an administrative judge
nor establish that she showed a deep -seated favoritism or antagonism that would
make fair judgment impossible. See Scogg ins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 19 (2016).
¶12 We have considered the appellant’s other arguments on review, but we
conclude that a different outcome is not warranted. 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 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
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informat ion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pr actice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC rev iew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
9
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action inv olves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your repre sentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office 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:
10
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other 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.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision tha t provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to f ile petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive t o November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | SMITH_SHELLY_S_SF_1221_12_0349_W_6_FINAL_ORDER_2054150.pdf | 2023-07-27 | null | SF-1221 | NP |
2,845 | https://www.mspb.gov/decisions/nonprecedential/HOANG_ANDY_DC_844E_20_0727_I_1_FINAL_ORDER_2053516.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDY HOANG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-844E -20-0727 -I-1
DATE: July 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andy Hoang , Raleigh , North Carolina , pro se .
Jo Bell , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its denial of the appellant ’s application for
disability retirement under the Federal Employees ’ Retirement System (FERS)
and awarded him benefits . Generally, we grant petitions such as this one only in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 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 j udge ’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal a rgument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 MODIFI ED to
find that the appellant m et criterion (1) for determining eligibility for disability
retirement benefits under FERS , we AFFIRM the initial decision.
BACKGROUND
¶2 Effective August 27, 2018, the appellant was terminated from his position
as a CG-11 Risk Examiner with the Federal Deposit Insurance Corporation
(FDIC) for unacceptable performance . Initial Appeal File (IAF), Tab 10 at 26.
On February 7, 2019, he applied for FERS disability retirement benefits . Id.
at 37-50. In his statement of disability, the appellant asserted that he suffered
“from multiple medical disabilities ” including , but not limited to , post-traumatic
stress disorder (PTSD ), severe anxiety , major depressive disorder with suicidal
ideations , chronic fatigue s yndrome , chronic hepatitis B , noted brain lesions ,
concentration deficits , and meningioma . Id. at 43. The appellant asserted that
these medical conditions prevented him from “perform ing the highly demanding
job of a Risk Examiner .” Id. He further alleged that his medical condition s
“debilitate [] [him] and make [] [him] non -functional” and various methods of
treatment were ineffective. Id. OPM issued an initial decision denying the
3
appellant ’s application for FERS disability retirement bene fits after finding that
he did not meet all the criteria for disability retirement, and the appellant
requested reconsideration. Id. at 12-21. He submitted additional documentation,
but OPM issued a reconsideration decision sustaining its initial decisio n. Id.
at 5-9.
¶3 The appellant filed an appeal with the Board challenging OPM ’s final
decision and requesting a hearing. IAF, Tab 1 at 2, 4. Following a telephonic
hearing, the administrative judge issued an initial decision reversing OPM ’s
reconsideration decision and ordering it to grant the appellant ’s application for
disability retirement . IAF, Tab 2 0, Initial Decision (ID) at 1, 9-10. The
administrative judge determined that the appellant established that he became
disabled while emplo yed at FDIC . ID at 4-6. The administrative judge also
found that the appellant’s medical conditions prevented him from being in
attendance at work and impacted his ability to perform the duties of his position .
ID at 6-8. The administrative judge then found that the appellant established that
his disabling medical condition was expected to continue for at least 1 year from
the date the application for disability retirement was filed . ID at 8 -9. The
administrative judge further found that accommodation of the appellant is
unreasonable and that he did not decline an offer of reassignment to a vacant
position. ID at 9.
¶4 OPM has filed a petition for review to which the appellant has responded.
Petition for Review (PFR) File, Tab s 1, 3.
DISCUSSION OF ARGUM ENTS ON REVIEW
¶5 In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Christopherson v. Office of Personnel Management , 119 M.S.P.R. 635 , ¶ 6
(2013); 5 C.F.R. § 1201.56 (b)(2)(ii). To be eligible for a disability retirement
annuity under FERS, an appellant must establish the following elements: (1) he
4
completed at least 18 months of creditable civilian service; (2) while employed in
a position subject to FERS, he became disabled beca use of a medical condition,
resulting in a deficiency in performance, conduct, or attendance, or, if there is no
such deficiency, the disabling medical condition is incompatible with either
useful and efficient service or retention in the position; (3) the disabling
condition is expected to continue for at least 1 year from the date that the
application for disability retirement benefits was filed; (4) accommodation of the
disabling medical condition in the position held must be unreasonable; and (5) he
did not decline a reasonable offer of reassignment to a vacant position.
Christopherson , 119 M.S.P.R. 635 , ¶ 6; 5 C.F.R. § 844.103 (a).
¶6 As to criterion (1) for establishing entitlement to a FERS disability
retirement annuity, t he administrative judge acknowledged the appellant ’s
testimony that he began Federal se rvice with the FDIC in 2012 before resigning
in 2017; however , the administrative judge made no explicit finding as to whether
the appellant had 18 months of creditable civilian service . ID at 5. Therefore, we
do so here. The appellant ’s individual reti rement record supports his testimony
that he had 5 years of creditable civilian service between August 2012 and
September 2017. IAF, Tab 10 at 51. Thus, we find the appellant has proven he
had the requisite creditable service. Regarding criteria (4) and (5), t he
administrative judge determined that accommodation of the appellant ’s disabling
medical condition in his position wa s unreasonable and that the appellant did not
decline an offer of reassignment to a vacant position . ID at 9. Moreover, OPM
concedes on review that the appellant established criteria (1), (4), and (5) for
establishing entitlement to FERS disability retirement benefits . PFR F ile, Tab 1
at 6.
¶7 Rather , OPM challenges the administrative judge ’s findings that the
appellant establi shed criteria ( 2) and (3) by preponderant evidence . Id. at 7-9.
The a dministrative judge found that the appellant “established that he became
disabled due to PTSD, Depression, and Hepatitis B while employed at FDIC ,”
5
that his medical condition s prevented him from performing the duties of his
position, an d that his medical condition was expected to continue for at least
1 year after he filed his disability retirement application . ID at 4 -9. As set forth
below, w e agree with the administrative judge ’s findings .
The appellant met criterion (2) because he proved by preponderant evidence that
his medical condition resulted in a deficiency in performance .
¶8 OPM appears to argue that the appellant failed to prove by preponderant
evidence that his medical condi tions caused a service deficiency as to his
attendance. PFR File, Tab 1 at 7. However, that is not the only way to establish
the second criterion for establishing entitlement to disability retirement unde r
FERS . An appellant may meet the statutory requi rement that he “be unable,
because of disease or injury, to render useful and efficient service in the
employee’s position” by showing that the medical condition caused a deficiency
in performance, attendance, or conduct, as evidenced by the effect of his medical
condition on his ability to perform specific work requirements, or that his medical
condition prevented him from being regular in attendance or caused him to act
inappropriately. Christopherson , 119 M.S.P.R. 635 , ¶ 6 (2013) . The
administrative judge determined that the appellant met this requirement because
“his PTSD a nd depression prevented him from being in attendance at work and
prevented him from performing the duties of his position. ” ID at 6 . As set forth
below , we agree with the administrative judge that the appellant ’s medical
condition s resulted in a deficien cy in his performance as a Risk Examiner .
¶9 The appellant ’s position required him to perform complex, detail -oriented
tasks , as noted by the administrative judge, including writing comments for
reports , conducting examination s as part of a team , and communicating with bank
management during the examination s. ID at 6 -7. The appellant explained that , in
April 2018, he began experienc ing symptoms associated with his PTSD, including
panic attacks, nightmares, paranoia , suicidal ideations, and anxiety which
impacted his ability to perform his duties . IAF, Tab 19, Hearing Recording (HR)
6
(testimony of the appellant) . He further asserted that he is still being treated for
his PTSD and depression at the Department of Veterans Affairs (VA) . Id. The
administrative judge found the appellant ’s testimony credible and supported by
the evidence in the record . ID at 6. It is well established that subjective
evidence, i.e., testimony or written statements regarding symptoms that is
submitted by the applica nt, “may be entitled to great weight on the matter of
disability, especially where such evidence is uncontradicted by the record.”
Henderson v. Office of Personnel Management , 117 M.S.P.R. 313 , ¶ 23 (2012)
(quoting Chavez v. Office of Personnel Management , 6 M.S.P.R. 40 4, 422
(1981) ).
¶10 The objective medical evidence shows the appellant has been under the care
of several medical professionals for various medical conditions, including PTSD
and depression, and corroborates his claim that he could not perform his duties as
a Risk Examiner due to his medical conditions . IAF, Tab 10 at 59-73; HR
(testimony of the appellant) . N.L., a Licensed Clinical Social Worker , treated the
appellant for PTSD and depression f rom September 2018 to February 2020. HR
(testimony of N.L. ). She testified that he presented with “very severe symptoms ”
on his initial depression screener including, inter alia, impaired focus and
concentration , fatigue , daily suicidal thoughts , nightma res from his time in the
Army , paranoia , and panic attacks . Id. She also found that he was not
employable the entire time he was under her care due to the severity of his
symptoms . Id. In addition, as noted by the administrative judge, the appellant
submitted a November 6, 2018 letter by N.L. stating that that “[e]ven with intense
psychotherapy and medication therapy [the appellant] will likely experience
mental health symptoms that will impede on his cognitive ability for many years .”
ID at 7; IAF, Tab 10 at 59. The administrative judge also considered a
February 25, 2019 letter from D.L. , a Psychiat ric Nurse Practitioner, who
continues to treat the appellant for PTSD and depression after he started treatment
in December 2018. ID at 7; IAF, Tab 10 at 73. In the letter, D.L. asserted that
7
“[the appellant ’s] anxiety and depression were having a significant, negative
impact on his daily function, sleep, drive, motivation and memory. He was
struggling to engage in routine tasks and activities with planning and
organization, which was creating basic problems for him regarding completion of
tasks. ” IAF, Tab 10 at 73. D.L. further stated in his February 2019 letter that
“[the appellant ’s] symptoms began to show some improvement in early January,
but he continued to struggle with maintaining regular and purposeful routines.
With ongoing treatment his symptoms have slowly begin to improve.” Id.
¶11 OPM argues on review that the administrati ve judge improperly weighed
the o bjective medical evidence cited above . PFR File, Tab 1 at 7. Specifically,
OPM alleges that N.L.’s November 6, 2018 letter is contradictory to D.L.’s
February 25, 2019 letter and that the administrative judge erred in ass igning more
probative weight to N.L.’s letter. Id. at 7-8. We disagree. In reaching h is
conclusion, the administrative judge properly weighed the m edical evidence. ID
at 4-8; see Brown v. Department of the Interior , 121 M.S.P.R. 205 , ¶ 11 (2014)
(recognizing that, in assessing the probative weight of medical opinions, the
Board considers whether th e opinion was based on a medical examination and
provided a reasoned explanation for its findings as distinct from mere conclusory
assertions, the qualifications of the expert rendering the opinion, and the extent
and duration of the expert ’s familiarity w ith the treatment of the appellant ),
overruled on other grounds by Haas v. Department of Homeland Security ,
2022 MSPB 36 . Although D.L.’s letter indicates that the appellant’s symptoms
have slowly improved, it is not incongruous with the testimony or medical
opinion of N.L. Contrary to OPM’s assertion, D.L.’s letter is not inconsistent
with N.L.’s testimony and statements because, as s et forth above, D.L. explains
that the appellant’s PTSD and depression negatively impacted his ability to
function. IAF, Tab 10 at 73. The administrative judge considered and cited the
medical evidence provided by both providers in finding that the appel lant’s
disability impacted his ability to work. ID at 7. He also found the objective
8
medical evidence was consistent with the subjective medical evidence and the
testimony before him; therefore, we are not persuaded by OPM’s challenge to the
administrati ve judge’s consideration of the relevant medical evidence.2 See
Henderson , 117 M.S.P.R. 313 , ¶ 19 (explaining that the Board consider s all
pertinent evidence in determining an appellant ’s entitlement to disability
retirement ).
¶12 In addition, the appellant’s supervisor indicated on his writte n statement in
connection with the appellant’s application for disability retirement that “[the
appellant] was terminated from FDIC employment due to unacceptable job
performance.” IAF, Tab 10 at 49 -50. The appellant also testified that he was
placed on a performance improvement plan shortly before his termination because
his leadership at FDIC found “[his] work was not focused, [he] don’t [sic] have
any concentration, [his] work was all over the place, [his] write up was all over
the place.” IAF, Tab 10 at 26 -28; HR (testimony of the appellant) . These
contentions are supported by the a ppellant’s letter of termination which states in
relevant part that he has “been provided frequent feedback and counseling on
[his] performance and work products , . . . issued multiple [d]evelopmental
[f]eedback [f]orms which detailed [his] unacceptable wo rk and provi ded
suggestions for improvement. Despite this feedback and counseling, [his]
performance has not improved .” IAF, Tab 10 at 26. Viewing this evidence along
2 In determining that the appellant established entitlement to disability retirement
benefits , the administrative judge considered that the VA rated the appellant 100%
disabled and found that he is entitled to “individual unemployability” because he is
“unable to secure or follow a substantially gainful oc cupation as a result of
service -connected di sabilities .” ID at 5; IAF, Tab 12 at 14. While the award of VA
disability benefits does not necessarily mandate that an applicant be granted a FERS
disability retirement annuity, the Board must consider an award of such benefits when
determining whether an appellant qualifies for a disability annuity under FERS .
Sachs v. Office of Personnel Management , 99 M.S.P.R. 521 , ¶¶ 10 –12 (2005) . Here, th e
medical evidence in the record corroborates the conclusion of the VA; therefore , we
find the administrative judge appropriately considered the VA’s disability rating and
benefits determination .
9
with the appellant’s objective medical evidence , the appellant ’s testimony that his
medical condition s prevented from performing his job duties is of considerable
evidentiary value. See Newkirk v. Office of Personnel Management , 101 M.S.P.R.
667, ¶ 16 (2006) . Thus, we agree with the administrative judge that he proved by
preponderant evidence that his medical conditions prevented him from
performing the duties of the Risk Examiner position. ID at 7 -8.
The administrative judge properly found the appellant ’s disabling medical
condition is expected to continue for at least 1 year from the date he filed his
application for disability retirement.
¶13 The administrative judge also found that his disabling medical con dition
lasted for more than 1 year after he filed his disability retirement application in
February 2019, based partl y on N.L.’s testimony that the appellant was
unemployable in any capacity until February 2020. ID at 8; HR (testimony of
N.L. ). OPM argues that the medical opinion of N.L. establish es the appellant ’s
symptoms were reportedly improving ; therefore , his medical condition did not
last for 1 year after he submitted his disability application . PFR File, Tab 1 at 9.
We disagree. As noted above, the medical evidence consistently indicates that
the appellant ’s PTSD and depression impaired his cognitive ability and impacted
his ability to function , precluding him from performing his duties as assigned. ID
at 4, 7; IAF, Tab 10 at 59 -67, 72-73. Moreover, both objective and subjective
medical evidence indicate that the appellant suffer ed from PTSD and depression
and was still receiv ing treat ment for his medical conditions until at least February
2020 . IAF, Tab 10 at 59-67, 72 -73; HR (testimony of the appellant and N.L. ).
We have considered OPM ’s arguments on review concerning the administrative
judge ’s weighing of the evidence, but , as explained above, we discer n no reason
to reweigh the evidence or substitute our assessment of the record evidence for
that of the administrative judge. As such, we agree with the administrative judge
that the appellant met his burden by preponderant evidence that his condition was
expected to last 1 year after he filed his disa bility retirement applic ation.
10
¶14 After considering all evidence in the record, we agree with the
administrative judge ’s finding that the appellant established entitlement to
disability retirement under FERS. Accordingly, we conclude that OPM has
provided no basis for disturbing th e initial decision .
ORDER
¶15 We ORDER OPM to approve the appellant’s application for disability
retirement . OPM must complete this action no later than 20 days after the date of
this Order .
¶16 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board ’s Order and of the actions it has taken
to carry out the Board ’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board ’s Order. The appellant,
if not not ified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
¶17 No later than 30 days after OPM tells the appellant it has fully carried out
the Board ’s Order, the appellant may f ile a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board ’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board ’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT 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
11
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
The initial decision, as supplemented by this Final Orde r, 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 sta tement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and require ments. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If y ou have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board o rder 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 ri ghts included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court ’s website, www.cafc.uscourts.gov. Of particular
relevance is the court ’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
13
with the distric t court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which c an be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commissi on (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC ’s Office of Federal Operations within 30 calendar day s after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M St reet, N.E.
Suite 5SW12G
Washington, D.C. 20507
14
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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.4 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.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appe als of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower repris al cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
If you 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.
Contact information for the courts of appeals can be 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 | HOANG_ANDY_DC_844E_20_0727_I_1_FINAL_ORDER_2053516.pdf | 2023-07-26 | null | DC-844E | NP |
2,846 | https://www.mspb.gov/decisions/nonprecedential/KARPEN_NANCY_ANN_CH_1221_16_0403_W_1_REMAND_ORDER_2053549.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NANCY ANN KARPEN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -16-0403 -W-1
DATE: July 26, 2023
THIS ORDER IS NONPRECEDENTIAL1
Michael L. Vogelsang, Jr. , Esquire, Washington, D.C., for the appellant.
Robert Vega , Esquire, Hines, Illinois, 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
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
VACATE the initial decision, and REMAND the case to the Central Regional
Office for further adj udication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is employed by the agency’s Veterans Health Administration
(VHA) as a Registered Nurse, and work s in the Outpatient Special ty Clinic at the
VHA’s Jesse Brown Veterans Affairs Medic al Center (JBVAMC) in
Chicago, Illinois. Initial Appeal File (IAF), Tab 1 at 1, Tab 10 at 104.
She alleges that on September 30, 2013, her first-level supervisor assigned her to
provide a medical assistant (MA) student with clinical experience “as a favor to
the Director’s Office.” IAF, Tab 11 at 69. According to the appellant, she
learned from a coworker that the MA student “was not authorized for clinical
time . . . because the school he had gone to did not have a training relationship”
with the a gency. IAF, Tab 1 at 29. Therefore, on October 16, 201 3, she asked
the Associate Chief Nurse for Outpatient Services about the arrangement.
IAF, Tab 1 at 27 , Tab 11 at 69. The appellant’s first-level supervisor learned
about the appellant’s inquiry to the Associate Chief Nurse, and confronted the
appellant about it later the same day . IAF, Tab 11 at 69 .
¶3 The appellant alleges that 1 day later, her first-level supervisor held an
unannounced meeting with her and an agency human resources (HR) official.
IAF, Tab 1 at 5 . During that meeting, the appellant claims the HR official
withdrew a job offer for a lateral assignment to the position of Neurology Nurse
Case Manager , for which the appellant had previously been selected. IAF, Tab 1
at 5, 11; Petitio n for Review (PFR) File, Tab 1 at 6 -7.2 The agency cancel led the
2 The appellant submits copies of documents on review which are not in the record
below, PFR File, Tab 1 at 6 -8, 10, and that are in the recor d below, PFR File, Tab 1
at 9, Tab 4 at 8 -10; IAF, Tab 11 at 7 -9, 69. The issue of Board jurisdiction may be
raised at any time during a Board proceeding . Pirkkala v. Department of Justice ,
123 M.S.P.R . 288 , ¶ 5 (2016). Therefore, we have considered all of the appellant’s
submissions to the extent that they are relevant to the jurisdictional issue. See Ney v.
Department of Commerce , 115 M.S.P.R. 204 , ¶ 7 (2010).
3
assignment, which would have been effective October 20, 2013. IAF, Tab 1 at 7,
Tab 10 at 20. Following an investigation, i n January 2016, the agency issued a
letter of counseling to the appellant’s first-level supervisor for her role in
permitting the student, who lacked an affiliation agreement with the agency, to
“participate in patient care. ” IAF, Tab 10 at 12 , Tab 11 at 7-18.
¶4 The appellant filed a complaint with the Office of Special Counsel (OSC) .
IAF, Tab 1 at 4, 22 . She alleg ed to OSC that , in retaliation for her October 2013
disclosure and her filing of an equal employment opportunity (EEO) complaint,
the agency res cinded her reassignment and took other actions against her . IAF,
Tab 1 at 11. OSC closed its inquiry into her complaint on March 30, 2016, and
advised her that she may have a right to seek corrective action from the Board.
Id. at 11 -12.
¶5 The appellant fi led a timely IRA appeal and provided a copy of her OSC
complaint, OSC’s closeout letter, and the Standard Form 50 reflecting the
cancel lation of her reassignment. IAF, Tab 1 at 7-35. The administrative judge
notified the appellant of her burden to establ ish jurisdiction over her IRA appeal
and order ed her to submit argument and evidence on the jurisdictional issue .
IAF, Tab 2 at 2-3. The appellant did not respond, and the agency filed a motion
to dismiss. IAF, Tab 6.
¶6 The administrative judge issued an initial decision dismiss ing the appeal for
lack of jurisdiction without holding the appellant’s requested hearing. IAF, Tab 1
at 2, Tab 13, Initial Decision (ID) at 1 -2, 9-10. She found that the appellant
exhausted with OSC her claim that, on O ctober 21, 2013, she reported an
unauthorized medical assistant student to the Associate Chief Nurse . ID at 4-6.
The administrative judge concluded that, while the appellant referenced in her
Board appeal other dates, such as October 16, 2013, as the dat e of her disclosure,
she had not exhausted those disclosures with OSC. ID at 4 n.3.
The administrative judge further found that the appellant made a nonfrivolous
allegation that her October 21, 2016 disclosure was protected . ID at 5 -6.
4
In addition, she found that the only personnel action the appellant alleged with
specificity was the cancellation of her reassignment , which was effective
October 20, 2013 . ID at 6 -7; IAF, Tab 10 at 21. The administrative judge found
that the appellant failed to nonfriv olously allege that her protected disclosure was
a contributing factor in the cancellation because the alleged personnel action
occurred before, not after, the disclosure. ID at 6 -7. Additionally, the
administrative judge found that the appellant’s EEO c omplaint did not constitute
protected activity that may serve as the basis for an IRA appeal. ID at 7 -9.
¶7 The appellant has filed a petition for review of the initial decision. PFR
File, Tab 1. The agency has submitted a response in opposition, to which the
appellant has replied. PFR File, Tabs 3 -5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 On review, the appellant argues that the administrative judge erred in
identifying October 21, 2013, rather than October 16, 2013, as the date of her
disclosure.3 PFR File, Tab 1 at 2-3. She asserts that she provided OSC with a
copy of a n agency Report of Contact (ROC) form that she completed, in which
she identified October 16, 2013, as the relevant disclosure date. IAF, Tab 11
at 69-70; PFR File, Tab 1 at 3, 9.4 The appellant further alleges that, had the
administrative judge relied on the earlier date, she would have found that the
3 The parties do not dispute the administrative judge’s determination that Board lacks
jurisdiction over the appellant’s EEO activity in this IRA appeal. We discern no b asis
to disturb that finding.
4 The appellant states that she included a copy of the ROC “with [her] complaint to
MSPB in November 2015.” PFR File, Tab 1 at 3. While she filed her Board appeal in
May 2016, she filed her OSC complaint in November 2015. IAF, Tab 1 at 30.
Thus, we assume for purposes of our jurisdictional determination that she is referring to
her November 2015 OSC complaint. See Skarada v. Department of Veterans Affairs ,
2022 MSPB 17 , ¶ 6 (recognizing that a ny do ubt or ambiguity as to whether an appellant
made nonfrivolous jurisdictional alleg ations should be resolved in favor of finding
jurisdiction ).
5
disclosure was a contributing factor in the cancellation of the appellant’s
reassignment on October 17, 2013. PFR File, Tab 1 at 4, Tab 4 at 3 -6.5
The appellant exhausted her October 16, 2013, disclosure with OSC.
¶9 If an appellant has exhausted h er administrative remedies before OSC, she
can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging
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 co ntributing 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)(2)(A). Chambers v. Department of Homeland Security ,
2022 MSPB 8 , ¶ 14. The substantive requirements of exhaustion are met when an
appellant has provided OSC with sufficient basis to pursue an investigation.
Id., ¶ 10 (citations omitted). The Board’s jurisdiction is limited to those issues
that previously have been raised wi th OSC. Id. (citation omitted). However, an
appellant may give a more detailed account of her whistleblowing activities
before the Board than she did to OSC. Id., ¶ 10 (citing Briley v. National
Archives and Records Administration , 236 F.3d 1373 , 1378 (Fed. Cir. 2001)). An
appellant may demonstrate exhaustion through her initial OSC complaint or
correspondence with OSC. Id., ¶ 11. In the alternative, exhaustion may be
proven through other sufficiently reliable evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in her Board appeal or an unrebutted certified s tatement to this effect on an
appellant’s initial appeal form. Id. & n.7 (citing, among other cases, Delgado v.
Merit Systems Protection Board , 880 F.3d 913 , 927 (7th Cir.) (explaining that
exhaustion may be demonstrated through “sufficiently reliable evidence . . . such
5 The appellant also contends that agency counsel’s participation in this matter is
improper and that he should recuse himself. PFR File, Tab 4 at 5. She has offered no
argument or evidence tha t agency counsel has a conflict or engaged in any act justifying
a sanction.
6
as the OSC’ s response letters, an affidavit or declara tion attesting to the
complaint’ s substance [of the OSC complaint] , or a c opy of [the]. . . complaint” )),
as amended on denial of reh’g and reh’g en banc (7th Cir. 2018)).
¶10 In finding that the appellant did not exhaust her claim that she made a
protected disclosure on October 16, 2013, the administrative judge did not have
the benefit of the Board’s decision in Chambers , 2022 MSPB 8 , which was issued
after the initial decision in this case . Therefore, she relied on past case law
regarding this jurisdictional element in taking a narrower approach . ID at 4
(citations omitted) . We now find that the appellant sufficiently identified the
October 16, 2013 disclosure date to OSC to prove exhaustion under the standard
in Chambers .
¶11 Specifically , the appellant provided OSC with a sufficient basis to pursue
an investigation regarding her October 16, 2013 disclosure , as evidenced by both
the appellant’s OSC complaint and OSC’s closure letter. IAF, Tab 1 at 19, 27. In
her OSC complaint, the appellant described her disclosure as follows:
I reported the presence of an unauthorized medical assistant student I
was detailed to provide training for during the student’s clinical
rotation at JBVAMC from September 3 0, 2013 to October 16, 2013.
I reported this unauthorized person’s presence to . . . [the] Associate
Chief Nurse Outpatient Services via an email describing what
happened to . . . the unauthorized medical assistant student, and
myself on Wednesday, Octobe r 16, 2013 at 4:00 p.m. to 4:25 p.m. in
[her first-level supervisor’s ] office after [ her supervisor ] thought that
I had found out that [the student] was not authorized for clinicals at
JBVAMC.
Id. at 27. In a box next to this description of her disclosur e, the appellant
identified October 21, 2013, as the date of her disclosure. Id. However, as set
forth above , she identified October 16, 2013, as the date her supervisor learned of
her disclosure to the Associate Chief Nurse . Id.
¶12 Moreover, i n its March 30, 2016 closure letter, OSC stated that the
appellant “asserted that the actions taken against [her] since October 2013 were
retaliatory.” Id. at 19. OSC recognized the appellant’s allegation that her “job
7
offer as the Neurology Nurse Case M anager was rescinded one day after [she]
learned the MA student was not authorized to receive training at [her] facility and
after the Nurse Manager questioned why [she] contacted the Nurse Education
Coordinator about it.” Id. Accordingly, the record evi dence reflects that
the appellant proved that she exhausted her allegation regarding her
October 16, 2013, disclosure.
The appellant nonfrivolously allege d that her October 16, 2013 protected
disclosure was a contribut ing factor in the cancellation of her reassignment.
¶13 The administrative judge found that the appellant nonfrivolously allege d
that her disclosure regarding the medical student was protected. ID at 5 -6.
The parties do not dispute this finding, and we discern no basis to disturb it.
Section 2302(b)(8)(A) of Title 5 prohibits an agency from taking or failing to take
a personnel action against an employee because of a disclosure that she
“reasonably believes evidences . . . any violation of any law, rule, or regulation”
or any of the other categories of wrongdoing identified in that provision.
The administrative judge suggested that the appellant’s allegations were
insufficient to constitute a nonfrivolous allegation that the agency cancelled her
reassignment .6 ID at 7 . We disagree.
¶14 A reassignment is a personnel action. IAF, Tab 1 at 5, 7; see 5 U.S.C.
§ 2302 (a)(2)(A)(iv) (identifying a reassignment as a personnel action) . After the
initial decision was iss ued in this case, the U.S. Court of Appeals for the Federal
Circuit held in Hessami v. Merit Systems Protection Board , 979 F.3d 1362 ,
1368 -69 (Fed. Cir. 2020) , that the determination of whether an appellant has
nonfrivolously alleged that she made protected disclosures that contributed to a
personnel action must be based on whether she “alleged sufficient factual matter,
accepted as true, to stat e a claim that is plausible on its face.” See McCray v.
6 The parties do not dispute the administrative judge’s determination that the appellant
failed to nonfrivolously allege that the agency took other personnel actions against her.
ID at 7; PFR File, Tab 1 at 4. We decline to disturb this finding.
8
Department of the Army , 2023 MSPB 10 , ¶ 16 n.4 (summarizing this holding).
The Board is not permitted to “credit[] the agency’s interpretation of the
evidence” in making this determination. Hessami , 979 F.3d at 1369.
We recognize that the record contains evidence suggesting that the appellant
rejected the reassignment on Octob er 17, 2013. IAF, Tab 1 at 14; PFR File, Tab 1
at 6 -7. However, at this stage in the adjudication, we accept as true the
appellant’s allegation that the agency rescinded the job offer. IAF, Tab 1 at 3, 5,
11. Because such a rescission would be a failur e to take a personnel action, the
appellant has met her jurisdictional burden.
¶15 The administrative judge erred in determining that the appellant failed to
nonfrivolously allege that her disclosure was a contributing factor in her
cancelled reassignment. ID at 6 -7. To satisfy the contributing factor criterion at
the jurisdictional sta ge, an appellant need only raise a nonfrivolous allegation that
the fact o f, or conte nt of, the protected disclosure was one factor that tended to
affect the personnel action in any way. Salerno v. Department of the Interior ,
123 M.S.P.R. 230 , ¶ 13 (2016). One way to establish this criterion is the
knowledge /timing test, under which an appellant may nonfrivolously allege that
the disclosure or activity was a contributing factor in a personnel action through
circumstantial evidence, such as eviden ce 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 t he personnel action. Id. Here
the appellant alleged that her first-level supervisor confronted her about the
disclosure on October 16, 2013, and that her reassignment was rescinded the
following day during an “unannounced meeting” with her the same super visor and
an employee from Human Resources. IAF, Tab 1 at 5, 27. Thus, we find that the
appellant nonfrivolously alleged through the knowledge/timing test that her
disclosure was a contributing factor in the cancellation of her reassignment.
9
¶16 If an appe llant 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; 5 C.F.R. § 1201.57 (c)(4). We find
that the appellant has established jurisdiction and therefore is entitled to her
requested hearing .7 IAF, Tab 1 at 2.
ORDER
¶17 For the reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.8
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
7 The appellant also filed two motions requesting the Board to accept new evidence
supporting her claim that the agency cancelled her reassignment on October 17, 2013.
PFR File, Tabs 6, 8. We deny her motions, as the administrative judge properly
determined that the appellant nonfrivolously alleged that the agency cancelled her
reassignment on October 17, 2013, and additional information on this alleged personnel
action would not change the outcome of the petition for review. The appellant may
wish to submit this evidence below during the adjudication of her appeal on the merits ,
as permitted by the administrative judge.
8 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order. | KARPEN_NANCY_ANN_CH_1221_16_0403_W_1_REMAND_ORDER_2053549.pdf | 2023-07-26 | null | CH-1221 | NP |
2,847 | https://www.mspb.gov/decisions/nonprecedential/WANG_JACK_C_DC_315H_18_0660_I_1_FINAL_ORDER_2053563.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACK C. WANG,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-315H -18-0660 -I-1
DATE: July 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jack C. Wang , Gaithersburg, Maryland, pro se.
James Read , Washington, D.C., for the agency.
Patrick D. Dyson , Esquire, Orange, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 This case is before the Board on the appellant’s petition for review of the
initial decision that dismissed the appeal of his termination for lack of
jurisdiction. For the reasons set forth below, we REVERSE the initial decision,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
find that the Board does have jurisdiction over this appeal, and REVERSE the
agency’s action, retroactively restoring the appellant to his position.
BACKGROUND
¶2 On September 18, 2016, the appellant was appointed to the excepted service
position of Immigration Analyst (IA), GS -9, in the Asylum Division of the
agency’s U.S. Citizenship and Immigration Services (USCIS). The appointment
was intended to continue for 2 years. Initial Appeal File (IAF), Tab 26; Tab 9
at 70. While so employed, he applied for another position within USCIS and was
selected, resulting in his reassignment on August 20, 2017, to the excepted
service position of Supervisory CIS Assistant (SCISA), GS -9. This position was
also intended to continue for 2 years. IAF, Tab 9 at 69. Three months later, the
appellan t applied for another position and was again selected, resulting in his
conversion on November 26, 2017, to a career -conditional competitive service
position, Program Analyst (PA), GS -11, in the agency’s Office of Inspector
General (OIG).2 Id. at 68. On June 13, 2018, the Acting Counsel to the OIG
notified the appellant that he would be terminated during his probationary period,
effective that day, for failure to perform his duties in an acceptable manner,
specifically, for endeavoring to use his official position to secure, for personal
reasons, documents he was otherwise unable to obtain. Id. at 36, 35. The agency
informed the appellant that he had only limited Board appeal rights because of his
probationary status. Id. at 38.
¶3 On appeal, the appellant argued that he was not a probationary employee
when he was terminated because, prior to his appointment to the PA position, he
had already completed more than 1 year of current continuous service based on
his time in the GS -9 posit ions. IAF, Tab 1 at 6. On that basis, he argued, he was
2 The Standard Form 50 showing the appellant’s appointment to this position initially
indicated that he had completed a probationary period, IAF, Tab 9 at 68, but it was
subsequently corrected to show that the appointment was subject to the completion of a
1-year probationary period beginning November 26, 2017. Id. at 31.
3
entitled to the due process rights of an “employee” under 5 U.S.C.
§ 7511 (a)(1)(A). Id.; IAF, Tab 8 at 5 . The agency contended that the a ppellant
was not an “employee” because, immediately preceding his termination, he had
not completed 1 year of current continuous service in the competitive service
without a break in service of a workday, and that his prior service could not be
tacked onto his current service to meet the requirement of a 1 -year probationary
period because it was not in the same line of work. IAF, Tab 9 at 10.
Accordingly, the agency urged that the appeal be dismissed for lack of
jurisdiction because the appellant was a pr obationary employee when he was
terminated and failed to make a nonfrivolous allegation of discrimination based
on partisan politics or marital status. 5 C.F.R. § 315.806 (b); IAF, Tab 9 at 10 -12,
16; Tab 10.
¶4 In an order to show cause, the administrative judge advised the appellant of
how he could show that he was an “employee” entitled to appeal his removal to
the Board3 and if he was not, how he could also show that he had completed his
probationary period by tacking on prior service. IAF, Tab 13. In his response,
the appellant argued that his previous service in the GS -9 positions could be
tacked on to his service in the position from which he was terminated because
they were all in th e same line of work. IAF, Tab 14.
¶5 The administrative judge found it undisputed that, at the time of his
removal, the appellant had not completed 1 year of service in the competitive
service appointment from which he was terminated and that his prior two
appointments were to positions in the excepted service. IAF, Tab 18. Regarding
his claim that his prior service could be tacked on to meet the 1 -year requirement
for completion of his probationary period, the administrative judge found that he
3 In so doing, the adminis trative judge stated that the appellant was required to show
that, immediately preceding the adverse action, he had completed at least 1 year of
current continuous service in the competitive service without a break in service
(emphasis added). IAF, Tab 13 at 3.
4
had raise d a nonfrivolous allegation, sufficient to proceed to a jurisdictional
hearing. Id. The parties made additional submissions, IAF, Tabs 24-25, after
which the administrative judge determined that the issue to be resolved was
whether the appellant establis hed by preponderant evidence that his prior
excepted service positions were in the same line of work as the competitive
service position from which he was terminated. IAF, Tab 26.
¶6 The administrative judge issued an initial decision in which she dismissed
the appeal for lack of jurisdiction finding that the appellant was an individual in
the competitive service with less than 1 year of service at the time of his
termination. IAF, Tab 28, Initial Decision (ID) at 5. The administrative judge
further found t hat his previous service in the two excepted service positions could
not be tacked on to his service in his competitive service position so as to
complete the requirement of a 1 -year probationary period because the appellant’s
prior excepted service appoin tments were not in the same line of work as his
competitive service Program Analyst position. ID at 5 -13. Because the
administrative judge found that the appellant was serving a probationary period a t
the time of his termination, she determined that he could only appeal his
termination if he made a nonfrivolous allegation that the termination was based
on partisan political reasons or marital status, and that, because he did not allege
either of these reasons as grounds for his termination, the Board lacked
jurisdiction over the appeal. 5 C.F.R. § 315.806 (b); ID at 13 -14. Accordingly,
she dismissed the appeal on that basis. ID at 1 , 14.
¶7 The appellant has filed a petition for review , Petition for Review (PFR)
File, Tab 1, the agency has responded, PFR File, Tab 3, and the appellant has
replied. PFR File, Tab 4.
5
ANALYSIS
The appellant is an employee under 5 U.S.C. § 7511 (a)(1)(A)(ii).
¶8 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems P rotection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The appellant must
prove by preponderant evidence that the Board has jurisdiction over his appea l.
5 C.F.R. § 1201.56 (a)(2)(i). For the Board to have jurisdiction over an appeal
from a competitive service termination, the appellant must: (i) not be serving a
probationary or trial period under an initial appointment; or (ii) have completed
1 year of current continuous service under other than a temporary appointment
limited to 1 year or less. 5 U.S.C. §§ 7511 (a)(1)(A), 751 2(1), 7513(d). The U.S.
Court of Appeals for the Federal Circuit has held that an individual who is
excluded from “employee” status under 5 U.S.C. § 7511 (a)(1)(A)(i) is
nevertheless an “employee” if the individual meets the definition of “employee”
under 5 U.S.C. § 7511 (a)(1)(A)(ii). McCormick v. Department of the Air Force ,
307 F.3d 1339 , 1342 -43 (Fed. Cir. 2002). Accordingly, a competitive service
employee serving a probationary or trial period may appeal to the Board if he has
completed 1 year of current continuous service und er other than a temporary
appointment limited to 1 year or less.
¶9 Contrary to the agency’s argument below, the appellant’s two excepted
appointments were not temporary. A review of their Standard Forms 50 shows
that they were “conditional” in that they wer e subject to completion of a trial
period, and that neither had a not -to-exceed date. IAF, Tab 9 at 70, 69. The fact
that an appointment has a trial period does not make it a temporary appointment.
A temporary appointment, by its very nature, would not require a probationary or
trial period. See Johnson v. Department of Veterans Affairs , 99 M.S.P.R. 362 , ¶ 9
(2005) (observing th at an individual with a temporary appointment was not
required to serve a probationary or trial period).
6
¶10 As noted, under 5 U.S.C. § 7511 (a)(1)(A)(ii), a competitive service
employee serving a proba tionary or trial period may appeal to the Board if he has
completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. The Board has found that current
continuous service need not be in the same or sim ilar positions for an individual
in the competitive service to qualify as an “employee” under
section 7511(a)(1)(A)(ii). Claiborne v. Department of Veterans Affairs ,
118 M.S.P.R. 491 , ¶ 6 (2012). The Board has also found that, for competitive
service employees, “current continuous service” mean s a period of employment
or service immediately preceding an adverse action without a break in Federal
civilian employment of a workday. Id. In addition, the Board has interpreted that
phrase to include prior service in either the competitive or excepted service.4
Fitzgerald v. Department of the Air Force , 108 M.S.P.R. 620 , ¶ 10 (2008). There
is no evidence in the record that the appellant had any break in Federal civilian
employment of a workday between the date of his first excepted appointment on
September 18, 2016, and his termination on June 13, 2018. IAF, Tab 9 at 70, 69,
68, 35. He worked in the excepted service position of a GS -9 IA from
September 18, 2016, to August 19, 2017, and in the excepted service position of a
GS-9 SCISA from August 20, 2017, to November 25, 2017, and in the
competitive service as a GS -11 PA from November 26, 2017, until his termination
on June 13 , 2018. Thus, the appellant completed more than 1 year of current
continuous service under other than a temporary appointment limited to 1 year or
less immediately preceding his termination from his competitive service
4 To the extent the administrative judge stated or suggested that the appellant’s service
in the GS -9 positions could not, by virtue of their excepted service status, be considered
in determining whether he had completed 1 year of current continuous service, see, e.g. ,
IAF, Tab 13 at 3, Tab 18 at 3, Tab 26 at 2 -3, she erred. Fitzgerald v. Department of the
Air Force , 108 M.S. P.R. 620 , ¶ 10 (2008) . However, in view of our findings in this
decision, and the ultimate disposition, any such error did not prejudice the appellant’s
substantive rights. Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984).
7
appointment without a break in Feder al civilian employment of a workday, and he
therefore qualifies as an “employee” as defined by 5 U.S.C. § 7511 (a)(1)(A)(ii)
with Board appeal rights.5
¶11 An agency’s failure to provide a public tenure d employee with an
opportunity to present a response, either in person or in writing, to an appealable
agency action that deprives him of his property right in his employment
constitutes an abridgement of his constitutional right to minimum due process of
law, i.e., prior notice and an opportunity to respond. Cleveland Board of
Education v. Loudermill , 470 U.S. 532 , 546 (1985). Here, the agency notified the
appellant on June 13, 2018, that his employment was being terminated that same
date. IAF, Tab 9 at 36. He was not provided an opportunity to respond until after
his termination. Id. at 38 -40. Therefore the a gency’s termination procedures did
not provide him with his constitutional right to minimum due process of law.
Accordingly, the agency’s action must be reversed. See Claiborne , 118 M.S.P.R.
491, ¶ 8 (reversing an agency’s action where the appellant was not provided with
an opportunity to respond to the charges).
ORDER
¶12 We ORDER the agency to cancel the appellant ’s termination and to restore
him effective June 13, 2018. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete t his action no later
than 20 days after the date of this decision.
¶13 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 6 0 calendar days after the date of this
5 In light of this conclusion, we need not address the appellant’s claim on review that
the administrative judge erred in finding that the appellant’s prior service could not be
tacked on to his current service to meet the 1 -year probationary period require ment,
which would otherwise have rendered him an “employee” under 5 U.S.C.
§ 7511 (a)(1)(A)(i).
8
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 hel p 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 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).
¶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 e nforcement
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 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).
¶16 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.
9
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 Code (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 OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum wit h which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the la w applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within 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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the 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. O f particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the s ervices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affec ted by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civi l action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then y ou must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their r espective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Empl oyment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operat ions within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportu nity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 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.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
7 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.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are inter ested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appe llants before the 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/CourtWeb sites.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 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 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 decis ion.
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. | WANG_JACK_C_DC_315H_18_0660_I_1_FINAL_ORDER_2053563.pdf | 2023-07-26 | null | DC-315H | NP |
2,848 | https://www.mspb.gov/decisions/nonprecedential/STEVENS_MICHAEL_G_AT_1221_14_0743_W_2_FINAL_ORDER_2053579.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL G. STEVENS,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-1221 -14-0743 -W-2
DATE: July 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael G. Stevens , Daphne, Alabama , pro se.
Filomena Gehart and William V. Cochrane , Jr., Eglin A ir Force Base ,
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
denied his request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial d ecision 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 rec ord closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED to
address the appellant’s allegations of whistleblower reprisal under 5 U.S.C.
§ 2302 (b)(9) , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant filed an IRA appeal alleging that in reprisal for 31 alleged
protected disclosures that he made be tween March 2005 and June 6, 20 12, and
more recently between July 10, 2012 , and May 31, 2013 , he was subjected to
13 personnel actions , which occurred between May 13, 2013 , and May 13, 2014.
Stevens v. Department of the Air Force , MS PB Docket No. AT -1221 -14-0743 -
W‑1, Initial Appeal File (IAF), Tab 1.2 He did not request a hearing. Id. at 11.
The administrative judge found that the appellant had raised nonfrivolous
allegations of Board jurisdiction and i ssued a detailed jurisdictional order
identifying the specific disclosures and personnel ac tions over which the
appellant had established Board jurisdiction. IAF, Tab 26.
¶3 After affording the parties an opportunity to file close -of-record
submissions, the administrative judge issued an initial decision, denying the
2 The appellant’s initial appeal was dismisse d without prejudice on September 1, 2016,
and automatically refiled 30 days later. IAF, Tab 34.
3
appellant ’s request for correc tive action. Stevens v. Department of the Air Force ,
MSPB Doc ket No. AT -1221 -14-0743 -W-2, Tab 6, Initial Decision (ID). The
administrative judge found that the appellant proved by preponderant evidence
that he made a protected disclosure in March 2005 , when he reported a Federal
Travel Regulations violation comprising the denial of his travel request for a
3-day temporary duty assignment in Maitland, Florida. ID at 7 -8. However, the
administrative judge found that the appellant failed to prove that this protected
disclosure in 2005 was a contributing factor in the agency’s personnel actions, the
earliest of which occurred 8 years later. ID at 8. The administrative judge also
found that the agency had strong evidence in support of its personnel actions,
which stemmed from a Headquarters Command notification that funding for the
appella nt’s position and m any others would be eliminated. Id.
¶4 The administrative judge further found that the appellant failed to prove by
preponderant evidence that his remainin g protected disclosures were protected.
The administrative judge found tha t the appella nt’s alleged disclosures 6, 9 -10,
12, and 19-20 concerned complaints to various individuals about his reassignment
from a GS -12 Physical Scientist (Environmental) posit ion to a GS -11
Environmental Eng ineer position in the Compliance section, as part of a
reorganiza tion foll owing the headquarters notification that funding for the
appellant’s position and many others would be eliminated. ID at 5, 9. The
administrative judge found that the appellant failed to prove that these alleged
disclosures amounted to a disclosure of one of the categories of wrongdoing set
forth in 5 U.S.C. § 2302 (b)(8) because they merely amounted to questions and
concerns regarding the agency’s decision to reassign him and/or disagreement
over the agency’s d ecision to abolish his position . ID at 9 -12.
¶5 The administrative judge found that the appellant’s all eged disclosures
13-16, 21, 24 -25, and 27 involved his stated concerns regarding a n Environmental
Restoration Program (ERP) manager’s potential conflict of intere st in that he
believed that the ERP M anager was requesting that certain contractors perform
4
work outside of their scope and , as a result, the ERP M anager might treat them
more favorabl y when awarding a contract in the future if she subsequently served
on the Performance Base Contract Board (PCB) . ID at 5, 12 ‑13. The
administrative judge found that such disclosures were not protected because a
reasonable person would not have believed that they amounted to a disclosure of
any of the categories of wrongdoing under section 2302(b)(8) to the extent the
disclosur es were speculative in nature, presupposed that the ERP Manager would
serve on the PCB and the subject contractor would bid on a contract, and,
ultimately, disclosed a conflict of intere st that might never materialize. ID
at 12-14.
¶6 The appellant has fil ed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition, and the appellant
has filed a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 On petition f or review, the appellant largely re iterates his alleged
disclosures without explaining how they amount to a disclosure of any of the
categories of wrongdoing identified in 5 U.S.C. § 2302 (b)(8). PFR File, Tab 1
at 7-19. He does n ot identify any error in the administrative judge’s finding that
his disclosures about his reassignment (disclosures 6, 9 -10, 12, and 19 -20) were
not protected because they amounted to mere disagreement with the agency’s
decision to abolish his position3 or that his disclosures concerning the ERP
3 The appellant’s alleged disclosures 6, 9, and 10 involved disclosures made in the
context of a grievance. IAF, Tab 26 at 6 -7. The Whistleblower Protection
Enhancement Act of 2012 , Pub. L. No. 112-199, 126 stat. 1465 , extended the Board’s
jurisdiction over IRA appeals to claims of reprisal for engaging in protected activity by
filing a complaint or grievance seeking to remedy whistleblower repris al under 5 U.S.C.
§ 2302 (b)(8). 5 U.S.C. §§ 1221 (a), 2302(b)(9)(A) (i); Mudd v. Department of Veterans
Affairs , 120 M.S.P.R. 365 , ¶ 7 (2013). Here, however, the appellant ha s not proven , or
even argued, that his grievances involved remedying a violation of 5 U.S.C.
§ 2302 (b)(8). Thus, the administrative judge properly analyzed whether these alleged
disclosures amoun ted to protected disclosures under 5 U.S.C. § 2302(b)(8).
5
Manager’s alleged potential conflict of interest (disclosures 13 ‑16, 21, 24 ‑25,
and 27) were not protected because they were too speculative. Nor does he
challenge the administrative judge’s finding that he failed to prove that his 2005
disclosure regarding travel reimbursement was a contributing factor in any of the
agency’ s personnel actions. Id. at 3 . To the extent the appellant has not
identified any specific error in the administrative judge’s analysis, the Board will
not embark upon a complete review of the record. See Baney v. Department of
Justice , 109 M.S.P.R. 242 , ¶ 7 (2008); Tines v. Department of the Air Force ,
56 M.S.P.R. 90 , 92 (1992).
¶8 On review, the appellant argues that the administrative judge erred
generally in finding that his disclosu res were not protected because he previously
found that they were protected in a July 26, 2016 jurisdictional order . PFR File,
Tab 1 at 4-6. He also argues that the agency and/or the administrative judge
failed to show that his disclosures were not protected and/or were not a
contributing factor in the agency’s personnel actions. Id. at 4, 6. Such arguments
misconstrue the relevant burdens of proof in an IRA appeal. In his jurisdictional
order, the administrative judg e did not find that the appellant proved the merits of
his appeal. Rather, he found that the appellant raised nonfrivolous allegations
that he made a protected disclosure that was a contributing factor in the agency’s
decision to take a personnel action, and thus established Board jurisdiction,
entitling him to a hearing, if requested. IAF, Tab 26. Because the appellant did
not request a hearing, the administrative judge properly issued a close -of-record
order, notifying the appellant of his ultimate bur den of proving the merits of his
appeal by establishing those same elements by preponderant evidence.4 IAF,
Tab 26 at 20; see 5 C.F.R. § 1201.57 (c)(4). The appellant’s argument that th e
agency and/or the administrative judge failed to show that his disclosures were
4 The administrative judge also had previously notified the appellant regarding these
burdens. IAF, Tab 2.
6
not protected is similarly unavailing because it is the appellant’s burden to prove
that he made a protected disclosure that was a contributing factor in a personnel
action. See 5 U.S.C. § 1221 (e)(1); Lu v. Department of Homeland Security ,
122 M.S.P.R. 335 , ¶ 7 (2015).
¶9 On revie w, the appellant also contends that the administrative judge erred in
using improper terminology when he referred to the appellant’s disclosures as
relating to his reassignment instead of a downgrade or change to low er grade.
PFR File, Tab 1 at 4 . However, any such error does not provide a basis for
reversal to the extent the appellant has not explained how this error was
prejudicial and the record reflects that , although the administrative judge referred
to it as a reassignment, he acknowledged that the reassignment was from a GS -12
Physical Scientist position (Environmental) to a GS -11 Environmental Engineer
position . ID at 5 , 9; 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 revers ing an initial decision ).
¶10 Regar ding the appellant’s alleged pro tected disclosures concerning the ERP
Manager’s alleged conflict of interest (disclosures 13 -16, 21, 24 -25, and 27), the
appellant assert s that the administrative judge discussed, but did not identify ,
disclosures 21, 25, an d 27 by number , and failed to discuss certain other alleged
disclosures. PFR File, Tab 1 at 5 . In particular, he contends that the
administrative judge did not identify disclosure 13, but acknowledges that the
administrative judge quoted a portion of thi s email disclosure in the initial
decision. Id. Regarding disclosure 14, the appellant asserts that the
administrative judge did not identify this disclosure and incorrectly described the
contents of his supervisor’s email response to this alleged disclo sure. Id.
However, we have reviewed this disclosure and find that it disclosed the same
essential facts as disclosure 13 , which the adminis trative judge quoted, and the
administrative judge prop erly characterized the appellant ’s supervisor’s reply. ID
at 13, IAF, Tab 14 at 39 -40, 43 -44. The appellant also contends that the
7
administrative judge did not identify or discuss disclosure 24. PFR File, Tab 1
at 5. However, this disclosure amounts to a forward ed email of the appellant ’s
disclosure 21 , which t he administrative judge referenced. ID at 13 n.6; IAF,
Tab 13 at 42, Tab 26 at 11. In any event, b ecause the appellant ’s disclosures
concerning the ERP Manager’s alleged conflict of interest all disclosed the same
essential facts , any failure on the admi nistrative judge ’s part to specifically
discuss the details of each disclosure does not provide a basis for reversal because
the analys is in the initial decision also would apply to each of these alleged
disclosure s.
¶11 The appellant’s alleged disclosure 16 was made to the Department of
Defense Inspector General (IG) . Although the administrative judge analyzed this
disclosure under 5 U.S.C. § 2302 (b)(8), he did not analyze whether it amounted to
protected activity under section 2302(b)(9) (C), which includes disclosing
information to an agency’s IG.5 Therefore, we modify the initial decision to
address this issue. Under the broadly worded provision of 5 U.S.C.
§ 2302 (b)(9)(C), disclos ing information to an agency’s IG is protected regardless
of content, as long as the disclosure is made “in accordance with applicable
provisions of law .” Fisher v. Department of the Interior , 2023 MSPB 11 , ¶ 8.
Thus, we find that the appellant proved by preponderant evidence that he engaged
in protected activity when he disclosed inform ation on January 10, 2013, to the
agency’ s IG office by filing a hotline complaint concerning the ERP Manager’s
alleged conflict of interest . IAF, Tab 14 at 52 -56.
5 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115 -91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the U.S. Code. In particular, it amended 5 U.S.C. § 2302 (b)(9)(C) to include
disclosing information to the Inspector General “or any other component responsible for
internal investigation or review.” 131 Stat. 1283, 1616. However, the result here
would be the same under both pre - and post-NDAA law because the appellant disclosed
information to the agency’s IG.
8
¶12 However, we find that the appellant failed to prove by preponderant
evidence that his disclosing information to the IG was a contributing factor in any
of the six agency personnel actions at issue in this appeal .6 The appellant has not
offered any evidence establishing that the relevant deciding officials were aware
that he filed an IG compla int. Rather, he asserts on review that the IG’s email
response to h im, which indicated that the IG had referred his concerns to the
appropriate authorities within the Department of Defense for information and any
action they deem ed appropriate, IAF, Tab 1 4 at 57, “most likely raised a few
feathers” with management, PFR File, Tab 1 at 15 . Such a bare statement fails to
prove that the appellant’s supervisor or human resources specialist or any other
individual involved in the personnel actions was aware of his IG complaint. See
Jones v. Department of the Treasury , 99 M.S.P.R. 479 , ¶ 8 (2005) (finding that an
appellant’s insinuation and unsubstantiated speculation that an individual knew of
his prior whistleblowing activity did not amount to a nonfrivolous allegation of
contributing factor). Additionally, although the record below reflects that the
appellant informed the legal office and Captain A.N. that he had contacted the IG
and sent them a copy of his IG complaint, such individuals do not appear to have
been involved in making the decision to take the relevant personnel actions.7
6 In the jurisdictional order, the administrative judge found that the appellant
established Board jurisdiction over the following personnel actions: (1) on June 4,
2013, his su pervisor informed him that he would no longer be the designated point of
contact for a contractor and took away other duties; (2) on June 12, 2013, the
appellant’s supervisor detailed him to perform GS -11 Compliance duties; (3) in
June/August 2013, the app ellant’s supervisor denied his request for an alternative work
schedule; (4) on November 26, 2013, the appellant’s detail to GS -11 duties was
extended to a date not to exceed February 2, 2014; (5) on February 2, 2014, the
appellant’s GS -11 detail ended and he was returned to his former GS -12 position,
however , between February 2 and May 6, 2014, his actual duties remained those of a
GS-11 Environmental Engineer; and (6) on or about April 10, 2014, a human resources
employee informed the appellant that his f ormer position had been abolished; IAF,
Tab 26 at 14 -17.
7 We are unable to discern from the appellant’s lengthy submissions below any specific
argument concerning whether the officials involved in taking the relevant personnel
actions were aware of his I G complaint. However, the appellant bears the burden of
9
IAF, Tab 12 at 16, Tab 13 at 54 -56. Thus, the appell ant has not established
contributing factor via the knowledge/ timing test . See 5 U.S.C. § 1221 (e)(1)
(explaining that an employee may demonstrate contributing factor through
circumstantial eviden ce that the official taking the personnel action knew of the
protected activity and the personnel action occurred within a period of time such
that a reasonable person could conclude that the protected activity was a
contributing factor in the personnel ac tion).
¶13 Further, the appellant has not proven contributing factor considering the
strength of the agency’s evidence and the lack of motivation on the part of the
individuals who took the personnel actions. Rumsey v. Department of Justice ,
120 M.S.P.R. 259 , ¶ 26 (2013) (stating that if an appellant fails to satisfy the
knowledge/timing test, the Board must consider other evidence, suc h as that
pertaining to the str ength or weakness of the agency’ s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the
proposing or deciding official, and whether those individuals had a desire or
motive to r etaliate against the appellant). The appellant’s IG complaint
concerned an alleged conflict of interest on an ERP manager ’s part and was not
directed at his supervisor or the human resource s specialist who took the relevant
personnel actions . Thus, we are u nable to discern a motive to retaliate on the part
of the relevant officials. Further, as the administrative judge found, the agency
had strong evidence in support of its actions, which stemmed from a
headquarters -directed reorganization in which the appe llant ’s position was
abolished. Accordingly, we modify the initial decision to find that the appellant
has not proven by preponderant evidence that his protected activity in disclosing
proving contributing factor, 5 U.S.C. § 1221 (e)(1); 5 C.F.R. § 1201.57 (c)(4), and it is
not the Board’s obligation to pore through the record to construe and make sense of
allegations set forth at various parts of a voluminous case file, see Keefer v. Department
of Agriculture , 92 M.S.P.R. 476 , ¶ 18 n.2 (2002).
10
information to the IG was a contributing factor in any of the agency’ s personnel
actions.
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 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 applicab le to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the 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
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
Opportu nity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures unde r 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 f ile a 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
followin g address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of pa rticular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Cour t of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any c ourt of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleb lower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Board neither endorses the servi ces 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 | STEVENS_MICHAEL_G_AT_1221_14_0743_W_2_FINAL_ORDER_2053579.pdf | 2023-07-26 | null | AT-1221 | NP |
2,849 | https://www.mspb.gov/decisions/nonprecedential/VAN_FOSSEN_LEWIS_E_SF_1221_17_0403_W_1_REMAND_ORDER_2053619.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEWIS E. VAN FOSSEN,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
SF-1221 -17-0403 -W-1
DATE: July 26, 2023
THIS ORDER IS NONPRECEDENTIAL1
Lewis E. Van Fossen , Honolulu, Hawaii, pro se.
Ashley Geisendorfer , 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 th e initial decision, wh ich
dismissed his individual right of action (IRA) appeal for lack of jurisdiction . For
the reasons discussed below, we AFFIRM the initial decision to the extent that it
found that the appellant did not nonfrivolously allege that he made any protected
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
whistleblowing disclosures . We MODIFY the initial decision to the extent that it
found that the appellant did not exhaust his claims regarding his performance
reviews and previous disciplinary actions and instead find that his appeal is
untimely with respect to these claims. We also MODIFY the initial decision to
find that the appellant engaged in protected whistleblowing activity only when he
filed complaints with the Office of Special Counsel (OSC) and the agency’s
Office of the Inspe ctor General (OIG) . We further MODIFY the initial decision
to find that the appellant nonfrivolo usly alleged that his protected whistleblowing
activity was a contributing factor in his first -line supervisor’s decision to place
him on a performance improve ment plan (PIP) , the proposing and deciding
officials had constructive knowledge of this activity , and the activity was a
contributing factor in his proposed removal and removal . We GRANT the
appellant’s petition for rev iew and REMAND the case to the regi onal office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was employed at the agency as a Fishery Resource
Management Specialist in Honolulu, Hawaii . Init ial Appeal File (IAF), Tab 1
at 7. The appellant’s first-line supervisor began supervising him on February 19,
2014. Id. at 8. On April 1 5, 2015, she conducted a progress review of the
appellant’s performance and gave him written feedback . Id. At that point , she
notified him that his perfo rmance was at the “eligible” performance level and that
he had several performance deficiencies under the critical element s of (1) Mission
and (2) Administration . Id. On May 27, 2015, the appellant received an official
reprimand for disrespectful and unprofessional c onduct. IAF, Tab 14 at 65 -67.
Effective October 5, 2015, the agency placed him o n a Performance Improvement
Plan (PIP) on the basis of his unsatisfactory performance under Critical Element
(1) Mission . IAF, Tab 1 at 8. The P IP conclu ded on January 8, 2 016. Id.
3
¶3 The agency proposed the appellant’s removal on the basis of unacceptable
performance on August 15, 2016. Id. at 7-17. The Director of the Office of
Sustainable Fisheries stated that the agency selected him to serve as the proposing
official bec ause he was outside of the appellant’s chain of command . Id. at 7. He
stated that he based the proposal on an independent assessment of the appell ant’s
performance to provide him with a review outside of his October 5, 2015 PIP. Id.
He indicated that, on the basis of this review, he found that the appellant failed to
improve his performance in the Critical Element (1) Mission or achieve the
specific requirements o f that element. Id. at 8 -9. The Deputy Assistant
Administrator for Operations, who was also outside of the appellant’s chain of
command, served as the deciding official. Id. at 18 -33. The agency imposed the
removal on October 12, 2016. Id.
¶4 In July 2016 , after the beginning of the PIP , and prior to the proposal to
remove him, the ap pellant filed a complaint with OSC . IAF, Tab 16 at 8 -15. He
alleged the following : (1) in May 2015, he disclosed to OIG that his first -line
supervisor retaliated against him through the manner in which she conducted her
performance -based discipline and that agency officials were disciplining him ; and
(2) agency officials configured his computer to interfere with his work and to
surveille him. Id. at 11 -13. He also asserted that he had engaged in protected
activity when he filed complaints with (1) OSC, (2) OIG , and (3) the agency’s
Office of Civil Rights (OCR) from 2014 to 2016. Id. at 12. The appellant
asserted that, in retaliation for these protected whistlebl owing disclosures and
activities , the agency conducted a retaliatory investigation against him, assig ned
him poor performance ratings, and placed him on a PIP. Id. at 11-13. At some
point after the proposal and removal decision, the appellant amended h is OSC
complaint to include the proposal and removal decisions . IAF, Tab 1 at 46.
4
¶5 On January 25, 2017, OSC issued its initial determination letter.2 Id.
at 46-47. I t stated that it would not consider the appellant’s claims regarding his
performance ratings and other disciplinary actions that were the subject of his
prior complaint s in MA-11-1110 and MA-14-4863 .3 Id. at 46 . OSC also
described several reasons why it found that the agency did not have a strong
motive to retaliate against the appellant. Id. at 47. For instance, OSC stated that
he merely speculated that his first -line su pervisor had placed him on a PIP at the
direction of his forme r first -line supervisor, he began filing complaints against
her after she began to discipline him, he never met either the proposing or
deciding officials, and these officials were not in his ch ain of command . Id.
OSC further stated that, on the basis of the evidence that the appellant provided,
it appeared that the agency would be able to show that it took the actions at issue
because of his performance and not because of a retaliatory motive. Id. The
appellant responded, asserting that he had engaged in over 30 protected activities
and agency officials, including his first -line supervisor and the proposing and
deciding officials , had knowledge of th ese activit ies. IAF, Tab 16 at 16-32.
After considering the appellant’s response , OSC issued its closeout letter on
February 27, 2017. IAF, Tab 1 at 43.
¶6 The appellant then filed the instant IRA appe al. IAF, Tab 1 . Without
holding the appellant’s requested hearing, the administrative judge issued an
initial decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 19,
2 The record contains a copy of the appellant’s January 2011 OSC complaint. IAF,
Tab 12 at 5 -16. In this complaint, he asserted that he received lower performance
scores in retaliation for disclosi ng possible withholding or destruction of protected
information to his first -line supervisor and OIG and disclosing to his supervisor in 2007
and 2008 that it was possible that observers were watching movies or sleeping instead
of observing fishing gear. Id.
3 The letter also stated that it would not consider the claims regarding the appellant’s
performance evaluation as they had been the subject of his complaint in MA -16-4287.
IAF, Tab 1 at 46. However, as that complaint number was that of the investigation at
issue, we assume that this was a typographical error.
5
Initial Decision (ID). She found that the appellant did not nonfrivolously allege
that he made any protected disclosures and that, although he engaged in several
instances of protected whistleblowing activity , he failed to nonfrivolously allege
that this protected activity was a contributing factor in the decision to place him
on a PIP or to propose or impose his removal. ID at 7 -18.
¶7 The appellant has filed a pet ition for review and the agency has responded
in opposition to his petition.4 Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The appellant may establish jurisd iction over this IRA appeal if he
demonstrates by preponderant evidence5 that he exhausted his administrative
remedy before OSC and makes nonfrivolous allegations6 of the following: (1) he
made a protected whistleblowing disclosure under 5 U.S.C . § 2302 (b)(8) or
engaged in protected whistleblowing activity under 5 U.S.C. § 2302 (b)(9)(A)(i),
(B), (C), or (D); and (2) the disclosure or activity was a contributing factor in the
4 The appellant has filed a reply, which the agency has moved to strike as untimely.
PFR File, Tabs 5 -6. Under the Board’s regulations, any reply to a response to a petition
for revie w must be filed within 10 days after the date of service of the response to the
petition for review. 5 C.F.R. § 1201.114 (e). The agency filed its response on
November 17, 2017, via e -Appeal. PFR File, Tab 4. Because the appellant was an
e-filer, the Board’s regulations deem that this response was served on the appellant on
that date. Id. at 17; see 5 C.F.R. § 1201.1 4(m)(2). Accordingly, the reply was due on
November 27, 2017. The appellant did not submit his reply until January 9, 2018, or
43 days after the filing deadline. He has not provided any excuse for the delay. Thus,
we have not considered the untimely re ply.
5 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).
6 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 allegatio n 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 appeal. Lewis ,
123 M.S.P.R. 255 , ¶ 7; 5 C.F.R. § 1201.4 (s).
6
agency’s d ecision to take or fail to take , or threaten to take or fail to take, a
personnel action.7 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Yunus v. Department of
Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001); Lewis v. Department of
Defense , 123 M.S.P.R. 255 , ¶ 7 (2016); Salerno v. Department of the Interior ,
123 M.S.P.R. 230 , ¶ 5 (2016) ; 5 C.F.R. § 1201.57 (a)(1), (b), (c)(1) . If an
appellant e stablishes jurisdiction over his IRA appeal, he is entitled t o a hearing
on the merits of his claim, which he must prove by preponderant evidenc e.
Salerno , 123 M.S.P.R. 230 , ¶ 5; 5 C.F.R. § 1201.57 (c)(4) . If he proves that h is
protected whistleblowing disclosure or activity was a contributing factor in a
personnel action that was taken or threatened , the agency is given an opportunity
to prove, by clear and convincing evidence, that it would have taken or threatened
the same personnel action in the absence of the protected whistleblowing
disclosure or activity . 5 U.S.C. § 1221 (e)(1) -(2); Carr v. Social Security
Administration , 185 F.3d 1318 , 1322 –23 (Fed. Cir. 1999) ; see Salerno ,
123 M.S.P.R. 230 , ¶ 5.8
7 The administrative judge found that the appellant did not exhaust his administrative
remedy regarding his performance ratings and other disciplinary actions that were the
subject of his 2011 and 2014 OSC complaints. ID at 5; IAF, Tab 1 at 46 -47, Tab 12
at 5-16. We modify the initial decision to find instead that the appellant filed an
untimely Board appeal regarding these matters. Under 5 U.S.C. § 1214 (a)(3)(A), an
appellant may file an IRA appeal with the Board once OSC closes its in vestigation into
his complaint and no more than 60 days have elapsed since notification of the closure
was provided to him. Kalus v. Department of Homeland Security , 123 M.S.P.R. 226 ,
¶ 7 (2016). Under the Board’ s regulations implementing that statutory time limit, an
IRA appeal must be filed no later than 65 days after the date that OSC issues its
close -out letter, or, if the le tter is received more than 5 day s after its issuance, within
60 days of the date of receipt. 5 C.F.R. § 1209.5 (a)(1). The appellant has not met his
burden of demonstrating that he filed timely appeals regarding the 2011 and 2014
complaints and thus we do not consider these claims.
We find that the appellant has otherwise demonstrated exhaustion regarding the
remainder of his claims.
8 The U.S. Court of Appeals for the Federal Circuit decided Carr prior to the enactment
of the Whistleblower Protection Enhancement Act of 2012. Pub. L. No. 112 -199,
7
The appellant did not nonfrivolously allege that he made any protected
whistleblowing disclosures.
¶9 The administrative judge found that the appellant failed to nonfrivolously
allege that he made any protected whistle blowing discl osures. ID at 7 -12.
Although it is unclear to whom he made this disclosure, t he appellant asserted
that he made one disclosure that the agency was engaging in a dis ciplinary
campaign against him. IA F, Tab 16 at 13 . He also asserted that he disclosed to
OIG that his supervisor was retaliating against him through perf ormance -based
discipline and to both OIG and the information technology (IT) incident response
team that agency officials configured hi s computer to improperly access it,
interfere with his work, and sabotage him. Id. at 13-14, 20-21. On review, the
appellant challenges, in particular, the administrative judge’s finding that he
failed to make a protected disclosure regarding comput er sabotage. PFR F ile,
Tab 1 at 7 -10.
¶10 A protected whistleblowing disclosure is a disclosure of information that
the appellant reasonably believes evidences any violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. 5 U.S.C.
§ 2302 (b)(8); Bradley v. Department of Homeland Security , 123 M.S.P.R. 547,
¶ 7 (2016). At the jurisdictional stage, the appellant only is burdened with
making a nonfrivolous allegation that he reasonably believed that his disclosure
evidenced one of th ese circumstances. Bradley , 123 M.S.P.R. 547, ¶ 7. 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 c onclude that the disclosure evidenced one of the circumstances
126 Stat. 1465 . However, subsequent changes in the law do not affect the relevant
holding.
8
described in 5 U.S.C. § 2302 (b)(8). Id. Vague, conclusory, unsupported, and pro
forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading
standa rd needed to establish the Board’ s jurisdiction . El v. Department of
Commerce , 123 M.S.P.R. 76 , ¶ 6 (2015), aff’d , 663 F. App’x 921 (Fed. Cir.
2016).
¶11 We agree with the administrative judge that the appellant’s arguments
regarding his first -line supervisor and the agency’s disc ipline do not constitute a
nonfrivolous allegation of a protected disclosure. We agree that he has not
nonfrivolously alleged an abuse of authority or a violation of a law, rule, or
regulation . ID at 9-10. Specifically, w e have considered that harassment by a
supervisor may constitute an abuse of authority. See Ayers v. Department of the
Army , 123 M.S.P.R. 11 , ¶ 14 (2015). However, we find that the appellant’s
assertions that the agency and his sup ervisor disciplined him for his disagreement
with how his assignments were evaluated do not rise to this level. We also can
find no law, rule, or regulation that is applicable to this situation. Additionally,
we find that the appellant ’s arguments regard ing how the agency or his supervisor
disciplined him are too vague and debatable to constitute a nonfrivolous
allegation of gross mismanagement. See Webb v. Department of the Interior ,
122 M.S.P.R. 248 , ¶¶ 9-10 (2015) (holding that a disclosure of gross
mismanagement excludes management decisions that are merely debatable).
¶12 The appellant also h as not established jurisdiction over his disclosure that
the agency somehow tampered with his computer , including creating “back
doors .” IAF, Tab 16 at 11 -12. To the extent that he is asserting that the agency
or his first -line supervisor somehow violated a law, rule, or regulation or created
a substantial and specific danger to public health or safety, we find that he has
identified no such law, rule, or regulation and his assertions are unsupported as
opposed to substantial and specific . See Lewis , 123 M.S.P.R. 255, ¶ 12 (finding
that the appellant failed to make a nonfrivolous allegation of a violation of law,
rule, or regulation or a substantial and specific danger to public health or safety
9
when he asserted that an agency manager exhibited signs of schizophrenia in
response to the 2011 earthquake in Washington, D .C.). Further, we agree with
the administrative judge that the appe llant’s assertions regarding the agency’ s
interference with his computer do not constitute a nonfrivolous alle gation of an
abuse of authority as they are not supported in the record and a reasonable person
would find his allegations to be implausible . ID at 10 -12. Accordingly, we agree
with the administrative judge that the appellant has failed to nonfrivolously allege
that he made a protected disclosure.
The appe llant nonfrivolously alleged that he engaged in protected whistleblowing
activity only with respect to his OIG and OSC complaints .
¶13 Although we find that the appellant has not nonfrivolously alleged that he
made any protected whistleblowing disclosures, we find that he nonfrivolously
alleged that he engaged in protected whistleblowing activity by filing complaints
with OSC and OIG . The appellant asserted before OSC that he engaged in more
than 30 instances of protected activity from 2002 to 2016 , including
26 specifically described activities . IAF, Tab 16 at 17-21. This activity include s
seven OIG complaints, four OSC complaints , a 2002 internal report of payroll
fraud, three grievances, six informal grievances and other complaints , a complaint
to the information technology ( IT) incident response team, a workers’
compensation complaint, and three complaints regarding discrimination ,
including two equal employment opportunity (EEO) complaint s with the OCR.
IAF, Tab 14 at 47 -54, Tab 16 at 12 , 17-21.
¶14 The administrative judge found that the appellant exhausted and
nonfrivolously alleged that he engaged in four instances of protected
whistleblowing activity on the basis of three OIG complaints and one
administrative grievance that also was disclosed to OIG. ID at 13 -14. We modify
this decision to find that, although the appellant nonfrivolously alleged that
several of his complaints to OSC and OIG were protected under 5 U.S.C.
§ 2302 (b)(9)(C) , his other activity is not pr otected whistleblowing activity .
10
Instead, this other activity involve s grievances and complaints other than with
regar d to remedying a violation of 5 U.S.C. § 2302 (b)(8) , internal investigations,
and complaints limited to EEO matters.
¶15 We find that the appellant nofrivolously alleged that he engaged in
protected activity under 5 U.S.C. § 2302 (b)(9)(C) when he filed several OIG and
OSC complaints. Under 5 U.S.C. § 2302 (b)(9)(C), the appel lant engages in
protected whistleblowing activity by filing complaints with OIG and OSC.
Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. Disclosures of
information to an agency’s OIG or to OSC are protected , regardless of their
content, as long as such disclosures are made “in accordance with applicable
provisions of law.” Id. The appellan t stated that he filed the fol lowing OIG
complaints: (1) in 2009, he asserted that employees were violating the telework
policy; (2) in 2010, he asserted that a photograph had been withheld or
improperly archived ; (3) in 2014, he asserted that his former first -line supervisor
failed t o assign work to him; (4) in 2015 , he asserted that, since March 2015, he
was being set up for a performance -based action through a PIP; (5) in 2015, he
asserted that his first -line supervisor subjected him to a hos tile work
environment, including ramping up progressive discipline ; (6) in 2015, he
asserted that the agency improperly engaged in a criminal investigation by
entering his office and sending pictures of a stuffed turtle to law enforcement
officials; and (7) in 2016, he asserted that the agency vi olated 18 U.S.C. § 1030
by engaging in unauthorized access to a Government computer. IAF, Tab 14
at 6-9, 18 -22, Tab 16 at 17 -21. He also stated that he filed previous OSC
complaints in 2003, 201 1, approximately 2013, and 2014. IAF, Tab 16 at 17 -19.
Specifically, he stated that his 2011 complaint challenged his performance ratings
and his 2014 complaint challenged his prior first -line supervisor’s decision to
“idle” him. Id. at 18 -19. We find that the appellant has nonfrivolously alleged
11
that he engaged in protected whistleblowing activity by filing these OIG and OSC
complaints in accordance with law .9
¶16 The Board does not have jurisdiction over the appellant’s other claims. He
asserts that the agency retali ated against him for filing formal and informal
grievances and workers’ compensation complaint . Pursuant to 5 U.S.C.
§ 2302 (b)(9)(A)(i), an employee engages in protected activity over which the
Board has jurisdiction in an IRA appeal when he engages in “any appeal,
complaint, or grievance right granted by any law, rule, or regulation —with regard
to remedying a violation of [5 U.S.C. § 2302 (b)(8)].” The Board lacks
jurisdiction over the appellant’s assertion regarding his workers’ compensation
claim because filing such a claim is not a protected activity. See Linder v.
Department of Justice , 122 M.S.P.R. 14 , ¶ 9 (2014). Further , the Board only has
jurisdiction in an IRA appeal over allegations of retalia tion for filing a grievance
when the grievanc e concerns remedying a violation of 5 U.S.C. § 2302 (b)(8). See
Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶¶ 6-7 (2013). These
instances involve the appellant’s disagreements with his first-line supervisor and
other agency officials and pertain to matters such as challenging his workload,
instructions, deadlines , and performance reviews, reporting rumors, and
9 We have considered the appellant’s claim that the agency conducted a criminal
investigation against him by searching his office in the context of whether he engaged
in protected whistleblowing activity. IAF, Tab 16 at 20 -21. To the extent that the
appell ant asserts that the investigation constituted a personnel action, we find that an
investigation is not generally a personnel action. See Shibuya v. Department of
Agriculture , 119 M.S.P.R. 537 , ¶ 22 n.12 (2013). In this regard, the National Defense
Authorization Act for Fiscal Year 2018 (NDAA of 2018) , Pub. L. No 115-91,
§ 1097(c) (4), 131 Stat. 1283, 1619 , signed into law on Decemb er 12, 2017, amended
5 U.S.C. § 1214 to allow OSC to petition the Board for corrective action on behalf of an
employee due to an agency’s investigation of the employee if it was commenced,
expanded , or extended in retaliation for protected whistleblowing activity. 5 U.S.C.
§ 1214 (j). Regardless of any questions as to whether this amendment applies
retroactively, it does not apply to this a ppeal because OSC has not petitioned the Board
for such relief .
12
requesting a transfer . IAF, Tab 16 at 17 -21. However, none involve s his
challenge of a violation of 5 U.S.C. § 2302 (b)(8). Accordingly, we do not have
jurisdiction over the appellant’s claims regarding t his activity .
¶17 Additionally, we lack jurisdiction over the appellant’s claims of retaliation
regarding the IT incident response team and his report regarding payroll fraud .
Participation in an internal investigation does not constitute protected activity
under 5 U.S.C. § 2302 (b)(9)(A) (i) because it is not an initial step toward taking
legal action against the agency for a perceived violation of employment rights .10
See Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 18 (2016).
The appellant has not asserted that the IT incident r esponse team or the payroll
fraud report involve d his employment rights. Accordingly, we find that his
involvemen t was not protected.
¶18 In an IRA appeal, there is also no jurisdiction over claims that are li mited to
discrimination or EEO matters . 5 U.S.C. § 1221 (e); Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417 , ¶ 16 (2016); 5 C.F.R. § 1209.2 (c). The
appellant asserted that he complained to OCR that the agency discriminated
against him on the basis of his disabilities. IAF, Tab 16 at 21. Thus, this EEO
complaint did not constitute protected whistleblowing activity. He also has not
asserted that his 2 003 EEO complaint or 2012 complaint regarding racially
insensitive language involved anything other than EEO matters. Id. at 17 -18.
Accordingly, the Board lacks jurisdiction over the appellant’s claims of
retaliation o n the basis of these complaints . We find that h e has only
10 After the issuance of the initial decision, Congress passed the NDAA of 2018, which,
in section 1097(c)(1), amended 5 U.S.C. § 2302 (b)(9)(C) to provide protections for
individuals who cooperate with or disclose information to “any other component
responsible for internal investigation or review .” However, as we found in Edwards v.
Department of Labor , 2022 MSPB 9, ¶¶ 29-33, aff’d , No. 2022 -1967, 2023 WL
4398002 (Fed. Cir. July 7, 2023) , this statute is not retroactive. Accordingly, the
appellant cannot claim th at his participation in the internal agency processes, other than
with the OIG, constituted protected whistleblowing activity.
13
nonfrivolously alleged that he engaged in protected activity with respect to his
disclosures to OIG and OSC.
The appellant has nonfrivolously alleged that his 2014 and 2015 OIG and OSC
complaints were a contributing factor in the dec ision to place h im on a PIP .
¶19 Having f ound that the appellant has nonfrivolously alleged that his
complaints to OSC and OIG constituted protected whistleblowing activity , we
next modify the initial decision to find that he nonfrivolously alleged that his
protecte d whistleblowing activity was a contributing factor in his placement on a
PIP. One way to meet his burden regarding this element is to nonfrivolously
allege that the official who took the personnel action knew of the protected
whistleblowing activ ity and that the personnel action occurred within a period of
time such that a reasonable person could conclude that the activity was a
contr ibuting factor in the personnel action. Carney v. Department of Veterans
Affairs , 121 M.S.P.R. 446 , ¶ 7 (2014).
¶20 We agree with the administrative judge that the appellant’s first -line
supervisor knew about his protected whistleblowing activity before placing him
on the PIP . ID at 14. The appellant repeatedly informed her about his protected
activity. In a June 2015 grievance to his first -line supervisor regarding a
reprimand , the appellant stated that she was retaliating against him for prior OSC
and OIG activity. IAF, Tab 14 at 11 -16. In July 2015, the appellant emailed her
to state that he was filing a grievance regarding unreasonable deadlines, unclear
instructions, and excessive workloads. Id. at 47 -53. In that email, he alleged that
she was retaliating against him for his July 2014 OIG complaint and stated that he
would expand another OIG complaint, which was filed on May 28, 2015. Id.
at 47. She placed him on a PIP, effective October 5, 2015. IAF, Tab 1 at 8.
Thus, w e find that she knew about the appellant’s OIG and OSC activity when
she placed him on a PIP.
¶21 Having found that the appellant nonfrivolously alleged that his first-line
supervisor knew about his protected whistleblowing activity, we also modify the
14
initial decision to find that the activity occurred within a period of time such that
he has demonstrated that it was a contributing factor to his placement on a PIP.
The Board has found that personnel actions alleged to have begun within 1 to
2 years of the appellant’s pro tected whistleb lowing disclosures or activity
satisfied the timing prong of the knowledge /timing test. See, e.g. , Salerno ,
123 M.S.P.R. 230 , ¶ 14 (finding that the appellant made a nonfrivolous allegation
that his protected disclosure was a contributing factor to his 30 -day suspension
when the decis ion letter was issued approximately 15 months after his disclosure
to OSC) ; Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶¶ 20-22 (201 5)
(finding that the appellant proved that his August 2010 disclosures were a
contributing factor in the agency’s failure to give him a 40 -hour time -off award in
June 2012 ). The appellant filed his OSC complai nts in 2014 and 2015. IAF,
Tab 1 at 46 -47. Although it is unclear what dates the appel lant filed his OIG
complaints, he stated that he filed them in 2014 and 2015, prior to being placed
on a P IP in October 2015. Because he asserted that these complaints were dated
less than 2 years before he was placed on the PIP , we find that he has
nonfr ivolously alleged that these OSC and OIG complaints were a contribut ing
factor to his placement on the PIP.
The appellant has nonfrivolously alleged that the proposing and deciding officials
had construc tive knowledge of his protected activity and that the protected
activity was a contributing factor in their decisions.
¶22 We modify the initial decision to find that the appellant has nonfrivolously
alleged that the proposing and deciding officials had constructive knowledge of
his protected whistleblowing activity and to find that this activity was a
contributing factor in the propos al and decision to remove the appellant. The
administrative judge found that the appellant failed to nonfrivolously allege that
either the proposing or the deciding officials had actual knowledge of his
protected activity. ID at 15 -18. She found that, a lthough the appellant speculated
that the proposing official would have become aware of his reputation for
15
participating in protected activity, there was no such evidence and the agency
selected the proposing official, who worked in Silver Spring, Maryland , as
opposed to in the appellant’s duty station in Honolulu, Hawaii, to provide the
appellant an independent review of his removal. ID at 15 -16. The administrative
judge also found no evidence that the deciding official knew of the appellant’s
claims of retaliation or his protected activity. ID at 16 -17. She noted that the
deciding official’s summary of the appellant’s response to the notice of proposed
removal indicated his general awareness of some of the appellant’s protected
activity . ID at 17 -18. However, she found that this general information did not
indicate that he had knowledge of the appellant’s protected activity. ID at 18.
Accordingly, she concluded that the appellant did not nonfrivolously allege that
either the proposing or deciding of ficial had constructive knowledge of his
protected activity. Id. The appellant asserts that agency officials were influenced
to take action against him, including through his former first -line supervisor.
PFR File, Tab 1 at 10-13. We find instead that these officials had constructive
knowledge of the appellant’s protected activity through his first -line supervisor at
the time of his proposed and imposed removal.
¶23 While it is true that the proposing and deciding officials may not have had
actual knowledge of the appellant’s protected whistleblowing activity, an
appellant also may demonstrate that a protected whistleblowing disclosure or
whistleblowing activity was a contributing factor in a personnel action that the
agency either took or threatened to take by proving that the official taking the
action had constructive knowledge of the protected whistleblowing disclosure or
activity. Aquino v. Department of Homeland Security , 121 M.S.P.R. 35 , ¶ 19
(2014). An appellant may establish an official’s constructive knowledge of a
protected whistleb lowing disclosure or activity by demonstrating that an
individual with actual knowle dge of the disclosure or activity influenced the
official accused of taking the retaliatory action. Id.
16
¶24 The proposing official stated that he had been selected to provide the
appellant an independent review outside of his supervisory chain. IAF, Tab 1
at 7. However, the proposal and decision came about after the appellant’s
placement on the PIP. Both the proposal and decision repeatedly mentioned the
appellant’s first -line supervisor, her assessment of the appellant’s work, and his
failure to succeed, despite her willingness to meet with and assist him. Id.
at 8-15, 23 -33. Considering that the proposal a nd decision are so intertwined
with the PIP and the appellant’s first -line supervisor, we find that the appellant
has nonfrivolously alleged that the proposing and deciding officials had
constructive knowledge of his protected whistleblowing activity.11
¶25 Because we conclude that the appellant has made a nonfrivolous allegation
that his protected whistleblowing activity under 5 U.S.C. § 2302 (b)(9)(C) was a
contributing factor in the agency’s decision t o place him on a PIP , propose his
removal, and remove him, the Board has jurisdiction over this appeal , and he is
entitled to a hearing on the merits. See Salerno , 123 M.S.P.R. 230 , ¶ 14. We
thus remand the appeal to the regional office for further adjudication consistent
with this Remand Order.12
11 The appellant stated that the deciding official probably had actual knowledge of one
of his OIG complaints as he oversaw the agency component involved in the complaint.
IAF, Tab 16 at 20 -21. Because we find that the appellant has established jurisdictio n
over his allegation that he was removed in retaliation for his whistleblowing activity on
the basis of the deciding official’s constructive knowledge of that activity, we need not
address this contention.
12 The remand initial decision will incorporate the findings from this order and provide
a notice of appeal rights for all claims raised by the appellant.
17
ORDER
¶26 For the reasons discussed ab ove, 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 | VAN_FOSSEN_LEWIS_E_SF_1221_17_0403_W_1_REMAND_ORDER_2053619.pdf | 2023-07-26 | null | SF-1221 | NP |
2,850 | https://www.mspb.gov/decisions/nonprecedential/TAMAYO_ALECIA_B_AT_1221_17_0449_W_1_FINAL_ORDER_2053626.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALECIA B. TAMAYO,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-1221 -17-0449 -W-1
DATE: July 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alecia B. Tamayo , Stockbridge, Georgia, pro se.
Rebecca E. Pope , Esquire, Atlanta, Georgia, 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 (IRA) appeal based on 5 U.S.C.
§ 2302 (b)(8) for lack of jurisdiction. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one tha t the Board has determined does not add
significantly to the 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
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. Th erefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify that the appellant also failed to establish Board jurisdiction
based on 5 U.S.C. § 2302 (b)(9) , we AFFIRM the initi al decision.
BACKGROUND
¶2 The appellant served as a Supervisory Transportation Security Officer. On
or about March 13, 2 015, she filed a complaint with the Office of Special Counsel
(OSC) , OSC Docket No. MA-15-3045, in which she claimed that she made a
numb er of protected disclosures to management officials in which she alleged
discrimination based on sex, disability, and age, and retaliation for engaging in
equal employment opportunity (EEO) activity ,2 and that those disclosures
evidenced on the agency’s part a violation of law, rule, or regulation, gross
mismanagement , and an abuse of authority. Initial Appeal File (IAF), Tab 1
at 72. On April 22, 2015, OSC advised the appellant that it does not take action
2 As of the time the appellant filed this OSC complaint, she had filed two EEO
complaints. She subsequently filed three more.
3
on allegations of discrimination and retaliation for filing EEO compl aints and that
therefore it was closing its file.3 Id. at 79.
¶3 On or about July 4, 2016, the appellant filed a second complaint with OSC ,
OSC Docket No. MA-16-4467 .4 On February 14, 2017, OSC advised her of its
preliminary determinati on to close its inquiry into the complaint . IAF, Tab 1
at 213-14. It described the appellant’s complaint as consisting of allegations that
agency officials discriminated against her based on sex, age, and disability ;
retaliated against her for engaging i n EEO activity ; and subjected her to
harassment and disparate treatment in retaliation for disclosing to agency
leadership that it lacked accountability. Id. OSC stated that it would take no
further action on the appellant’s allegations of discrimination and retaliation for
engaging in EEO activity , explaining that such matters are more appropriately
resolved through the EEO process. Id. at 213. Regarding the appellant’s
harassment and disparate treatment claim, OSC indicated that it considered it as a
potential claim of retaliation for whistleblowing in violation of 5 U.S.C.
§ 2302 (b)(8), but found that it could not conclude that she had made a protected
disclosure, and that therefore it found no basis for further investigation of the
matter as a violation of that statutory provision. OSC did, however, allow the
appellant an opportunity to submit further comment. Id. at 214.
¶4 In her response to OSC , the appellant repeated the claims she made in her
first complaint that she made disclosures that evidenced the agency’s violation of
law, rule, or regulation, gross mismanagement, and abuse of authority. Id. at 25.
She argued that, in reprisal for her disclosures, the agency issued her a n “untrue”
letter of counseling (LOC) on August 6, 2016, based on “Inappropriate
3 Because the appellant had not alleged retaliation for whistleblowing, OSC did not
provide her with rights to file an IRA appeal before the Board, IAF, Tab 1 at 79.
4 The appellant did not submit a copy of this complaint into the record in her IRA
appeal.
4
Comments ,” id. at 26, 29, and denied her “fair” ratings and performance reviews
which, in turn, prevented her from receiving promotions and other employment
opportunities . Id. at 27. The appellant also claimed that some of these adverse
agency decisions were due to her having filed her first and second OSC
complaint s. Id. at 28. With her response to OSC , the appellant submitted various
documents from her EEO complaints. Id. at 45 -52. On April 4, 2017, OSC
upheld its earlier determination to close its file and apprised the appellant of her
opportunity to file an IRA appeal with the Board.5 Id. at 12 -15.
¶5 In her IRA appeal, the appellant claimed that , by her filings, she disc losed
that the agency violat ed the Civil Rights Act and the Age Discrimination in
Employment Act and committed other prohibited personnel practices including
disability discrimination ; that the agency violated her rights as a “known” EEO
complainant ; that she complained to leadership about its lack of accountability ,
and that, under 5 U.S.C. § 2302 (b)(8) , all of these disclosures evidenced on the
agency’s part violation s of law, rule, and regulation , gross mismanagement, and
abuse of authority . She noted her two OSC complaints and appeared to allege
retaliation based on them. She repeated her claim that, because of her
disclosures, she received an “untrue” LOC , and was denied fair ratings and
reviews, leading to her being denied promotional and other employment
opportunities. IAF, Tab 1 at 2 , 7-11. She requested a hearing. Id. at 1. With her
appeal, the appellant submitted in excess of 200 pages of attachmen ts including
copies of her correspondence with OSC regarding her complaints, id. at 14 -21,
30-31, 39 -40, 67-80, 194 -202, 213 -18; and documents relating to her allegations
5 Regarding the appellant’s claims that agency officials committed pr ohibited personnel
practices unrelated to alleged retaliation for whistleblowing, OSC advised her that she
could request its Disclosure Unit to review them, IAF, Tab 1 at 14, and she did so,
although without success, IAF, Tab 10 at 40 -43.
5
of discrimination and her EEO complaints, id. at 22 -24, 34-38, 41 , 45-52, 83 -127,
142-52, 174 -78, 221 -27.6
¶6 The administrative judge issued a thorough order on jurisdiction and proof
requirements in connection with the appellant’s IRA appeal. IAF, Tab 5. The
appellant’s 270 -page response consisted largely of documents she already had
subm itted. IAF, Tab 10 at 12 -86, Tabs 11 -12. The agency urged that the appeal
be dismissed for lack of jurisdiction. IAF, Tab 10 at 4-10.
¶7 In an initial decision based on the written record, the administrative judge
found that the appellant failed to make a nonfrivolous allegation that she engaged
in whistleblowing activity by making a protected disclosure. IAF, Tab 13, Initial
Decision (ID) at 6 -8. Specifically, the administrative judge found that the alleged
violations refer to violations of EEO statutes and policies as they related to the
appellant , and that such allegations do not constitute protected disclosure s under
5 U.S.C. § 2302 (b)(8). Further, t he administrative judge summarily found that
the appellant’s allegations did not fall under the expanded coverage of the
Whistleblower Protection Enhancement Act of 2012 (WPEA) , Pub. L. No. 112 -
199, 126 Stat. 1465 . ID at 7. A s such , the administrative judge dismissed the
appeal for lack of jurisdiction. ID at 1, 8.
¶8 The appellant has filed a petition for review, generally reasserting the
claims she made below, Petition for Review (PFR) File, Tab 1, and the agency
has responded in opposition , PFR File, Tab 3.
ANALYSIS
¶9 The Board has jurisd iction over an IRA appeal if the appellant exhausts her
administrative remedy before OSC and makes nonfrivolous allegations that
(1) she made a disclosure described under 5 U.S.C. § 2302 (b)(8) or e ngaged in
activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), ( B), (C), or (D); and (2) the
6 The appellant s ubmitted a number of these documents in duplicate.
6
disclosure was a contributing factor in the agency’s decision to take or fail to take
a personnel actio n as defined by 5 U.S.C. § 2302 (a). Linder v. Department of
Justice , 122 M.S.P.R. 14, ¶ 6 (2014); see 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1).
¶10 Under 5 U.S.C. § 1214 (a)(3) , an employee is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3 ,
¶ 6 (2014), aff’d , 626 F. App’x 261 (Fed. Cir. 2015). To satisfy this requirement,
an appellant must articulate to OSC the basis for her request for corrective action
“with reasonable clarity and precision.” Id. (quoting Ellison v. Merit Systems
Protection Board , 7 F.3d 1031 , 1037 (Fed. Cir. 1993)). An appellant may
demonstrate exhaustion of her OSC rem edy through her initial OSC complaint
and other written correspondence to and from OSC concerning her allegations.
Benton -Flores v. Department of Defense , 121 M.S.P.R. 428 , ¶ 6 (2014).
¶11 Because th e administrative judge did not, in her initial decision, address the
initial jurisdictional issue of exhaustion , we do so now. Based on our review, we
find that , in her second OSC complaint, the appellant exhausted her
administrati ve remedies regarding her claim that, in violat ion of
section 2302(b)(8), the agency retaliated against her for her alleged protected
disclosures regarding the agency’s violation of EEO statutes relating t o
discrimination and retaliation for engaging in EEO activity , and her claim that she
was subjected to harassment for disclosing to agency leadership that it lacked
accountability . IAF, Tab 1 at 2, 7 ‑11, 213 -14.
¶12 However, as to the first of these two cla ims, the Board recently reiterated its
long -standing precedent and that of the U.S. Court of Appeals for the Federal
Circuit to the effect that disclosures that oppose practices made unlawful by
Title VII do not constitute protected disclosure s under section 2302(b)(8) , and the
Board further found that the WPEA does not extend the coverage of
whistleblower protection statutes to Title VII -related matters . Edwards v.
7
Department of Labor , 2022 MSPB 9 , ¶¶ 10-23, aff’d , No. 2022 -1967, 2023 WL
4398002 (Fed. Cir. July 7, 2023) .
¶13 Regarding the appellant’s allegation that the agency subjected her to
harassment in retaliation for disclosi ng to agency leadership that it lacked
accountability, the Board has held that “vague, conclusory, unsupported, and pro
forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading
standard needed to establish the Board ’s jurisdiction over an IRA appeal .” El v.
Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015) , aff’d , 663 F. App’x 921
(Fed. Cir. 2016) ; see Keefer v. Department of Agriculture , 82 M.S.P.R. 687, ¶ 10
(1999) (stating that conclusory allegations lacking in specificity that the appella nt
has made protected disclosures do not constitute a nonfrivolous allegation of
jurisdiction in an IRA appeal ). Here, the appellant’s statement that agency
leadership lacked accountability is vague and does not reflect a disclosure of a
matter protected by 5 U.S.C. § 2302 (b)(8). We therefore find that the appellant
has failed to raise a nonfrivolous allegation that she made a protected disclosure
under 5 U.S.C. § 2302 (b)(8) .
¶14 We further find that, in her second OSC complaint and in her
correspondence to OSC following that filing, the appellant exhausted her
administrative remedies regarding her claim that the agency retaliated a gainst her
for filing OSC complaints. IAF, Tab 1 at 2, 7 -11, 28. The whistleblower
protection statutory scheme includes as protected activity cooperating with or
disclosing information to the Inspector General of an agency or the Special
Counsel. 5 U.S.C. § 2302(b)(9)(C).7 Under this broadly worded provision,
7 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115 -91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the U.S. Code, including section 2302(b)(9)(C) to include as protected a disclosure to
any other component responsible for internal investigation, but our decision in this
appeal would be the same under both pre - and post -NDAA law.
8
disclosures of information to OSC are protected regardless of their content, so
long as such disclosures are made “in accordance with appl icable provisions of
law.” Fisher v. Department of the Interior , 2023 MSPB 11 , ¶ 8. Under the
circumstances , we find that the appellant nonfrivol ously alleged that she engaged
in protected activity under 5 U.S.C. § 2302 (B)(9)(C) when she filed her OSC
complaints.
¶15 The next jurisdictional inquiry is whether the appellant made a nonfrivolous
allegation that the protected activity she engaged in was a contributing factor in
the agency’s decision to take or fail to take a personnel action. Corthell v.
Department of Homeland Security , 123 M.S.P.R. 417 , ¶ 8 (2016). One way an
appellant may satisfy the contributing factor element at the jurisdictional stage is
by making nonfrivolous allegations that the o fficial (s) taking the personnel
action (s) knew of the protected activity and that the personnel action (s) occurred
within a period of time such that a reasonable person could conclude that the
activity was a contributing factor in the personnel action (s), which is known as
the “knowledge -timing” test. See 5 U.S.C. § 1221 (e)(1); Carney v. Department of
Veterans Affairs , 121 M.S.P.R. 446 , ¶ 7 (2014).
¶16 We find that the appellant ’s allegation that her August 6, 2016 LOC , which
led to her being denied “fair” ratings and performance reviews , which in turn led
to her being denied promotions and other employment opportunities, all occurred
not long after her March 13, 2015 OSC complaint and her July 4, 2016 OSC
complaint, and that she therefore nonfrivolously alleged that she met the timing
part of the test. Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶ 21
(2015) (stating that a personnel action taken within approximately 1 to 2 years of
the appellant ’s disclosures satisfies the knowledge/timing test). However, while
she allege d that various agency officials were aware of what she described as
disclosures under section 2302(b)(8), IAF, Tab 1 at 8 -11, Tab 10 at 17-21, she did
not nonfrivolousl y allege that any officials involved in these personnel actions
were aware of her OSC complaints. She therefore has failed, under the
9
knowledge/timing test, to nonfrivolously allege that her protected activity under
section 2302(b)(9)(C) was a contributin g factor in any personnel action taken
against her. Stiles v. Department of Homeland Security , 116 M.S.P.R. 263, ¶ 23
(2011) (finding that the appellant failed to establish contributing factor through
the knowledge/timing test whe n he failed to show that any of the officials
involved in his nonselection were aware of his protected disclosure ).
¶17 The knowledge/timing test is not the only way for an appellant to satisfy the
contributing factor standard. Id., ¶ 24. If the appellant fails to satisfy that test,
the Board shall consider other evidence, such as that pertaining to the str ength or
weakness of the agency’ s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
whether those individuals had a desire or motive to retaliate against the appellant.
Id. Here, e ven if the individuals named in the appellant’s second OSC complaint
were involved in the LOC or the performance ratings she received, her conclusory
allegations that the LOC was “untrue” and that her ratings and performance
evaluations were not “fair” do not meet the nonfrivolous pleading standard
required to establish jurisdiction in an IRA appeal , see El , 123 M.S.P.R. 76 , ¶ 6;
Keefer , 82 M.S.P.R. 687 , ¶ 10, and she also has failed to nonfrivolously allege
that those individuals had a motive to retaliate against he r. Nor can we find from
the written record other evidence to support the appellant ’s allegation s. Stiles ,
116 M.S.P.R. 263 , ¶ 24. We conclude therefore that the appellant failed to
nonfrivolously allege that she engaged in protected activity under 5 U.S.C.
§ 2302 (b)(9)(C) that was a contributing factor in a covered personn el action.
¶18 Based on the appellant ’s failure to establish Board jurisdiction over her IRA
appeal, it was properly dismissed.
10
NOTICE OF APPEAL RIG HTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this m atter. 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
summar y 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
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).
8 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.
11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 a ccept 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 before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
12
entitled to representation by a court ‑appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
13
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt 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 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
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Board neither endorses the services provided by any attorney nor warrants that
any attorne y 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 | TAMAYO_ALECIA_B_AT_1221_17_0449_W_1_FINAL_ORDER_2053626.pdf | 2023-07-26 | null | AT-1221 | NP |
2,851 | https://www.mspb.gov/decisions/nonprecedential/HENDERSON_GAYLYN_AT_1221_20_0827_W_2_FINAL_ORDER_2053634.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GAYLYN HENDERSON,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
AT-1221 -20-0827 -W-2
DATE: July 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gaylyn Henderson , Atlanta, Georgia, pro se.
Jennifer Smith , Esquire, Washington, D.C., for the agency.
Keith A. Eichenholz , Esquire, Atlanta, Georgia, 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 , which
dismissed her individual right of action appeal for lack of jurisdiction . 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 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
for Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 While the petition for review was pending, the parties submitted a copy of a
settlement agreement, signed and dated by the appellant on May 10 , 2023, and by
the agency on May 11 , 2023. PFR File, Tab 6 at 4-12. The document provides,
among other things, t hat the appellant agreed to voluntarily withdraw “ any and
all actions raised or pending before the Merit Systems Protection Board ” in
exchange for the promises made by the agency. Id. at 5-10.
¶3 Before dismissing a matter as settled, the Board must decide w hether 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 th e
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 and
understand its terms . PFR File, Tab 6 at 4-12. We further find that the parties
do not intend to enter the settlement agreement into the record fo r enforcement
by the Board . Although the agreement itself does not express the intent of the
parties on the issue of its enforceability , the agency indicated in its submission
that the parties do not want the agreement to be entered into the record for
enforcement purposes . Id. at 3. As the parties do not intend for the Board to
enforce the terms of the settlement agreement, we ne ed not address the additional
considerations regarding enforcement , and we do not enter the settlement
agreement into the record for enforcement. Accordingly, we find that dismissing
the appeal with prejudice to refiling (i.e., the parties normally may not refile this
appeal) is appropri ate under these circumstances.
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 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 yo ur particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 mos t 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 th e court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fed eral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any atto rney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is app ealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this dec ision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
5
race, color, religion, sex, national origin, or a di sabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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 th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mus t be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices des cribed in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 th e U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. C ourt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for M erit 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 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
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 appeal s can be 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 | HENDERSON_GAYLYN_AT_1221_20_0827_W_2_FINAL_ORDER_2053634.pdf | 2023-07-26 | null | AT-1221 | NP |
2,852 | https://www.mspb.gov/decisions/nonprecedential/STROHL_SUZANNE_V_DC_0752_14_0928_I_1_FINAL_ORDER_2053704.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUZANNE V. STROHL,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -14-0928 -I-1
DATE: July 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward H. Passman , Esquire, Silver Spring, Maryland, for the appellant.
Kevin Greenfield , Lisa Wischkaemper , and Loraine Kovach -Padden ,
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
affirmed her removal . For the reasons discussed below, we GRANT the
appellant’s petition for review and REVERSE the initial decision . The
appellant’s remov al is NOT SUSTAINED .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 agency employed the appellant as a General Engineer with the Test
Resource Management Center (TRMC), a Department of Defense Field Activity.
Initial Appeal File (IAF), Tab 5 at 13. On January 17, 2013, the appellant began
an extended absence from the workplace. Id. at 99. For the next several months,
the appellant provided multiple medical notes to her supervisor indicating that she
had received medical treatment and would be unable to work for the next month.
IAF, Tab 34 at 280 -295. On November 14, 2013, the appellant’s supervisor
ordered her to either return to duty by November 25, 2013, request a reasonable
accommodation, or submit a resignation letter. IAF, Tab 5 at 51 -52.
¶3 On November 20 , 2013, the appellant s ubmitted a letter requesting
reasonable accommodation in the form of a reassignment and a new supervisor ;
she claimed that working in a hostile environment had caused her emotional
distress and had impacted her ability to return to work. Id. at 32 -34. On
December 9, 2013, the agency requested that the appellant provide additional
documentation to support her reasonable accommodation request. Id. at 36 -40.
The appellant provided additional documentation on January 6, 2014. Id. at 41.
On March 25, 2014, the agency’s Reasonable Accommodation Branch Chief
informed the appellant of the agency’s decision on her accommodation request.
The agency determined that the appellant was a qualified individual with a
disability, and it offered her the accommodations of teleworking 2 days per week,
changing her schedule to a compressed work schedule, and modifying her direct
chain -of-command to minimize her contact with the individuals she alleged to be
creating a hostile work environment. Id. at 42-44
¶4 On April 1, 201 4, the appellant’s representative responded to the agency’s
offer of reasonable accommodation, indicating that the only viable option for
accommodating the appellant was a “mutually agreeable reassignment.” Id. at 45 .
On April 16, 2014, t he agency acknow ledged the appellant’s refusal of its offered
3
accommodation and indicated that it did not have a duty to provide the appellant
with a new supervisor as a reasonable accommodation. Id. at 46.
¶5 On April 23, 2014, the appellant’s supervisor proposed the appel lant’s
removal for excessive absenteeism. Id. at 47 -49. While her proposed removal
was pending, the appellant received and accepted an offer of employment from
the Department of the Navy. Although the Department of the Navy contacted the
agency and requ ested that it provide a release date for the appellant, the agency
did not release the appellant, reassign her, or transfer her. IAF, Tab 46 at 33 -34.
Instead, the agency removed the appellant effective June 30, 2014. The agency
stated in its removal de cision that the appellant did not report to work in any
capacity after January 17, 2013, and that she failed to provide sufficient medical
documentation specifying the extent of her incapacity to return to work or
providing an expected return to duty date. IAF, Tab 5 at 14 -18.
¶6 On appeal to the Board, the appellant contested the charge and
reasonableness of the penalty and alleged that the action was based on reprisal for
whistleblowing, disability discrimination, and retaliation for filing equal
employme nt opportunity (EEO) complaints. IAF, Tab 1 at 2 -3, Tab 49 at 5 -9.
After a hearing, the administrative judge affirmed the removal. IAF, Tab 64,
Initial Decision (ID) at 2, 29. The administrative judge found that the agency had
proven its charge by prep onderant evidence in light of the appellant’s stipulation
that she had been absent from duty based on conditions beyond her control for
17 months. ID at 5. The administrative judge also found that the agency had
proven a nexus between the sustained charg e and a legitimate Government
interest and considered the relevant factors in imposing a reasonable penalty. ID
at 5-7.
¶7 The administrative judge further found that the appellant did not prove
reprisal for whistleblowing because she did not prove that he r disclosures to the
Inspector General and other agency officials were protected and did not prove
that the one arguably protected disclosure she did make, alleging that the agency
4
had improperly stored employee performance appraisals and related personall y
identifiable information on an open share drive accessible to all employees, was a
contributing factor in her removal. ID at 7 -22. The administrative judge found
that the appellant did not prove disability discrimination because she did not
show that t he agency treated her in a disparate manner compared to any
comparator who engaged in similar conduct and did not show that the agency
failed to accommodate her conditions. ID at 22 -28. Regarding accommodation,
the administrative judge found that the age ncy searched for vacant positions but
could identify no position for which the appellant qualified. ID at 25 -28.
Finally, the administrative judge found that the appellant did not prove retaliation
for filing EEO complaints. ID at 29.
¶8 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded, and the appellant has replied. PFR File,
Tabs 3 -4.
ANALYSIS
The agency failed to prove its charge.
¶9 To prove a charge of excessive absence, an agency must estab lish that
(1) the employee was absent for compelling reasons beyond her control so that
agency approval or disapproval of leave was immaterial because the employee
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 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). The Board has held that a removal for excessive
absences is not justifi ed when the agency has failed to show that the appellant’s
absence constituted a burden on the agency or its employees. Walker v.
Department of the Air Force , 24 M.S.P.R. 44, 45-47 (1984).
5
¶10 Under the particular circumstances here, we find that the appellant’s
extended absence did not justify her removal. The agency knew before it
removed the appellant that the Department of the Navy had requested that the
appellant be released for employment in that agency. IAF, Tab 46 at 33 -34.
Thus, the appellant’s absences had a foreseeable end at the time the agency
removed her. See Edwards v. Department of Transportation , 109 M.S.P.R. 579,
¶ 17 (2008) (finding that a removal based on unavailability for duty due to
incapacitation was not warranted when t he absence at issue had a foreseeable end
at the time of the removal). We therefore find that the agency failed to prove its
charge and the appellant’s removal is not sustained.2
The appellant proved that the agency discriminated against her based on
disability.
¶11 The appellant raised disability discrimination based on both disparate
treatment and a failure to provide reasonable accommodation. As to the disparate
treatment claim, a t the time that the administrative judge issued the initial
decision in this case, the Board’s case law provided that the framework set out in
McDonnell Douglas Corp oration v. Green , 411 U.S. 792 (1973) , was inapplicable
to Board proceedings. Savage v . Department of the Army , 122 M.S.P.R. 612 , ¶ 46
(2015). However, while this case was pending on petition for review, the Board
overruled Savage in that regard and held that the McDonnell Douglas framework
is one of several methods by which an appellant may prove a claim of disparate
treatment discrimination in a Board appeal. Pridgen v. Office of Management and
Budget , 2022 MSPB 31 , ¶¶ 23 -25, 42 . We therefore analyze the appellant’s
disparate treatment disability discrimination claim pursuant to Pridgen .
2 Although we need not reach the issue of nexus given our finding as to the charge, we
note that removing an employee for nondisciplinary reasons when another Federal
agency is seeking to hire that e mployee does not appear to promote the efficiency of the
service. See Yee v. Department of the Navy , 121 M.S.P.R. 686 , ¶¶ 10-15 (20 14)
(defining “ service” in the phrase “efficiency of the service” to include the civil service
as a whole , not just the employing agency).
6
¶12 In McDonnell Douglas , 411 U.S. at 802 -04, the U.S. Supreme Court held
that to establish a claim of prohibited employment discrimination, the employee
first must establish a prima facie case; the burden of going forward then shifts to
the agency to articul ate a legitimate, nondiscriminatory reason for its action; and,
finally, the employee must show that the agency’s stated reason is merely a
pretext for prohibited discrimination. Under this framework, an employee may
establish a prima facie case of prohib ited discrimination by introducing evidence
to show (1) that she is a member of a protected group; (2) that she suffered an
appealable adverse employment action; and (3) that the unfavorable action gives
rise to the inference of discrimination. Hodges v. Department of Justice ,
121 M.S.P.R. 337 , ¶ 19 (2014) (citing McDonnell Douglas , 411 U.S. at 796, 802
(stating that an individual alle ging nonselection based on race may establish his
prima faci e case by “s howing (i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that,
after his rejection, the position remained open and the employer continued to seek
applica nts from persons of complainant’ s qualifications ”)).
¶13 Here, the appellant has established a prima facie case. Specifically, it is
undisputed that she was disabled and was removed by the agency, thereby
satisfying the first two elements. Regarding the third element, the agency chose
to remove the appellant despite knowing that another agency was seeking a
release that would enable the a ppellant to transfer into another position . A
delayed or denied release date can be the subject of a discrimination or retaliation
complaint. See, e.g., Montgomery v. Department of Transportation , EEOC
Appeal No. 0120064430, 2008 WL 1744021 , *1 (Apr. 11, 2008) (finding that the
postponement of the appellant’s release date triggered the time limit for filing a
discrimination complaint); Black v. Department of Transportation , EEOC Appeal
No. 01A45917, 2005 WL 2137500 , *1-*3 (Aug. 24, 2005) (conc luding that
delaying a complainant’s release from one position to another within the agency
7
was pretextual) ; Thompson v. Department of the Air Force , EEOC Appeal No.
01900934, 1990 WL 711389 , *4-*5, *7-*9 (July 20, 1990) (finding that an agency
retaliated against an employee who was awaiting release to a different position
within the agency by suspending her and then informing the selecting official of
her suspension, which caused him to withdraw the job offer) . In addition, the
agency did not reassign the appellant to a vacant position , even though that is a
form of reasonable accommodation under the E qual Employment Opportunity
Commission’s regulations. 29 C.F.R. § 1230.2 (o)(2) (ii). Under the
circumstances here, we find that the agency’s decision to remove the appellant
without exploring the possibility of a release or reassigning her gives rise to an
inference of discrimination.
¶14 Once the appellant has established a prima facie case, th e burden shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of C ommunity Affairs v. Burdine, 450 U.S. 248 , 253 (1981).
Here, the Director of Administration testified that she would have been happy to
help with a reassignment f or the appellant, but that the a gency had no vacant
positions and was further being subjected to downsizing due to Congressional
budge tary constraints, limiting the agency’s ability to create any new positions.
Hearing Tran script, May 23, 2016 at 215 -18. This meets the agency’s burden of
production under Burdine.
¶15 Turning to the pretext analysis, a complainant can show pretext in two
ways, “either . . . by persuading the court that a discriminatory reason more likely
motivated the employer or . . . by showing that the employer’s proffered
explanation is unworthy of credence.” Burdine , 450 U.S. at 256. The credibility
of the explanation can be called into question if it is unduly vague, appears to be
an after -the-fact explanation, or appears otherwise fabricated (e.g., the
explanation shifts, or inconsistent reasons are given). Pamila R. v. United States
Postal Service, EEOC Appeal No. 0120160810 , *4 (2018). Here, if budgetary
constraints were the reason the agency could not reassign the appellant internally ,
8
there would be no reason for the agency to refuse to provide the release to the
Department of the Navy . Moreover, the Director o f Administration’s testimony
regarding reassignment is inconsistent with the record . Specifically, in response
to the appellant’s request for a reassignment as an accommodation, the agency
rejected the idea and cut off the interactive process without cond ucting a search
for vacant positions. IAF, Tab 5 at 48. The agency’s failure to provide the
appellant with a release under the circumstances and its shifting explanations
indicate that its proffered excuse was pretext for disability discrimination.
Acco rdingly, we find that the appellant proved that her disability was a but -for
cause of her removal and she is entitled to full relief for her claim of disability
discrimination . See Pridgen , 2022 MSPB 31 , ¶¶ 24 n.5, 40, 42.3
The appellant failed to prove retaliation for prior EEO activity.
¶16 Regarding the appellant’s cla im of retaliation for filing prior EEO
complaints, the administrative judge found that the appellant presented no
evidence in support of that claim and therefore failed to meet her burden of proof.
We address that claim here to a pply the correct legal sta ndard.
¶17 The appellant alleged in her prior EEO complaint that the agency had
discriminated against her based on sex and disability. IAF, Tab 5 at 12. Thus,
she engaged in activity protected under both Title VII and the Rehabilitation Act
of 1973 (the Reha bilitation Act) . The Board in Pridgen held that retaliation
claims under Title VII and the Rehabilitation Act are subject to different
causation standards. Specifically, the Board held that claims of retaliation for
opposing discrimination in violation o f Title VII are analyzed under the same
framework used for Title VII discrimination claims , which requires proof that a
3 As to the appellant’s claim that she was denied a reasonable accommodation for her
disability, we question whether the agency properly engaged in the interactive process.
However, we find it unnecessary to resolve that question under the unique
circumstances here because it appears that any relief for that claim would overlap with
the appellant’s relief for her proven status -based disability discrimination claim.
9
prohibited consideration was a motivating factor in the agency’s decision .
Pridgen , 2022 MSPB 31 , ¶¶ 20-22, 30. However , the Board held that a n
appellant alleging retaliation for activity protected under the Rehabilitation Act
must prove that such retaliation w as a “but -for” cause of the agency’s action to be
entitled to any relief . Id., ¶¶ 44-46. We have applied the applicable standards
under Pridgen and find no reason to disturb the administrative judge’s
determination that the appellant failed to prove her claim of retaliation for prior
EEO activity under either standard.
The appellant has not shown that the administrative judge erred in analyzing h er
whistleblower reprisal claim.4
¶18 The appellant contends on review that the administrative judge applied the
wrong standard when he found that a reasonable person “would” not have
believed that the appellant’s disclosures violated a law, rule, or regulatio n or met
any of the other criteria set forth at 5 U.S.C. § 2302 (b)(8). PFR File, Tab 1 at 19,
26. The appellant asserts that the administrative judge should have instead
determined whether a reas onable person with the same information “could” have
reached that conclusion. Id.
¶19 An employee who has the authority to take any personnel action shall not,
with respect to such authority, take such a personnel action because of any
disclosure of informati on that the employee “reasonably believes” evidences any
violation of law, rule, or regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety. 5 U.S.C. § 2302 (b)(8). Citing to the court’s decision in Lachance v.
White , 174 F.3d 1378 , 1380 -81 (Fed. Cir. 1999), the administrative judg e
correctly explained that, in determining whether an employee’s belief that a
disclosure was protected was reasonable, the test is whether “a disinterested
4 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
10
observer with knowledge of the essential facts known to and readily ascertainable
by the employee c ould reasonably conclude ” that the information disclosed
evidences one of these categories of wrongdoing. ID at 10. Nevertheless, the
administrative judge proceeded to find, regarding several of the appellant’s
disclosures, that a disinterested observer “would” not reasonably conclude that
the disclosures were protected. ID at 10 -17, 19 -21.5
¶20 We acknowledge that the word “could,” which is the past tense of the word
“can,” generally denotes possibility, while the word “would,” which is the past
tense of the word “will,” generally implies probability. See Merriam -Webster’s
Collegiate Dictionary 164, 263, 1361 (10th ed. 2002). We also note, however,
that our reviewing court and the Board have occasionally used the term “would”
in connection with the reas onable belief test. See Herman v. Department of
Justice , 193 F.3d 1375 , 1379 -80 (Fed. Cir. 1999) (determining that “a reasonable
person would not believe” the appellant’s disc losure evidence d a violation of an
agency directive) ; Sinko v. Department of Agriculture , 102 M.S.P.R. 116 , ¶ 17
(2006) (stating tha t an appellant failed to nonfrivolously allege that a reasonable
person “would believe” that his disclosures evidence d gross mismanagement or a
gross waste of funds ). In any event, we find that, for the reasons explained by the
administrative judge, ID at 10 -22, which included his determination that the
essential facts necessary for a reasonable person to arrive at such conclusions
were missing in several instances, the appellant did n ot show that a disinterested
observer reasonably could have concluded that these disclosures evidenced a
violation of law, rule, or regulation, or any of the other circumstances set forth at
5 U.S. C. § 2302 (b)(8).
5 The administrative judge did find, after addressin g several November 18, 2011
disclosures, that a disinterested observer, “armed with such speculative facts” and
“armed with these skeletal facts,” “could” not reasonably conclude that the disclosure
evidenced a conflict of interest or abuse of power. ID a t 8, 10 -11, 13.
11
¶21 The appellant also contends that the administrative judge “read the
transcript extremely narrowly, selecting single sentences out of pages of detail
and then finding that Appellant did not have enough evidence to reasonably
believe her all egations disclosed subject matter protected by §2302(b)(8).” PFR
File, Tab 1 at 26 (spacing as in original) . In this regard, the appellant reasserts
the general nature of her alleged protected disclosures, contends that the
allegations underlying those d isclosures were specific, detailed, and based on her
personal observations or those of an individual she trusted, and claims that a
reasonable person with that information could conclude that the allegations
disclosed a violation of law, rule, or regulatio n, or a “waste of money.” Id.
at 21-26. The appellant does not, however, identify the testimony that the
administrative judge allegedly read too narrowly, nor does she identify any
testimony or evidence contradicting the findings made by the administrati ve
judge. A petition for review must be supported by specific references to the
record. 5 C.F.R. § 1201.114 (b). The appellant has not done so regarding this
argument. Thus, she has s hown no error by the administrative judge.
¶22 Finally, the appellant asserts that, if the Board finds that her disclosures are
protected, it should also find that they were a proximate cause of her disability
and absence and, thus, a contributing factor in he r removal. PFR File, Tab 1
at 26-27. The appellant has not, however, shown that the administrative judge
erred when he found that the disclosures were not protected. Therefore, we need
not address whether those disclosures were a contributing factor in the appellant’s
removal. See Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 12 (2015)
(recognizing that , in asserting a whist leblower r eprisal affirmative defense, an
appellant must prove by preponderant evidence both that she made a protected
disclosure and that her disclosure was a contributing factor in the agency’s
personnel action); El v. Department of Commerce , 123 M.S.P.R. 76 , ¶ 13 (2015)
(declining to address an appellant’s arguments regarding the contributing factor
criterion at the jurisdictional sta ge of an individual right of action appeal when he
12
failed to nonfrivolously alleged that he made a protected disclosure) , aff’d per
curiam , 663 F. App’x 921 (Fed. Cir. 2016).
ORDER
¶23 We ORDER the agency to cancel the appellant ’s removal and to restore her
effective June 30, 2014. 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 da te of this decision.
¶24 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
decisi on. 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 i s 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.
¶25 We further ORDER the agency to tell the appellan t 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).
¶26 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 s hould include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
13
¶27 For agencies whose payroll is administered by either the National Finance
Center of th e 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 tim ely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO 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 moti on 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 REQ UEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a . The regulations may be found at 5 C.F.R. §§ 1201.201 ,
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
14
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the i nitial decision on your appeal.
NOTICE OF APPEAL RIG HTS6
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
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
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 ma tter.
15
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) 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
16
with the district court no later than 30 calendar days after your representative
receives this decision. If the action inv olves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other securi ty. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request f or review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
17
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describ ed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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
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/DFASP ayroll/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
spec ific 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, administrativ e determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, w orkers’ 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
unde r 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. | STROHL_SUZANNE_V_DC_0752_14_0928_I_1_FINAL_ORDER_2053704.pdf | 2023-07-26 | null | DC-0752 | NP |
2,853 | https://www.mspb.gov/decisions/nonprecedential/HANRATTY_FRANCIS_J_AT_0752_17_0669_I_1_FINAL_ORDER_2053113.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FRANCIS J. HANRATTY, III,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -17-0669 -I-1
DATE: July 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Howard Drew , Fort Rucker, Alabama, for the appellant.
Weston C. Harlan , Fort Rucker, Alabama, 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
affirmed his removal for sex discrimination .2 Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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 The agency used the term “gender discrimination” to describe the appellant’s conduct.
Initial Appeal File, Tab 4 at 12 , 44. As the Supreme Court held in Bostock v. Clayton
County , discrimination bas ed on “gender” is discrimination based on sex. Bostock v.
Clayton County , 590 U.S. ___, 140 S. Ct. 1731 , 1741 (2020) (holding that “it is
2
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
invo lved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under s ection 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to apply the correct legal standard to the charge of sex
discrimination , we AFFIRM the initial decision.
¶2 When, as here, an agen cy charge of discrimination does not refer to internal
agency policy, the agency must prove that the appellant’ s conduct constituted
discrimination under Title VII of the Civil Rights Act of 1964 . See Gilmore v.
Department of the Army , 87 M.S.P.R. 579 , ¶ 20 (2001) ; Yeabower v. Department
of Agriculture , 10 M.S.P.R. 386 , 389 (1982). Although the administrative judge
applied Title VII standards to her analysis of the charge, she relied on the
framework applicable when an appellant seeks to establish that discrimination
motivated an agency to take a personnel action against him. Initial Appeal File
(IAF), Tab 35, Initial Decision at 5-11. Here, the agency did not allege that the
appellant took a person nel action agains t anyone but, rather, that he engaged in
sex discrimination by making offensive remarks in the classroom. IAF, Tab 4
impossible to discriminate against a person for being homosexual or transgender
without discriminating against that individual based on sex”) . We need not,
accordingly, distinguish between sex and gender discrimination.
3
at 89-90. Thus, we modify the initial decision to apply the correct standard, still
finding that the agency proved the c harge.
¶3 Discrimination with respect to the “terms, conditions, and privileges” of
one’s employment “ includes requiring people to work in a discriminatorily hostile
or abusive environment. ” Harris v. Forklift Systems, Inc ., 510 U.S. 17 , 21
(1993). Thus, “[w] hen the workplace is permeated with discriminatory
intimidation, ridicule, and insu lt that is sufficiently severe or pervasive to alt er
the conditions of the victim’ s employment and create an abusive working
environment, Title VII is violated.” Id. Title VII does not prohibit all workplace
harassment ; rather, i t forbids only conduct th at constitutes discrimination because
of a protected category and is sufficiently severe or pervasive to alter the terms
and conditions of the victim’s employment and to create an objectively hostile
and abusive work environment . See Oncale v. Sundowner Offshore Services, Inc. ,
523 U.S. 75 , 80-81 (1998) . Accordingly , to prove the charge in this case , the
agency must prove by prepond erant evidence t hat the appellant’s conduct was
based on the victim’s sex and that i t created a hostile work environment.3 Id.;
5 C.F.R. § 1201.56 (b)(1)(ii).
¶4 This standard for determinin g whether conduct constitutes a hostile work
environment under Title VII takes a middle path between making actionable any
conduct that is merely offensive and requiring the conduct to cause a tangible
psychological injury. Viens v. Department of the Interior, 92 M.S.P.R. 256 , ¶ 9
(2002) . Conduct that is not severe or pervasive enough to create an objectively
hostile or abusive work environment —an environment that a reasonable perso n
would find hostile or abusive —is beyond Title VII’ s purview. Id. If the victim
has not subjectively perceived the environment as abusive, the conduct has not
actually alter ed the conditions of the victi m’s employment , and there is no
3 Preponderance of the evid ence 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
Title VII violation. Id. Determining whether the environment is hostile or
abusive must be made by e xamining all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it was physic ally
threatening or humiliating, or a mere offensive utterance, and whether it
unreasonably interfered with an employee ’s work performance. Id., ¶ 10. Simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the ter ms and conditions of employment.
Id.
¶5 We find no basis to disturb the administrative judge’s concl usion s that the
appellant made the comments attributed to him in specifications B through E , that
his comments were objectively offensive, and that he created a discriminatory
environment toward the female students based on their sex. See, e.g. , Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb
the administrative judge’s findings when she cons idered the evidence as a whole,
drew appropriate inferences, and made reasoned conclu sions on issues of
credibility) . In addition , considering all the facts and circumstances, we find that
Students B and C subjectively perceived the classroom environment to be hostile
and that the appellant subjected them to unwelcome conduct related to their sex
that unreasonably interfer ed with their ability to lea rn and created a hostile work
environment. See Hiebert v. Department of Transportation , EEOC Appeal No.
01A05253 , 2003 WL 21302525, at *1 -*2 (2003) (finding that sexist comments,
ridicule, and sex -based jokes in the workplace created a hostile work
environment). Therefore, we find that the agency proved that the appellant
subjected Students B and C to a hostil e work environment . On the other hand, t he
agency has not shown that Students D and E subjectively perceived the
environment to be hostile or abusive , and, consequently, specifications D and E
do not contribute to a finding of hostile work environment.
¶6 In light of the foregoing, we find that the agency proved the charge of sex
discrimination . See Burroughs v. Department of the Army , 918 F.2d 17 0, 172
5
(Fed. Cir. 1990) ( stating 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 suf ficient to sustain the charge).
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims de termines the time limit for seeking such review and 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 Sys tems 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 wis h to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your cas e by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, w hich 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 appro priate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals fo r the
Federal Circuit, you must submit your petition to the court at the fo llowing
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the F ederal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection B oard appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discriminat ion. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this de cision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the district court no later than 30 calendar days after your representative
receives this d ecision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of f ees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. 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
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.
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 P resident on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competen t jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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.
Contact information for the courts of appeals can be 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 | HANRATTY_FRANCIS_J_AT_0752_17_0669_I_1_FINAL_ORDER_2053113.pdf | 2023-07-25 | null | AT-0752 | NP |
2,854 | https://www.mspb.gov/decisions/nonprecedential/WENTLER_TYLER_L_CH_0752_17_0046_R_1_FINAL_ORDER_2053238.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TYLER L. WENTLER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-0752 -17-0046 -R-1
DATE: July 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen T. Fieweger , Esquire, Davenport, Iowa, for the appellant.
Emily L. Macey , Rock Island, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 On June 29, 2023, the Board issued a Final Order in this appeal dismissing
the petition for review a s untimely. However, due to an administrative error in
entering the appellant’s address into the Board’s case management system, the
Board served the Final Order by certified mail on an incorrect address for the
appellant. The Final Order addressed to th e appellant was returned to the Board
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
as undeliverable on July 17, 2023. We therefore REOPEN this case pursuant to
5 C.F.R. § 1201.118 to further address the timeliness of the petition for review
and serve the decision on the appellant at his proper address.
¶2 The appellant has filed a petition for review of the initial decision, which
sustained his indefinite suspension based on the suspension of his access to
classified materials . For t he 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). However, we VACATE several of the administrative judge’s
findings regarding the agency’s suspension of the appellant’s access to classified
materials, MODIFY the initial decision to find that the Board lacks jurisdiction
over such action, and AFFIRM the initial decision in all other respec ts. Except as
expressly indicated in this Final Order, the initial decision of the administrative
judge is the Board’s final decision.
BACKGROUND
¶3 As properly described in the initial decision, the appellant holds a Contract
Specialist position with the Ar my Contracting Command in Rock Island, Illinois.
Initial Appeal File (IAF), Tab 20, Initial Decision (ID) at 1. He filed a Board
appeal of the agency’s suspension of his access to classified materials, effective
October 16, 2015, and the agency’s decisio n to indefinitely suspend him without
pay pending the final adjudication of his eligibility for a security clearance,
effective December 12, 2015. Id. Based on the written record, the administrative
judge issued an initial decision affirming the agency’s actions. ID at 1-2, 11.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
3
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has failed to show good cause for the 1 -day delay in filing his
petition for review.
¶5 Generally, a petition for review must be filed within 35 days after the
issuance of the initial decision, or, if the petitioner shows that he received the
initial decision more than 5 days after the date of issuance, within 30 days after
the date he received the initial decision. 5 C.F.R. § 1201.114 (e). Here, the
administrative judge informed the appellant that the initial decision dated
February 16, 2017 , would become the Board’s final decision on March 23, 2017,
unless either party filed a petition for review by that date. ID at 11. She further
informed him that, if he received the initial decision more than 5 days after the
date of issuance, he could file a petition for review within 30 days after the date
of receipt. Id. In addition, she notified him that the 30 -day period would begin
to run upon either his or his representative’s receipt of the initial decision,
whichever occurred first. Id.
¶6 The c ertificate of service reflects that, on February 16, 2017, the initial
decision was sent both by mail to the appellant’s address as recorded in the
Board’s case management system2 and by email to his attorney, who had
registered as an e -filer. IAF, Tab 13 at 6, Tab 21; see 5 C.F.R. § 1201.14 (e)(1)
(stating that a party or representative may not file an electronic pleading with the
Board unless he or she has registered as an e -filer); 5 C.F.R. § 1201.14 (m)(2)
(explaining that Board documents served electronically on registered e -filers are
deemed received on the date of electronic submission). The appellant has not
argued that he or his attorney did not receive the initial decision. We further find
2 As noted above, supra ¶ 1, the street number of the appellant’s address was entered
incorrectly into the Board’s case management system at the time of docketing, and
therefore the initial decision was served by U.S. mail on an incorrect address. Compare
IAF, Tab 1 at 2, with IAF, Tab 21. However, there is no indication in the record that
the initial decision was returned as undeliverable.
4
that the deadline for filing the petition for review was March 23, 2017, as stated
in the initial decision. ID at 11; see 5 C.F.R. § 1201.114 (e).
¶7 The appellant filed a petition for review on March 24, 2017, one day past
the filing deadline.3 In an acknowledgment letter, the Clerk of the Board
informed the appellant that his petition for review was untimely f iled and that he
could file a motion with the Board to accept his filing as timely or to waive the
time limit for good cause. PFR File, Tab 2. The letter also stated that the motion
must be sent by April 14, 2017. Id. at 2. The appellant has not filed any
argument or evidence concerning the timeliness of his petition for review.
¶8 The Board may waive the time limit for filing a petition for review upon a
showing of good cause for the filing delay. 5 C.F.R. § 1201.114 (f)-(g). To
establish good cause, the appellant must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether
an appellant has shown good cause, the Board will consider the length of the
delay, the reasonableness of his excuse and h is showing of due diligence, whether
he is proceeding pro se, and whether he has presented evidence of the existence
of circumstances beyond his control that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his petition. Moorman v.
Department of the Army , 68 M.S.P .R. 60 , 62 -63 (1995), aff’d , 79 F.3d 1167
(Fed. Cir. 1996) (Table).
3 Although the appellant’s attorney certified that he mail ed the petition for review on
March 23, 2017, the postmark date contained on the mailing was March 24, 2017. PFR
File, Tab 1 at 5 -6. He mailed the petition to the Board’s Central Regional Office,
which then forwarded it to the Office of the Clerk of the Board. Id. at 1-2, 6. A
pleading submitted by mail generally is considered filed on the postmark date, even
when submitted to the wrong Board office. Branch v. Department of the Army ,
110 M.S.P.R. 663 , ¶¶ 6 -7 (2009); 5 C.F.R. § 1201.4 (l). Thus, we find that the filing
date of the appellant’s petition for review is the March 24, 2017 postmark date.
5
¶9 Here, although the brevity of the appellant’s 1 -day filing delay weighs in
favor of finding good cause, we find that the minimal length of the delay is
outweighed by the remaining Moorman factors. See Skaggs v. Merit Systems
Protection Board , 364 F. App’x 623, 626 -27 (Fed. Cir. 2010) (affirming the
Board’s decision finding that the appellant failed to show good cause for the
1-day delay in filing his initial appeal when his attorney was negligent)4; see also
McBurnett v. Department of the Army , 37 M.S.P.R. 395, 396 -97 (1988) (finding
that negligence on the part of the appellant’s attorney did not constitute good
cause for the 1 -day delay in filing his initial appeal). The fact that the appellant
has been rep resented by an attorney throughout the appeal weighs against a
finding of good cause. See Marcantel v. Department of Energy , 121 M.S.P.R.
330, ¶ 11 (2014) (affirming the initial decision that dismissed the appellant’s
initial appeal as untimely filed without good cause shown). We find that the
appellant ’s attorney , who filed the petition for review, was aware of the filing
deadl ine after receiving clear notice in the initial decision and was provided with
an opportunity to respond on the timeliness issue on review. PFR File, Tab 2; ID
at 11. We further find that the appellant’s failure to address the timeliness of his
petition for review and the lack of evidence of circumstances beyond his control
or of unavoidable casualty or misfortune that prevented him from filing a timely
petition for review weigh against finding good cause. See Cabarloc v.
Department of Veterans Affairs , 112 M.S.P.R. 453, ¶¶ 9 -10 (2009) (finding no
good cause for the pro se appellant’s 10 -day delay in filing a petition for review
when he failed to respond to the Clerk’s notice regarding timeliness). Therefore,
under the particular circumstances of the case, we find that the appellant has
failed to establish good cause for his untimely filing.
4 The Board has held that it may rely on unpublished decisions of the U.S. Court of
Appeals for the Federal Circuit if, as here, it finds the court’s reasoning persuasive.
E.g., Vores v. Department of the Army , 109 M.S.P.R. 191 , ¶ 21 (2008), aff’d ,
324 F. App’x 883 (Fed. Cir. 2009).
6
The suspension of the appellant’s acces s to classified information is not an
adverse action appealable to the Board.
¶10 For the following reasons, we vacate several of the administrative judge’s
findings regarding the agency’s suspension of the appellant’s access to classified
materials, and we mo dify the initial decision to find that the Board lacks
jurisdiction over such action.5 Specifically, we find that the administrative judge
erred in finding that the Board has jurisdiction to review whether the agency
committed harmful procedural error in effecting the suspension of the appellant’s
access to classified information. ID at 4. In so finding, the administrative judge
cited Rogers v. Department of Defense , 122 M.S.P.R. 671 , ¶ 7 (2015) , for the
proposition that the Board has the authority under 5 U.S.C. § 7701 (c)(2)(A) to
review whether the agency committed a harmful procedural error in suspending
his access to classified information. ID at 4. However, as the administrative
judge properly found, the suspension of the appellant’s access to classified
materials, without a loss in pay, is not an appealable adve rse action. Id.; see
5 U.S.C. §§ 7501 (2), 7512, 7513(d); Abbott v. U.S. Postal Service , 121 M.S.P.R.
294, ¶ 6 (2014) (defining a “suspension” as the temporary placement of an
employee in a nonpay, nonduty status). Thus, we find that the administrative
judge ’s reliance on Rogers , 122 M.S.P.R. 671 , ¶ 7, was misplaced .
¶11 Moreover, the Board lacks authority to review the merits of an agency’s
decision to suspend an appellant’s access to classified inform ation. Rogers ,
122 M.S.P.R. 671 , ¶ 5 ; see Jones v. Department of the Navy , 48 M.S.P.R. 680 ,
690 (finding that the Board lacks authority to review the merits of an agency’s
suspension of an appellant’s security access in an indefinite suspension appeal),
5 Although we are dismissing the appellant’s petition for review as untimely, the issue
of the Board’s jurisdiction may be raised at any time during a proceeding. Morgan v.
Department of the Navy , 28 M.S.P.R. 477 , 478 (1985); see 5 C.F.R. § 1201.115 (e).
Further, the Board has inherent authority to determine whether a matter is within its
jurisdiction. Lloyd v. Small Business Administration , 96 M.S.P.R. 518 , ¶ 16 (2004).
Therefore, we find that it is appropriate to raise the jurisdictional issue here.
7
aff’d a s modified on recons. , 51 M.S.P.R. 607 (1991), aff’d , 978 F.2d 1223
(Fed. Cir. 1992). Further, it is well settled that “employees do ‘not have a liberty
or property interest in access to classified i nformation, and the termination of that
access therefore [does] not implicate any due process concerns.’” Gargiulo v.
Department of Homeland Security , 727 F.3d 1181 , 1184 -85 (Fed. Cir. 2013)
(quoting Jones v. Department of the Navy , 978 F.2d 1223 , 1225 (Fed. Cir. 1992) ).
¶12 Therefore, we v acate the following findings regarding the agency’s
suspension of the appellant’s access to classified materials: the Board has
jurisdiction to review whether the agency committed a harmful procedural error;
the appellant failed to establish that the agen cy committed procedural error and
therefore failed to bear his burden of proving the affirmative defense of harmful
procedural error; the agency did not commit any due process violation; the agency
provided the appellant with all procedural protections; an d the action is affirmed.
ID at 2, 4, 6 -7, 10 -11. We clarify that we do not vacate any findings as they
relate to the appellant’s indefinite suspension from duty without pay. ID at 2,
10-11. Moreover, we do not vacate the administrative judge ’s analysi s of the
agency’s own regulations to the extent it is relevant to her finding that the
appellant failed to prove that the agency committed harmful procedural error in
effecting the indefinite suspension from duty without pay. ID at 5 -6, 9 n.6.
Finally, w e modify the initial decision to find that the Board lacks jurisdiction
over the agency’s suspension of the appellant’s access to classified materials,
including any claims of harmful procedural error.
¶13 Accordingly, we dismiss the petition for review as unt imely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review and the Board’s lack of jurisdiction over the suspension
of the appellant’s access to classified information as an independen tly appealable
action. Except as expressly modified by this Final Order, the initial decision
remains the final decision of the Board affirming the decision to indefinitely
8
suspend the appellant from duty without pay effective December 12, 2015.
5 C.F.R. § 1201.113 .
NOTICE OF APPEAL RIG HTS6
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 cla ims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Mer it 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 y ou wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circ uit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appe als for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protec tion Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discr imination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of t his decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 competen t jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanentl y allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Rev iew Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WENTLER_TYLER_L_CH_0752_17_0046_R_1_FINAL_ORDER_2053238.pdf | 2023-07-25 | null | CH-0752 | NP |
2,855 | https://www.mspb.gov/decisions/nonprecedential/DIMAYUGA_FELIPE_DC_0432_15_0977_I_1_REMAND_ORDER_2053247.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FELIPE DIMAYUGA,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0432 -15-0977 -I-1
DATE: July 25, 2023
THIS ORDER IS NONPRECEDENTIAL1
Lalit K. Jain , Esquire, Rego Park, New York, for the appellant.
Justin P. Sacks , Falls Church, 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
sustained his removal . For the reasons discussed below, we GRANT the petition
for review, VACATE the initial decision, and REMAND the case to the
Washington Regional Office for further adjudication in accordance with this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 Order and Santos v. National Aeronautics and Space Administration ,
990 F.3d 1355 (Fed. Cir. 2021) .
BACKGROUND
¶2 The essential facts in this appeal, as set forth by the administrative judge
and not contested on review, are that the appellant occupied a GS -15
Occupational Health Physician position. Initial Appeal File (IAF), Tab 28, Initial
Decision (ID) at 1 -2. On March 25, 2013, he was placed on a Focused
Professional Practice Evaluation (FPPE ), which served as a performance
improvement plan (PIP) , based on his failure to achieve a successful performance
level in the physician care and professional development critical elements of his
position. ID at 2. The FPPE was in place from March 24 unt il August 22, 2013.
Id. The agency removed the appellant from his position effective January 31,
2014, based on his unacceptable performance in the two critical elements of his
position. Id.; IAF, Tab 7 at 14 -16, 23 -25. The appellant contested the agenc y
actions by filing an equal employment opportunity (EEO) complaint alleging
discrimination based on race, national origin, sex, age, religion, and reprisal for
prior EEO activity . ID at 2; IAF, Tab 7 at 8-11. Following the issuance of a final
agency dec ision, the appellant timely filed an appeal with the Board. IAF, Tab 1.
¶3 After holding the appellant’s requested hearing, the administrative judge
found that the Office of Personnel Management (OPM) had approved the
agency’s appraisal plan, the agency esta blished that the appellant’s performance
standards were valid and were communicated to him, and the appellant was given
a reasonable opportunity to improve his performance by being place on the FPPE.
ID at 4 -10. The administrative judge also found that d uring the improvement
period, the appellant failed to meet the physician care and professional
development critical elements of his position. ID at 10 -14. She found further
that the appellant failed to prove his affirmative defenses of discrimination on the
bases of race, national origin, sex, age, religion, and disability , and reprisal for
prior EEO activity, and that he failed to prove that the agency committed harmful
3
procedural error by not allowing him to view the charts that it alleged contained
errors. ID at 14 -31. The appellant filed a petition for review. Petition for
Review (PFR) File, Tab 3. The agency responded to the appellant’s petition and
he replied to the agency’s response. PFR File, Tabs 5 -6.
¶4 In his petition for review, the appellant concedes that the agency established
that OPM had approved the agency’s appraisal plan. PFR File, Tab 3 at 9. He
also acknowledges that the agency established that his performance standards
were valid and that they were communicated to him, id., but sub sequently in his
petition for review contests those findings, and many other findings, as
conclusory, id. at 16. He also argues that the agency did not give him a
reasonable opportunity to improve his performance because he was not allowed to
review the c harts upon which it based the removal action, and that his
performance was acceptable. Id. at 13, 16 -20. He also contends that the
administrative judge erred in her findings regarding discrimination, reprisal for
prior EEO activity, and harmful error.2 Id. at 18 -20.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 As noted above, consistent with the Federal Circuit’s decision in Santos ,
990 F.3d at 1360 -63, we are remanding this appeal for further adjudication. In
Santos , the court held for the first time that, in add ition to the elements of a
chapter 43 case set forth by the administrative judge and discussed below, an
agency must also show that the initiation of a PIP was justified by the appellant’s
unacceptable performance before the PIP. Id. Prior to addressing the remand,
however, we address the administrative judge’s findings on the elements of a
2 Attached to the appellant’s petition for review is a treatise written by the appellant’s
counsel regarding the “Judicious Positioning System,” a theory that “Helps Injustice
Doers Pay to Insure Jus tice,” and a copy of a transcript of a traffic court proceeding that
the appellant’s counsel won for his client. PFR File, Tab 3, Attachments. These
attachments are immaterial to the disposition of the appellant’s petition for review.
4
chapter 43 appeal as they existed at the time of the initial decision and the
appellant’s arguments on review.
¶6 At the time the initial decision was issued, the Board’s case law stated that,
in a performance -based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence3 that: (1) OPM approved its performance
appraisal system and any significant changes thereto; (2) the agency
communicated to t he appellant the performance standards and critical elements of
his position at the beginning of the appraisal period; (3) the appellant’s
performance standards are valid under 5 U.S.C. § 4302 (b)(1 ); (4) the agency
warned the appellant of the inadequacies of his performance during the appraisal
period and gave him a reasonable opportunity to demonstrate acceptable
performance; and (5) the appellant’s performance remained unacceptable in one
or more of the critical elements for which he was provided an opportunity to
demonstrate acceptable performance. See 5 U.S.C. §§ 4302 (b), 7701(c)(1)(A);
Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 5 (2010); 5 C.F.R.
§ 432.104 .4
The agency proved the basis of the chapter 43 performance -based removal action
by substantial evidence under pre -Santos law.
¶7 Here, there is no dispute that the removal was effected under a performance
appraisal syst em approved by OPM. To the extent that the appellant asserts that
his performance standards are not valid and that they were not communicated to
3 The agency’s burd en of proof in an action taken under chapter 43 is “substantial
evidence,” defined as the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonabl e persons might disagree. 5 C.F.R. § 1201.4 (p). This is a
lower burden than preponderant evidence.
4 During the pendency of this appeal, the Office of Personnel Management revised
5 C.F.R. § 432.104 , Probation on Initial Appointment to a Competitive Position,
Performance -Based Reduction in Grade and Removal Actions and Adverse Act ions,
85 Fed. Reg. 65,940, 65,982 -83 (Oct. 16, 2020) . Where the revised regulations are
different from those in effect at the time of the appellant’s removal in 2014, we have
applied the 2014 version of the regulations.
5
him, his assertion is unavailing. He has presented no evidence in support of his
assertion and the record contradicts it.
¶8 The first agency standard at issue here is the appella nt’s critical element
(CE), entitled “Physician Care.” This CE required the appellant to do the
following:
Provide[], direct[], and ensure quality patient care [in agreement
with the agency’s] policies and procedures. Conduct[] all medical
surveillance a nd certification programs and examinations within the
guidelines of Navy . . . review programs per peer review guidelines
and make changes when indicated by higher authority. Provide[]
various type of pre -placement physical examination, return to work
evaluations, fitness for duty in accordance with Federal/Navy
Regulations. Provide prompt recognition evaluation and treatment of
life and limb, traumatic, and medical/surgical emergencies within the
scope of practice, clinical privileges and the limitation of the facility.
IAF, Tab 25 at 4.
¶9 The second agency standard at issue here is the appellant’s CE entitled
“Professional Development.” This CE required the appellant to do the following:
Maintain evidence based practices standards by acquiring 50
[Con tinuing Medical Education activities] within the rating period.
Maintain[] all required certifications needed to perform patient care
activities within the assigned area. Meet all mandatory hospital
training and educations requirements during this rating period.
Id.
¶10 Additionally, the agency’s CE performance standards identified its
“expectation for employee performance” for the appellant as “expert.”
Acceptable performance for an “expert” requires that he:
Deliver [] on each critical element with broad and significant impact
that was in alignment with the mission and objectives of the
organization as well as applicable authorities , standards, policies ,
procedures and guidelines anticipating and overcoming s ignificant
obstacles .
Establish [] priorities and coordinat e[] work across projects,
programs or people, balancing work demands and anticipating and
overcoming obstacles to achieve a timely and positive outcome.
6
Demonstrate [] high standards of professional conduct and represent []
the organization or work unit effectively.
Id. at 3. Unacceptable performance results when an employee who is an “expert”:
Failed to achieve all or part of the stated critical element; or
Failed in the accomplishment of priorities and coordination of work
across projects, programs or people; consistently failed to balance
work demands resulting in an untimely and unproductive product or
event; or
Demonstrated poor cooperation or inability to work with others.
Id.
¶11 We agree with the administrative judge that the appellant’s performance
standards are detailed and define the levels of performance and those definitions
apply to all of the critical elements. ID at 7. Thus, we find that the appellant was
given a “firm benchmark” toward which to aim his performance, the standard s
permitted the accurate evaluation of his job performance based on objective
criteria, and the elements properly considered sufficient objective and measurable
factors. Id.; see Towne v. Department of the Air Force , 120 M.S.P.R. 239 , ¶ 21
(2013) (stating that performance standards should be specific enough to provide
an employee with a firm benchmark toward which to aim performance and must
be sufficiently precise so as to invoke general consensus as to their meaning and
content); see also Neal v . Defense Logistics Agency , 72 M.S.P.R. 158 , 161
(1996). The appellant occupied a high -level professional position. The Board
has r ecognized that the degree of objectivity and specificity required in
performance standards depends on the nature of the job involved and that
professional and technical jobs, which require the incumbent to exercise greater
discretion and independence, are not susceptible to 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 nature. See Gree r v. Department of the Army ,
79 M.S.P.R. 477 , 483 (1998) .
7
¶12 We also agree with the administrative judge that the agency met its burde n
of proving by substantial evidence that the critical elements at issue are
reasonable, realistic, attainable, clearly stated in writing, and permitted the
accurate evaluation of job performance based on objective criteria. ID at 7.
Further, the perform ance standards informed the appellant of what was necessary
to achieve an acceptable or an unacceptable rating. Id. Therefore, we find that
the agency established that the appellant’s performance standards are valid.
¶13 Also, the appellant’s performance s tandards were communicated to him. As
the administrative judge found, the performance plan for the appellant’s position
clearly informed him of what was required to achieve an acceptable performance
rating in his position. ID at 7; IAF, Tab 25 at 1. It appears that in
November 2012,5 the appellant signed and acknowledged receipt of his
performance plan elements and standards. I AF, Tab 25 at 1. He again signed the
document on April 23, 2013, for his mid -year progress review. Id. Therefore, we
find tha t the agency established that the appellant ’s performance standards were
communicated to him.
¶14 The appellant contends that the agency did not give him a reasonable
opportunity to improve. Before initiating an action for u nacceptable performance
under 5 U.S.C. § 4303 , an agency must give the employee a reasonable
opportunity to demonstrate acceptable performance. Greer , 79 M.S.P.R. at 480.
OPM ’s regulations governing performance -based actions provide that “[a]s par t
of the employee ’s opportunity to demonstrate acceptable performance, the agency
shall offer assistance to the employee in improving unacceptable performance.”
5 C.F. R. § 432.104 (2014 ); see Gjersvold v. Department of the Treasury ,
68 M.S.P.R. 331 , 336 (1995). The employee ’s right to a rea sonable opportunity
to improve is a substantive right and a necessary prerequisite to all chapter 43
actions. Lee, 115 M.S.P.R. 533 , ¶ 3 2; Sandland v. General Services
5 The appellant electronically signed the document without providing a date for his
signature. Both rating officials signed for the document on November 26, 2012.
8
Administration , 23 M.S.P.R. 583, 590 (1984). In determining whether the ag ency
afforded the appellant a reasonable opportunity to demonstrate acceptable
performance, relevant factors include the nature of the duties and res ponsibilities
of his position, the performance deficiencies involved, and the amount of time
that is sufficient to enable him to demonstrate acceptable performan ce. Lee,
115 M.S.P.R. 533 , ¶ 32.
¶15 Here, the agency documented the appellant’s substantial performance
deficiencies and gave him an opportunity to improve prior to the agency taking a
removal action under chapter 43. The agency sta rted a review of the records that
the appellant put into the Armed Forces Health Longitudinal Technology
Application (AHLTA), the electronic medical record system used by Department
of Defense medical providers, following an incident on March 18, 2013, whe n it
discovered that he had cleared a Naval Criminal Investigative Service agent, who
was diabetic and on an insulin pump, for deployment to a war zone where insulin
pumps were not permitted. During a review of all of the medical records created
by the ap pellant regarding radiation medical examinations (RME) in February and
early March 2013, the agency found that his AHLTA notes were incomplete and
did not meet the requisite standard of care. For instance, the agency charged that
the appellant did not use the correct template and he did not ask about or
comment on required questions. Further, agency guidance required that RMEs be
signed off by an officer with certain qualifications that the appellant did not
possess. Two other patients —in the records rev iewed by the agency —had been
found physically qualified by the appellant even though their history of cancer
would have automatically disqualified them.
¶16 As a result , the appellant was placed on an FPPE during which he would be
subject to peer review and additional monitoring. IAF, Tab 7 at 28 -31. Agency
officials explained to the appellant that he was being placed on the FPPE because
he had demonstrated practice problems includin g poor understanding and
implementation of guiding regulations and standards and poor or improper
9
documentation of physical exams. Id. at 28. Initially, the FPPE was scheduled
for 3 months, and later extended for 2 more months, until August 22, 2013. IA F,
Tab 7 at 28 -31. Furthermore, the record shows that the appellant was mentored
during the evaluation period by two employees who provided him with feedback,
citing specific examples of his deficiencies. ID at 10. Under these
circumstances, we find tha t the agency properly warned the appellant of the
inadequacies of his performance and gave him a reasonable opportunity to
improve.
¶17 The administrative judge found that the agency established that, during the
improvement period, the appellant failed to mee t the physician care CE because
he cleared a diabetic patient with an insulin pump to deploy to a war zone where
military personnel with insulin pumps were not permitted, and cleared individuals
with a history of cancer as physically qualified when cancer was an automatic
disqualification. ID at 11. The agency explained that these mistakes happened
prior to March 25, 2015, the start date of the FPPE. IAF, Tab 7 at 23; IAF,
Tab 26, Hearing Compact Disc (HCD) (testimony of former Director for Branch
Clinic s, Naval Health Clinic, Quantico, Virginia). Thus, these were incidents of
unacceptable performance that occurred before the agency placed the appellant on
the FPPE.
¶18 If an employee demonstrates acceptable performance during the opportunity
to improve pe riod, the agency may not remove h im based solely on deficiencies
which preceded and triggered the improvement period. Thompson v. Department
of the Army , 122 M.S.P.R. 372 , ¶ 11 (2015); Brown v. Veterans Administration ,
44 M.S.P.R. 635 , 640 (1990). The administra tive judge noted that, generally, the
proposed removal specified the appellant’s performance deficiencies; however,
we find that she erred in sustaining the appellant’s removal solely on the basis of
the agency’s evidence of pre -FPPE performance deficienci es rather than its
evidence that he did not successfully complete the FPPE. ID at 10 -14.
10
Therefore, we have re -examined the record to determine whether the appellant
demonstrated acceptable performance during the FPPE period.
¶19 The notice of proposed remo val specified the appellant’s performance
deficiencies. IAF, Tab 7 at 23, 28 -31. When the appellant was placed on the
FPPE, agency officials explained to him that they were concerned about his poor
decisions regarding deployment exams, and his other shor tcomings. Id. They
also informed the appellant that he could not perform RMEs until a peer
monitored him performing that test and he received the applicable approval. Id.
¶20 During the FPPE, two peers carefully monitored the appellant and recorded
his progress. Id. at 29 -31. On April 3, 2013, they informed the appellant that all
of his RME patients’ records needed to be pulled, lab tests reviewed, and
abnormal lab tests repe ated. Id. at 29. On April 8, 2013, they noted that the
appellant conducted a physical exam that did not meet the standard of care and on
April 9, 2013, they noted that he performed an RME without supervision, in
violation of both the FPPE and standard ag ency practice. Id. at 29 -30. On
April 10, the appellant’s peer reviewers noted that the appellant did not close out
notes concerning patients that he saw in the clinic, and on April 25, they observed
that he continued to make the same mistakes that cause d him to be placed on the
FPPE, including that: allergies were not being verified in AHLTA; current
medications were not noted; and medical tests were not being interpreted
consistent with guidance. Id. at 30. On May 6, 2013, they noted that the
appella nt had not completed the treatment record of one patient who visited the
clinic with acute chest pain, and on May 7, they noted that a clinic patient was
transported for chest/neck pain and the appellant failed to complete the treatment
record. Id. On Ma y 9, the appellant’s peer reviewers noted that he failed to mark
as not physically qualified a diabetic patient with hypertension. Id. On June 7,
they noted concerns with the appellant’s performance and stated that after
2 months on the FPPE, there was “ no significant improvement” since the time
they provided him the results from the first month. Id. at 31. On June 19, the
11
peer reviewers noted that the appellant had not demonstrated clinical competency
and set forth nine specific areas of concern, inclu ding his poor understanding of
governing regulations, standards and instructions and an increased number of
patient records not up to standards. Id. Based on our review of this evidence, we
find that the agency presented substantial evidence that the app ellant’s
performance during the opportunity period was unacceptable. To the extent that
the administrative judge erred in relying on evidence of unacceptable
performance that preceded the appellant’s placement on the FPPE to sustain the
agency’s action, t he error did not affect the appellant’s substantive rights. The
administrative judge’s ultimate conclusion, that the agency proved by substantial
evidence that the appellant’s performance was unacceptable, was correct. 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 n o basis for reversal of an initial decision).
¶21 The appellant’s argument on review that the initial decision is conclusory is
not supported by the record . ID. Furthermore, such a general claim does not
identify specific errors in the initial decision and presents no reason to disturb the
initial decision. Gonzalez v. Department of Transportation , 109 M.S.P.R. 250,
257 (2008) (findi ng no basis to disturb an initial decision when the petition for
review failed to identify specific errors in the initial decision); 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 whe n she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions) .
¶22 The appellant’s assertion that he was authorized to perform RMEs because
he had taken a radiation exam in 1995 is unavailing. He failed to submit any
evidence to show that he had taken this exam or that it qualified him to perform
RMEs in 2013. In any ev ent, even if he had taken such an exam, he did not
establish that he followed agency guidance for RMEs, and failing to follow that
guidance formed the basis of the agency’s forbidding him to perform RMEs
12
during the FPPE. Similarly, his claim that he was u nable to complete his medical
records and other duties because of computer and staffing issues is not supported
by the record. The administrative judge noted that the proposing official testified
that the appellant was the only physician with a full -time nurse and an
occupational health technician assigned to him, and thus he had more support
than any other physician. ID at 11 -12; HCD (testimony of the proposing official).
¶23 In sum, we find that the agency met its burden to show by substantial
evidence tha t the appellant failed to successfully complete the FPPE. While the
agency relied on performance deficiencies which occurred during the year
preceding the notice of proposed action, it also showed that the appellant failed to
demonstrate acceptable perfor mance after having received a reasonable
opportunity to do so. The evidence presented below shows that the appellant did
not display acceptable performance during the FPPE , and suggests that it may
have been unacceptable prior to the FPPE . Nevertheless, as further explained
below, we must remand this appeal in accordance with Santos .
We discern no error in the administrative judge’s finding that the appellant failed
to prove his affirmative defenses.
¶24 The appellant’s assertion that the agency committed har mful procedural
error because it did not allow him to review the charts upon which it based the
removal action is unavailing. To prove harmful procedural error, an appellant
must prove that the agency committed an error in applying 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 cu re of the error. See 5 C.F.R. § 1201.4 (r).
Assuming, without findi ng, that the agency’s procedures required it to make the
charts available to the appellant, he has not submitted evidence or argument to
show that his reviewing the charts would have caused the agency to reach a
different conclusion about whether his perfo rmance was unsuccessful. The
agency informed the appellant of the specific content of the charts that it relied on
13
to charge him with unsuccessful performance, and with that chart content, the
agency met its burden to prove that his performance was unsucc essful.
¶25 Finally, we agree with the administrative judge that the appellant failed to
prove his affirmative defenses of discrimination. ID at 14 -40. The appellant
identified his race, national origin, religion, and sex , but he did not provide any
direct or circumstantial evidence to support any of his claims of discrimination.
See Gardner v. Department of Veterans Affairs , 123 M.S. P.R. 647, ¶¶ 27-32
(2016) (determining that there was no evidence that the appellant’s removal was
motivated by her race or sex) , clarified by Pridgen v. Office of Management and
Budget , 2022 MSPB 31 , ¶¶ 23 -24. In support of his claim of age discrimination,
the appellant testified that when one of his peer reviewe rs began working with
him, the reviewer asked him when he planned to retire. HCD (testimony of the
appellant). The appellant failed to provide any other evidence to support his
assertion that the comment evidenced age discrimination. Thus, the appellant
failed to prove his affirmative defense of age discrimination. See Wingate v. U.S.
Postal Service , 118 M.S.P.R. 566, ¶¶ 7-9 (2012 ) (finding that, because the
appellant’s evidence did not establish that age was a factor in the agency’s
actions, she failed to prove her age discrimination claim). The appellant also
failed to prove reprisal for prior EEO activity. Although he showed t hat he
previously had filed an EEO complaint and that it was likely that his managers
were aware of his EEO activity, the appellant failed to establish a nexus between
the removal action and his EEO activity. See Cloonan v. U.S. Postal Service ,
65 M.S.P.R. 1 , 4 (1994) (finding that to establish a prima facie case of reprisal for
EEO activity, the appellant must show that: (a) he engaged in protected activity;
(b) the accused official knew of the protected activity; (c) the adverse
employment action under review could have been retaliation; and (d) there was a
genuine nexus between the retaliation and the adverse employment action).
Regardi ng the appellant’s claim that the administrative judge erred in addressing
his claim of disability discrimination , we find that, to the extent that it was error
14
for her to address this claim, the appellant failed to show that her adjudicatory
error harmed his substantive rights. See Panter , 22 M.S.P.R. 281 , 282. We find
no basis to disturb the administrative judge’s conclusion that the appellant failed
to show that discrimination and/or retaliation was a motivating factor in the
decision to remove him.6
Remand is required under Santos .
¶26 Although the appellant has identified no basis for us to disturb the
administrative judge’s findings below, we nonetheless must remand this appeal
for another reason. During the pendency of the petition for review in this case,
the United States Court of Appeals for the Federal Cir cuit held in Santos ,
990 F.3d at 1360 -61, that , in addition to the five elements of the agency’s case set
forth in the initial decision, the agency must also justify the institution of a PIP
by proving by substantial evidence that the employee’s performanc e was
unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to
all pending cases, including this one, regardless of when the events took place.
Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. Although the record
in this appeal already contains evidence suggesting that the appellant’s
performance leading up to the PIP was indeed unacceptable, we rem and the
appeal to give the parties the opportunity to present argument and additional
evidence on whether the appellant’s performance during the period leading up to
the PIP was unacceptable in one or more critical elements. See Lee , 2022 MSPB
11, ¶¶ 15-17. On remand, the administrative judge shall accept argument and
evidence on this issue, and shall hold a supplemental hearing if appropriate. Id.,
¶ 17.
6 Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agen cy’s action, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but -for” cause of the agency’s decisions. See Pridgen , 2022 MSPB
31, ¶¶ 20 -22, 29 -33.
15
¶27 The administrative judge shall then issue a new initial decision consistent
with Santos . See id. If the agency makes the additional showing required under
Santos on remand that the appellant’s performance in at least one critical element
was at an unacceptable level prior to his placement on the PIP, the administrative
judge may incorporate her prior fi ndings and the Board’s findings here on the
other elements of the agency’s case and the appellant’s affirmative defenses in
the remand initial decision. See id . Regardless of whether the agency meets its
burden, if the argument or evidence on remand rega rding the appellant’s pre -PIP
performance affects the administrative judge’s analysis of the appellant’s
affirmative defense s, she should address such argument or evidence in the remand
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, re solve issues of credibility, and
include the administrative judge’s conclusions of law and his legal reasoning, as
well as the authorities on which that reasoning rests).
ORDER
¶28 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 | DIMAYUGA_FELIPE_DC_0432_15_0977_I_1_REMAND_ORDER_2053247.pdf | 2023-07-25 | null | DC-0432 | NP |
2,856 | https://www.mspb.gov/decisions/nonprecedential/FARQUHAR_IRINA_DC_1221_17_0296_W_1_REMAND_ORDER_2052624.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
IRINA FARQUHAR,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-1221 -17-0296 -W-1
DATE: July 24, 2023
THIS ORDER IS NONPRECEDENTIAL1
Irina Farquhar , Burke, Virginia, pro se.
Andrea Blake Saglimbene , Esquire, and Jonathan A. Heller , Esquire, Fort
Belvoir, Virginia, 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
denied her reques t for corrective action in her individual right of a ction (IRA)
appeal. For the reasons discussed below, we GRANT the appellant ’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative ju dges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 and REMAND the case to the Washington Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was hired as an Operations Research Analyst with the agency
in Fort Belvoir, Virginia. Initial Appeal File (IAF), Tab 1 at 8. O n August 23,
2016, the appellant ’s supervisor (the proposing official) proposed removing the
appellant based on her failure to adequately contribute to the agency ’s mission.
Id. at 9-23. Six days after the proposal was issued, the appellant filed a compl aint
with the Office of Special Counsel (OSC) alleging that the agency ’s proposal to
remove her and to take a number of other personnel actions against her was in
retaliation for disclosures she made in 2015 and 2016. IAF, Tab 7 at 4 -19. After
receiving the appellant ’s oral and written replies to the proposal, IAF, Tab 6
at 21-35, on December 14, 2016, the appellant ’s second -line supervisor (the
deciding official) issued a decision removing the appellant from Federal service,
effective January 7, 2017, IA F, Tab 1 at 24 -26. On February 2, 2017, the
appellant filed the instant appeal challenging her removal. IAF, Tab 1. Attached
to her appeal, the appellant provided a January 26, 2017 preliminary close -out
letter from OSC that identified her January 7, 20 17 removal as one of the
personnel actions that she contested with OSC. Id. at 27 -31. On March 2, 2017,
the appellant submitted OSC ’s final close -out letter dated February 16, 2017 .
IAF, Tab 8 at 4 -5.
¶3 After initially determining that the appeal was limi ted to the appellant ’s
challenge to her performance -based removal, the administrative judge issued an
order reconsidering his decision and concluded that, based on the additional
documents the appellant submitted regarding her communications with OSC, the
appeal would be considered as an IRA appeal, as the appellant requested. IAF,
Tab 28 at 2 -6, Tab 31 at 1 -3. In the order, the administrative judge also identified
the following exhaustive list of disclosures that he would be consideri ng in
3
adjudicating t he IRA appeal: (1) memoranda and presentations the appellant
provided to her first -line supervisor and former second -line su pervisor from
March through May 2015 , disclosing purported agency program failures;
(2) information communicated to the agency ’s equal employment opportunity
(EEO) office in September 2015 concerning her attempts to notify her supervisors
of purported deficiencies with agency programs; (3) information provided to the
agency ’s Inspector General (IG) office in August 2015 and August 2 016
concerning alleged deficiencies with agency programs; and (4) the appellant ’s
communications with the office of Senator John McCain in September 2016
regarding her allegations of whistleblower reprisal. IAF, Tab 31 at 2. The
administrative judge also identified the following personnel actions the appellant
alleged were taken against her in reprisal for her purported disclosures: (1) her
annual contribution appraisal was downgraded on January 11, 2016; (2) she was
placed on a Contribution Improvement Plan (CIP) on February 1, 2016; (3) she
received a proposed removal on August 23, 2016; (4) she received a removal
decision letter on December 14, 2016 , and was removed from Federal service,
effective January 7, 2017; and (5) she was subject ed to a hostile work
environment by agency officials. Id. at 2-3.
¶4 After holding the appellant ’s requested hearing, the administrative judge
issued an initial decision denying her request for corrective action. IAF, Tab 35,
Initial Decision (ID) at 1, 17. The administ rative judge found that the appellant ’s
first- and second -line supervisors did not know about her purported disclosures to
the agency ’s IG office or the EEO office, or about her communications with the
office of Senator McCain. ID at 12 -14. Consequently, the administrative judge
concluded that those purported disclosures could not have contributed to either
official ’s decision to take any of the contested personnel actions. ID at 12-14.
¶5 Regarding one of the purported disclosures, a memorandum on Econom ic
Analysis (EA) Services, which the appellant prepared in February 2015 and
claimed to have disclosed to her first -line supervisor at various times from March
4
through May 2015, the administrative judge concluded that, because the
memorandum was not provid ed with her Board appeal, he could only make his
findings based on the parties ’ second -hand descriptions of the contents of the
memorandum as well as the appellant ’s characterization of the contents of the
memorandum to OSC. ID at 14. Based on the inform ation provided, the
administrative judge concluded that the memoranda and other materials the
appellant provided did not contain protected disclosures but instead reflected the
appellant ’s unsolicited suggestions for ways to improve the agency ’s inventory
organization policies and economic assumptions used in cost -analysis models,
and similar policy suggestions for ways to improve the economic analysis
services provided by the agency. ID at 14 -17. The administrative judge
concluded that the appellant ’s su ggested improvements constituted policy
disagreements and did not evidence any violation of any law, rule, or regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety, s uch that they would
rise to the level of protected disclosures u nder 5 U.S.C. § 2302 (b)(8). ID
at 14-17. Consequently, the administrative judge denied the appellant ’s request
for corrective actio n. ID at 17.
¶6 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 2. The agency has filed a response in opposition to
the petition for review, and the appellant has fi led a reply. PFR File, Tabs 5 -6.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s petition for review was timely filed.
¶7 The initial decision was issued on September 7, 2017, and informed the
appellant that a petition for review must be filed by October 12, 2017. ID at 1,
17. The appellant filed two submissions with the Washington Regional Office on
October 11 and 12, 2017 , entitled “Reopening an Appeal Dismissed Without
Prejudice,” and documents entitled “Petition for Review” and “Supplement to
5
PFR” with the O ffice of the Clerk of the Board on October 12, 2017, which the
Clerk’s Office rejected for failing to comply with the Board’s requirements for
filing a petition for review. PFR File, Tab 1 at 1. The letter from the Clerk’s
Office instructed the appellant to file a single, pe rfected petition for review on or
before October 27, 2017. Id. at 2. The appellant submitted a perfected petition
for review , which was received by the Clerk’s Office on October 30, 2017. PFR
File, Tab 2. With her petition, the appellant submitted a co py of a Federal
Express receipt reflecting payment for overnight priority delivery with a
time -stamp showing October 28, 2017 , at 12:03 a.m . Id. at 1-2. The petition also
included a signed statement from a Federal Express employee averring that,
although the appellant’s petition -for-review package was tendered to the Federal
Express office at 11:45 p.m. on October 27, 2017, the package was not processed
and time -stamped until after 12:00 a.m. on October 28th, due to a system error.
Id. at 1. In a subseq uent motion to accept her petition as timely filed, the
appellant provided an affidavit explaining that she delivered her petition for
review to a Federal Express office in Fairfax, Virginia , at 11:45 p.m. on the
deadline date. PFR File, Tab 4 at 1 -2. Wi th her motion, the appellant provided
additional detail, including an email from the Federal Express Senior Center
Manager explaining that the label for the appellant’s petition -for-review package
was printed at 11:50 p.m. on October 27th, but the label ha d to be reprinted,
resulting in a package time -stamp dated October 28th. Id. at 7.
¶8 The Board’s regulations state that the date of filing by commercial
overnight delivery “is the date the document was delivered to the commercial
delivery service.” 5 C.F.R. § 1201.4 (l). Here, the record evidence shows that,
despite the time -stamp on the package, the package containing the appellant’s
petition for review was timely tendered to the overnight delivery service.
6
Accordingly, we find the petition for review timely filed.2 See McDavid v.
Department of Labor , 64 M.S.P.R. 304 , 306 (1994) (extending to commercial
delivery services the rule that, although the postmark date is ordinarily the date of
filing, a party may es tablish otherwise by presenting evidence , in the form of an
affidavit or a sworn statement, that, despite the postmark date appearing to
indicate that the submission was filed beyond the deadline, the pleading was
actually placed in the delivery stream by the filing deadline, and thus was timely
filed).
2 The appellant also has filed an untimely reply to the agency’s response to the petition
for review and requests that the Board find that there is good cause for the filing delay.
PFR File, Tab 6. The agency filed its response to the appellant’s petition for review on
November 20, 2017, and the appellant filed her reply to the agency’s response on
Janua ry 16, 2018. PFR File, Tabs 5 -6. As the Board noted in the petition fo r review
acknowledg ment order, a reply to a response to a petition for review must be filed
within 10 days after the date of service of the response to the petition for review. PFR
File, Tab 3 at 1; see 5 C.F.R. § 1201.114 (e). Here, the appellant filed her reply to the
agency’s response on January 16, 2018 —over a month and a half after the
November 30, 2017 filing deadline. PFR File, Tab 5.
The appellant requests that the Board accep t her untimely filing and has submitted three
letters from two different doctors, dated December 28, 2017, November 28, 2017, and
November 9, 2017, respectively, describing her degenerative hip and eye conditions and
other medical complications related to those conditions. PFR File, Tab 6 at 16 -19. In
the last of those letters, dated December 28, 2017, the appellant’s treating physician
notes that the appellant’s condition and the severe pain associated with it would prevent
her from sitting or standing i n front of a computer. The letter specifically states that
the appellant would need to be excused from work -related activities, including those
pertaining to her Board appeal, and notes that he would follow up to reevaluate her
condition 45 days later (on or about February 11, 2018). Id. at 17. As such, the
appellant has provided sufficient cause, supported by corroborating medical evidence,
explaining how her illness prevented her from timely filing her reply. See Stribling v.
Department of Education , 107 M.S.P.R. 166, ¶ 8 (2007); Lacy v. Department of the
Navy , 78 M.S.P.R. 434 , 437 -38 (1998). Accordingly, we have considered the reply. In
the reply, the appellant merely restates her arguments concerning the invalidity of the
CIP and the removal action, an d her claim that the administrative judge erred in
determining that she did not make any protected disclosures. PFR File, Tab 6 at 1 -15.
7
The appellant ’s decision to seek corrective action challenging her removal before
OSC was not a binding election , and the appeal must be remanded and redocketed
as an appeal of her performance -based removal .
¶9 On review, the appellant argues that the administrative judge failed to
address “all aspects ” of her appeal and focused only on her IRA appeal. PFR
File, Tab 2 at 17. Among other things, t he appellant contends that there were
irregularities in the process the agency used to assess her contributions and that
her peers and superiors thought highly of her work.3 Id. at 5-10, 17 -18.
¶10 As previously noted, the administrative judge originally determined that the
Board only had jurisdiction over the appell ant’s appeal as a challenge to her
performance -based removal before later ac quiescing to the appellant ’s request
that her appeal be adjudicated as an IRA appeal. ID at 2 -3; IAF, Tab 28 at 2-6,
Tab 31 at 1 -3. Because the administrative judge ultimately co ncluded that some
of the appellant’s disclosures could not have been a contributing factor to any of
the contested personnel actions and that her other disclosures were not protected
under the rubric of the whistleblower -protection statutes, he did not dis cuss the
details of the challenged personnel actions at length in the initial decision. ID
at 17.
¶11 Under 5 U.S.C. § 7121 (g), an appellant who has been subjected to an action
appealable to the Board , and who alleges that she has been affected by a
prohibited personnel practice other than a claim of discrimination under 5 U.S.C.
3 The appellant also argues that the electronic record is mislabeled and that the
recording of the first hearing day, June 26, 2017, is missing from the electronic file .
PFR File, Tab 2 at 12-14. The appellant’s assertion is correct. The electronic record
was in fact mislabeled, and the June 26, 2017 hearing recording was missing from the
electr onic file. On June 11, 2018, the Clerk ’s Office issued a notice acknowledging
that Tab 32, the tab identified as containing the hearing testimony from June 26, 2017,
was mislabeled and instead contained the hearing recording from testimony taken on
June 2 7, 2017. PFR File, Tab 7 at 1. The notice also stated that the corrected audio file
for the testimony from June 26th had been reuploaded to Tab 32 and provided the
appell ant with 35 days to submit a 10 -page filing supplementing her petition for review.
Id. The appellant did not reply to the Board ’s notice and did not submit a supplement
to her petition for review or any additional filings .
8
§ 2302 (b)(1), may elect one, and only one, of the following remed ies: (1) an
appeal to the Board under 5 U.S.C. § 7701 ; (2) a grievance filed under the
provisions of a negotiated grievance procedure; or (3) a complaint following the
procedures for seeking corrective action from OSC under 5 U.S.C. chapter 12,
subchapters II and III. Corthell v. Department of Homeland Secu rity,
123 M.S.P.R. 417 , ¶ 15 (2016); Savage v. Department of the Army , 122 M.S.P.R.
612, ¶ 17 (2015) , overruled in part by Pridgen v. Office of Management and
Budget , 2022 MSPB 31, ¶¶ 23-25; 5 C.F.R. § 1209.2 (d)(1). 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 fora. Agoranos v.
Department of Justice , 119 M.S.P.R. 498 , ¶ 14 (2013). However, an employee ’s
election of remedies under section 7121(g) will not be binding if it is not knowing
and informed. Id., ¶ 16. When an agency tak es an action without informing the
appellant of her procedural options under section 7121(g) and the preclusive
effect of electing one of those options, any subsequent election by the appellant is
not binding. Id., ¶ 17.
¶12 As previously noted, the record re flects that the appellant filed a
whistleblower reprisal complaint with OSC after she received her removal
proposal letter but before she received the removal decision letter and before she
filed her initial Board appeal. IAF, Tab 1 at 9 -26, Tab 7 at 4. The record also
reflects that after receiving the removal decision letter, the appellant
supplemented her OSC filings to include her removal as one of the contested
actions, and OSC ’s preliminary and final determination letters reflect that it
considered t he removal decision in its investigation. IAF, Tab 1 at 27 -31, Tab 8
at 5-6. Additionally, the appellant supplemented the record for her Board appeal
with a copy of OSC ’s final decision letter and further supplemented the record
with copies of email corr espondences with OSC demonstrating that she had
amended her OSC complaint to include a challenge to the removal decision after
9
the administrative judge initially determined that she had failed to prove
exhaustion of her removal challenge with OSC. IAF, Ta bs 8, 28, 29-30.
¶13 Nevertheless, there is nothing in the record demonstrating that either the
agency or the administrative judge apprised the appellant of the preclusive effect
of her decision to c hallenge her removal with OSC. The notice of appeal rights in
the agency ’s removal decision letter d id not identify OSC as a possible avenue for
relief and d id not identify the preclusive effect of the appellant ’s decision to seek
corrective action regarding her removal with OSC under subchapters II and III of
chapter 12 of Title 5, followed by an IRA appeal w ith the Board. IAF, Tab 1
at 24-26; see 5 C.F.R. § 1201.21 (d)(4) .4 Additionally, although the
administrative judge identif ied the appellan t’s removal as an “otherwise
appealable ” action, noted that the appellant ’s challenge to her removal would
have been timely filed as a performance -based action appeal, and identified the
differences in the burden of proof requirements between IRA appeals a nd
performance -based actions in his initial ruling on IRA jurisdiction, he did not
clearly identify that the appellant ’s decision to challenge her removal as a part of
her IRA appeal would preclude a later performance -based action appeal. I AF,
Tab 28 at 5 -6. Accordingly, we find that the appellant ’s decisions to file an OSC
complaint of her removal and a subsequent IRA appeal with the Board were not
“knowing and informed ” because she was not informed by the agency of all of her
procedural options under se ction 7121(g) or of the preclusive effect of filing the
OSC complaint, and there is no evidence in the record indicating that she was
4 During the pendency of this appeal, Congress enacted the National Defense
Author ization Act of 2018 (2018 NDAA) . Pub. L. No. 115 -91, 131 Stat. 1283 (Dec. 12,
2017). The 2018 NDAA codified, with respect to an action taken under 5 U.S.C.
§§ 7503 (b)(1), 7513(b)(1), or 7543(b)(1), an agency’s obligation to noti fy an employee
of her right to appeal an action brought under one of the applicable sections, the forums
in which she may file her appeal, and any limitations on her rights that would apply
because of her forum selection. Section 1097(b)(2), 131 Stat. at 1617 ( 5 U.S.C. § 7503
Note). We need not consider the retroactivity of this provision because our finding
would be the same regardless —the agency did not provide the appellant the requisite
notice .
10
informed of such by some other means.5 IAF, Tab 1 at 24 -26; see Corthell,
123 M.S.P.R. 417 , ¶ 17 ; Edwards v. Department of the Air Force , 120 M.S.P.R.
307, ¶ 13 (2013); 5 C.F.R. § 1209.2 (d)(1).
¶14 Despite her request that her appeal be docketed as an IRA appeal below, on
review , the appellant appear s to challenge the adjudication of her appeal as an
IRA appeal instead of as a challenge to her performance -based removal. PFR
File, Tab 2 at 17. Because we conclude that the appellant ’s decisions to file a
request for corr ective action with OSC and a subsequent Board IRA appeal did
not constitute a knowing and informed election, we must remand the appeal to the
regional office for redocketing as an appeal of her performance -based removal.6
5 In the prehearing conference summary determining that the appellant ’s appeal would
be adjudicated as an IRA appeal based on the additional evidence she supplied, the
administrative judge identif ied the appellant ’s purported disclosures and contested
personnel actions as the issues in dispute and stated that “additional issues are
precluded in this appeal. ” IAF, Tab 31 at 1-2 (emphasis in original). However, this
statement d id not clearly identify that the appell ant’s decision to pursue her appeal as
an IRA appeal constituted a binding election, d id not identify the alternative avenues
for c hallenging her removal, and did not state that her decision to proceed with her IRA
appeal would preclude a later challenge o f the agency ’s removal decision as a
stand -alone performance -based action appeal. Id. Consequently, this statement did not
provide sufficient notice to meet the election notic e requirements under 5 U.S.C.
§ 7121 (g). See 5 C.F.R. § 1209.2 (d).
6 Regarding t he appellant ’s argument that new and material evidence became available
after the record closed below that warrants a different outcome in her case , the
purportedly newly discovered evidence appears to relate to the fact that in August 2017 ,
she was diagnosed with persistent pain, a degenerative hip condition, and a tear in the
retina of her right eye, and she attaches several let ters from her physicians dated in July
and August 2017 documenting these findings. PFR File, Tab 2 at 10 -11, 22 -28.
Although this evidence is “new” in the sense that it was unavailable when the record
closed below, the appellant has not explained how it is material to the outcome of her
appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (noting that
the Boa rd 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). Nevertheless, because we are remanding the appeal for redocketing as an
appe al of her performance -based removal , the appellant may proffer the medical
evidence before the administrative judge on remand , and the administrative judge in
that case may determine its relevance. 5 C.F.R. § 1201.41 (b)(10). Similarly, r egarding
the appellant ’s argument that the administrative judge incorrectly stated that a copy of
her memorandum on EA Services dated February 15, 2015 , was not included within her
11
On remand, the administrative judg e may incorporate into his new decision the
prior findings concerning the appellant ’s purported whistleblowing activities to
the extent he finds appropriate.
¶15 The administrative judge in this appeal held a full hearing on the merits of
the appellant ’s IRA a ppeal and determined that of the six purported disclosures
the appellant had exhausted with OSC, the agency officials involved in effecting
the appellant ’s removal did not know about three of them (and therefore they
could not have contributed to either of ficial ’s decision to remove the appellant),
and the remaining purported disclosures identified policy disagreements and did
not disclose any protected matter . ID at 12 -17. Although the administrative
judge must make findings concerning any new affirmativ e defenses the appellant
may raise on remand, the administrative judge may, to the extent he finds
appropriate, incorporate his previous findings concerning the appellant ’s existing
whistleblowing disclosures into any new initial decision.7
appeal, the appellant ’s assertion is correct. PFR File, Tab 2 at 16. Although the
appellant does not identify where the memorandum can be found in the record, it
appears that a copy of it was included within the appellant ’s approved hearing exhibits.
IAF, Tab 27 at 106-10. On remand, the parties will have the opportunity to address the
contents of the memorandum in the context of the appellant ’s per formance -based
removal appeal.
7 During the pendency of the petition for review in this case, the U.S. Court of Appeals
for the F ederal Circuit held in Santos v. National Aeronautics and Space
Administration , 990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021), that part of the agency ’s
burden under 5 U.S.C. chapter 43 is to justify the institution of the performance
improvement plan by proving by substantial evidence that the employee’s performance
was unacceptable prior to that time. Following the issuance of Santos , the Board issue d
Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶¶ 15 -16, which incorporated
the changes made by Santos and found that Santos applies to all pending cases,
regardless of when the events took place. Although the appeal in Santos involved a
performance -based adverse action under a traditional performance -based appraisal
system, we find that the court’s reasoning applies equally to the contribution -based
adverse action taken under the Contribution -based Compensation Appraisal System at
issue here. IAF, Tab 6 at 18 -20. Accordingly, on remand, the administrative judge
shall accept argument and evidence on whether the appellant’s cont ribution level
leading up to the contribution -based improvement plan was unacceptable, in addition to
argument and ev idence on the remaining issues. Lee, 2022 MSPB 11 , ¶ 17. Any new
argument or evidence affecting his prior findings as to the appellant’s whistleblower
12
ORDER
¶16 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
claim should be addressed in the remand initial decision. See Spithaler v. Office of
Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that an initial decision
must identify all material issues of fact and law, summarize the evidence, re solve issues
of credibility, and include the administrative judge’s conclusions of law and her legal
reasoning, as well as the authorities on which that reasoning rests). | FARQUHAR_IRINA_DC_1221_17_0296_W_1_REMAND_ORDER_2052624.pdf | 2023-07-24 | null | DC-1221 | NP |
2,857 | https://www.mspb.gov/decisions/nonprecedential/GOMEZ_ANTHONY_NY_1221_17_0105_W_1_REMAND_ORDER_2052708.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY GOMEZ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-1221 -17-0105 -W-1
DATE: July 24, 2023
THIS ORDER IS NONPRECEDENTIAL1
Alan E. Wolin , Esquire, Jericho, New York, for the appellant.
Michael J. Berger , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has file d a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal . For the reasons discussed below, we GRANT the appellant’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
review , VACATE the initial decision, and REMAND the case to the field office
for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant most recently held the position of Deputy Facility Telehealth
Coordinator. Initial Appeal File (IAF), Tab 41 at 4, Tab 42 at 4. In or around
June 2016, he filed a complaint with the Office of Special Counsel (OSC),
alleging that the agency had engaged in a number of improprieties in retaliation
for protected whistleblowing activity. IAF, Tab 12 at 16 -32. OSC closed the
complaint in January 2017, and this IRA appeal followed. IAF, Tab 1, Tab 12
at 33-46. The administrative judge found that the appellant met his jurisdictional
burden, then developed the record and held a hearing, but denied the appellant ’s
request for corrective action. IAF, Tab 58, Initial Decision (ID). She found that
the appellant failed to meet his burden of proving that he made protected
disclosures or otherwise engaged in protected activity. ID at 6 -11. The appellant
has filed a petition for review. Petition for Review (PFR) File, Tab 1. The
agency has filed a response. PFR File, Tab 3.
¶3 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), the
Board has jurisdiction over an IRA appeal if, after the appellant has e xhausted his
administrative remedies before OSC , he makes nonfrivol ous allegations that:
(1) he made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity d escribed 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 act ion as defined by
5 U.S.C. § 2302 (a)(2)(A) . Salerno v. Department of the Interior , 123 M.S.P.R.
230, ¶ 5 (2016). Once an appellant establishes jurisdiction over his IRA appeal,
he is entitled to a hearing on the merits of his claim, which he must prove by
preponderant evidence. Id. If the appellant proves that his protecte d disclosure
or activity was a contributing factor in a personnel action taken against him, the
3
agency is given an opportunity to prove, by clear and convincing evidence, that it
would have taken the same personnel action in the absence of the protected
disclosure or activity. Id.
The appellant failed to prove that he made a protected disclosure concerning the
hiring of an Administrative Officer.
¶4 The appellant alleged that he made a protected disclosure in a series of
meetings by expressing concerns to two individuals, the Associate Chief of Staff
of Ambulatory Care (ACSAC) and the Deputy Facility Telehealth Coordinator
(DFTC), about their plan for filling a position. E.g., IAF, Tab 12 at 5 -8.
Specifically, he reportedly disclosed that they were improperl y trying to subvert
veteran hiring preferences in order to place the DFTC in an Administrative
Officer position. Id.
¶5 The administrative judge recognized that both of the alleged recipients
denied having any knowledge of the disclosure, denied that the mee tings ever
occurred, and denied that they concocted the plan described by the appellant. ID
at 7-8 (citing IAF, Tab 50, Hearing Compact Disc (HCD1) (testimony of the
DFTC), Tab 51, Hearing Compact Disc (HCD2) (testimony of the ACSAC)). She
also recognize d that while the appellant presented contrary testimony, there was
no documentation or other corroborating evidence for either the disclosure or the
meetings he described. ID at 6 -8.
¶6 Faced with the conflicting testimony, the administrative judge properly
analyzed witness credibility. ID at 8 -9; see Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987) (describing how an administ rative judge must
analyze witness credibility and providing a number of factors that may be
relevant in doing so). Most notably, the administrative judge found that the
DFTC and the ACSAC both testified in a straightforward, unequivocal, and
consistent ma nner, while the appellant’s testimony was vague, nonspecific, and
speculative. ID at 8. Based on factors that included demeanor, the administrative
4
judge found the DFTC and the ACSAC credible, but found the appellant lacking
credibility. ID at 8 -9.
¶7 On review, the appellant reiterates his allegations about meetings with the
ACSAC and the DFTC, their plan to subvert veteran hiring preferences, and his
disclosure about the same. For the most part, his arguments on this matter mirror
the ones he made belo w, without specifically addressing the administrative
judge’s findings. Compare PFR File, Tab 1 at 7 -11, with IAF, Tab 12 at 5 -8,
Tab 56 at 10 -13. Those that remain amount to disagreement with the
administrative judge’s credibility determinations. PFR F ile, Tab 1 at 25 -29. For
example, while the administrative judge found the appellant’s testimony about
this alleged disclosure vague and nonspecific, the appellant asserts that he and his
disclosure “were sufficiently specific and detailed.” Compare ID a t 7, with PFR
File, Tab 1 at 25. We are not persuaded. The appellant has not identified any
substantive evidence in support of this alleged disclosure, nor has he presented
any basis for overturning the administrative judge’s well -reasoned credibility
findings re garding the same. See Weaver v. Department of the Navy , 2 M.S.P.R.
129, 133 -34 (1980) ( finding that mere disagreement with the administrativ e
judge’s findings and credibility determinations does not warrant full review of the
record by the Board) , review denied , 669 F.2d 613 (9th Cir. 1982) (per curiam) ;
see also Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002)
(recognizing that the Board must defer to an administrative judge’s credibility
findings if they are bas ed on a witness’ demeanor and may only overturn them for
“sufficiently sound” reasons). The appellant has not presented, for example,
documentary evidence showing that he made this disclosure and the contrary
testimony of the DFTC and the ACSAC about the same was incorrect.
The appellant failed to prove that his grievance is activity protected and within
the purview of this IRA appeal.
¶8 Aside from the disclosure described above, the appellant asserted that there
was a time during which he was temporarily d etailed to the Lead Facility
5
Telehealth Coordinator (FTC) position and, as a result, he filed a grievance
regarding his pay during that temporary detail. E.g., IAF, Tab 12 at 8 -9. That
griev ance alleged that the agency violated a particular union contrac t provision by
failing to pay him at a higher rate during the detail assignment. IAF, Tab 11,
Subtab 4 at 30-31. The grievance was ultimately denied by an arbitrator. Id.
at 1-18.
¶9 While the appellant presented his grievance as additional protected act ivity,
the administrative judge concluded that it fell outside the Board’s purview in this
IRA appeal. ID at 9 -10. She correctly recognized that the WPEA extended the
Board’s jurisdiction over IRA appeals to claims of reprisal for filing a grievance
only if that grievance sought to remedy whistleblower reprisal under 5 U.S.C.
§ 2302 (b)(8). Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7
(2013). In other words, the administrative judge correctly determined that the
Board cannot address allegations t hat the agency retaliated against the appellant
for his grievance in this IRA appeal because that grievance did not seek to
remedy whistleblower reprisal.
¶10 On review, the appellant reasserts that he filed the aforementioned
grievance, and he summarily argues that both the grievance and his associated
testimony were protected activity. PFR File, Tab 1 at 11 -12, 27. However, he
has not presented any basis for us to reach a conclusion different from the
administrative judge. He has not shown that his gr ievance sought to remedy a
violation of section 2302(b)(8), so he has not shown that it falls within the
Board’s jurisdiction over IRA appeals .
Remand is required for the administrative judge to address another alleged
disclosure.
¶11 Below , the administrative judge issued an order explaining the Board’s
limited jurisdiction. IAF, Tab 3. That detailed order directed the appellant to file
a statement, accompanied by evidence, listing the following: (1) his protected
disclosures or activities; (2) the dates he made the disclosures or engaged in the
6
activities; (3) the individuals to whom he made any disclosures; (4) why his belief
in the truth of any disclosures was reasonable; (5) the actions the agency took or
failed to take, or threatened to take or fail to take, against him because of his
disclosures or activities; (6) why he believes a disclosure or activity, or a
perception of such a disclosure or activity, was a contributing factor to the
actions; and (7) the date of his complaint to OSC and the date that it notified him
it was terminating its investigation of his complaint, or if he had not received
such notice, evidence that 120 days have passed since he filed his complaint with
OSC. Id. at 7.
¶12 Rather than clearly listing the requested information, the a ppellant’s
representative responded with a narrative that is somewhat difficult to follow.
IAF, Tab 12 at 4 -13. Nevertheless, within both that narrative and the
accompanying OSC correspondence, there is an allegation that the appellant had
discussions wi th the ACSAC and the Deputy Chief of Ambulatory Services about
his temporary detail to the Lead FTC position. Id. at 9 -10, 30 -31. According to
the appellant, he “was very vocal in claiming that management was acting
improperly by continuing the Lead FTC position as a Title 38 position and in
refusing to convert it to a Title 5 position, at [his] great disadvantage.” Id.
at 9-10, 30. Concerning this matter, the appellant further alleged that he
“certainly opined that management was acting in violation of regulation and
policy and were abusing their authority and engaging in mismanagement.” Id.
at 10, 30.
¶13 It appear s that neither the agency nor the administrative judge recognized
this allegation as another potential disclosure. See, e.g. , IAF, Tabs 14 -15, 57.
The confusion is understandable, because the appellant seems to have
simultaneously alleged that the agency’s actions surrounding the Lead FTC
position amounted to reprisal for the alleged disclosures and activities discussed
above, and that it was t he basis of an additional disclosure. Nevertheless, the
appellant did continue to pursue the matter, as demonstrated by his reiterating the
7
same alleged disclosure in his prehearing submission and post -hearing
summation. IAF, Tab 42 at 6 -7, Tab 56 at 14 -15. The appellant has raised the
matter again on review. PFR File, Tab 1 at 12 -13, 27 -28.
¶14 An initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and her legal reasoning, as well as the
authorities on which that reasoning rests. Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980). Because the administrative judge did
not address this additional alleged disclosure, we find it appropriate to remand the
appeal for further adjudication.2 See Mastrullo v. Department of Labor ,
123 M.S.P.R. 110 , ¶ 14 (2015) (remanding an IRA appea l for further adjudication
when the initial decision failed to address each of the disclosures exhausted
before OSC).
¶15 On remand, the administrative judge should permit the parties to submit
additional argument and determine whether the submission of additional evidence
(including additional hearing testimony) is necessary. See Ryan v. Department o f
the Air Force , 117 M.S.P.R. 362 , ¶¶ 9 -10, 15 (2012) (instructing an
administrative judge to determine whether the submission of ad ditional evidence,
such as hearing testimony, was necessary on remand after he failed to adjudicate
all of the alleged personnel actions). In her remand initial decision, the
administrative judge may incorporate her prior findings concerning the
Administr ative Officer disclosure and grievance activity. See supra ¶¶ 4-10. The
remand initial decision must, however, also address the alleged Lead FTC
disclosure. See supra ¶¶ 12-13.
2 In light of our findings, it would be premature for us to consider the appellant’s
arguments concerning the contributing factor requirement or the agency’s burden, if he
were to present a prima fac ie case of reprisal. PFR File, Tab 1 at 13 -20, 29.
8
ORDER
¶16 For the reasons discussed above, we remand t his case to the field office for
further adjudication in accordance with this Remand Order.3
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
3 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. | GOMEZ_ANTHONY_NY_1221_17_0105_W_1_REMAND_ORDER_2052708.pdf | 2023-07-24 | null | NY-1221 | NP |
2,858 | https://www.mspb.gov/decisions/nonprecedential/GOLDSMITH_DANIEL_M_DC_0752_15_0520_A_1_FINAL_ORDER_2052745.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIEL M. GOLDSMITH,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DC-0752 -15-0520 -A-1
DATE: July 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Valerie A. Teachout , Esquire, Washington, D.C., for the appellant.
Lisa A. Holden , Esquire, and Christopher Steven Jennison , 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 addendum initial
decision, which awarded him $45,558 .36 in attorney fees and costs in connection
with the Board’s decision mitigating to a 45 -day suspension the demotion the
agency imposed based on his misconduct . 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 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 F ederal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under secti on 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED by this Final Order to supplement the administrative judge’s analysis
with current case law, we AFFIRM the addendum initial decisio n.
BACKGROUND
¶2 The appellant occupied the supervisory position of Manager, Building
Operations, Maintenance and Safety Division. The agency demoted him to the
nonsupervisory position of Building Services Lead based on the charge of
Inappropriate Behavio r. The three underlying specifications of the charge were
that (1) the appellant improperly changed the time and attendance records of a
subordinate employee to reflect her in an absence without leave status on
10 occasions, knowing that she had requested the leave and that he had approved
it; (2) he proposed to suspend the employee for providing inaccurate information ,
even though she had not, in fact, entered her own time; and (3) during a
subsequent meeting with his supervisor, the appellant failed to t ake responsibility
for not having been forthcoming regarding his actions. On appeal, the appellant
challenged the specifications, contended that the penalty was not reasonable, and
3
alleged that the action was due to discrimination based on race and gender and the
hostile work environment created by the agency .
¶3 Following a hearing, the administrative judge issued an initial decision in
which she sustained only the first two specifications , but nonetheless sustained
the overall charge . She found that the appellant did not establish his affirmative
defenses. She then found that discipline for the sustained misconduct was
appropriate, but that, given certain factors, a 45 -day suspension was the maximum
reasonable penalty, and she mitigated the pena lty. Goldsmith v. Department of
Transportation , MSPB Docket No. DC -0752 -15-0520 -I-1, Initial Decision
(Dec. 9, 2015). The full Board denied the agency’s petition for review and the
appellant’s cross petition for review, and affirmed the initial decision , which
became the Board’s final decision. Goldsmith v. Department of Transportation ,
MSPB Docket No. DC -0752 -15-0520 -I-1, Final Order (Jul y 22, 2016).
¶4 The appellant filed a timely motion for attorney fees, claiming $102,831.40
in fees, representing approx imately 194 hours at a rate of $504 per hour for the
work of the primary attorney and 9.2 hours at $530 per hour and $568 per hour,
respectfully, for the work of two senior attorneys at the firm . Attorney Fees File
(AFF), Tab 1 at 31 -41. The appellant al so claimed $1,760.86 in costs , id. at 42 ,
for a total award of $104,592.26 .2 He acknowledged that, pursuant to the fee
agreement , attorney time was to be compensated at the rate of $425 per hour,
2 In a first supplement to the fee p etition , the appellant sought additional fees in the
amount of $1,791.20 plus an additional $3.40 i n costs for a new total of $106, 386.86.
AFF, Tab 3 at 23 -24. A ccording to the appellant, one page of the previously filed
submission had been “unintentionally cropped” and an additional photocopying charge
had been discovered , id. at 6. Subsequently, the appellant resubmitted a previously
misfiled second supplement to the fee petition seeking an additional $2,066.40 in fees
and $10.75 in costs for work performed in response to the administrative judge’s
Acknowledgment Order, for a ne w total of $108,464.01. A FF, Tab 6 at 79 -80. It does
not appear that the administrative judge considered either of these supplemental filings.
Addendum Initial Decision at 2. However, although the appellant references them in
his petition for review , Petition for Review File, Tab 1 at 7, he does not challenge the
administrative judge’s failure to consider them , id. at 24 -25, and therefore we have not
addressed either pleading.
4
lower for associates based on their years of experience ,3 but he argued that,
because the agreement also provided that , if he prevailed, the firm would apply
for an award of fees at the prevailing market rate s, the primary attorney was
entitled to the rate of $504 per hour and the senior attorneys to the higher rates
requested , id. at 11-14, 19 -22. According to the appellant, these higher rates
derive from the Laffey Matrix, a schedule of hourly rates allowed by the U.S.
District Court for the District of Columbia, purporting to show the prevailing
market rat es for attorneys in the District of Columbia , Laffey v. Northwest
Airlines, Inc. , 572 F. Supp. 354, 374 -75 (D.D.C. 1983), aff’d in part and rev’d in
part on other grounds , 746 F.2d 4 , 24-25 (D.C. Cir. 1984) ; AFF, Tab 1 at 12 .
Notably, t he agreement itself does not refer to or otherwise describe the requested
rates as Laffey rates . AFF, Tab 1 at 20.
¶5 The agency opposed the fee petition on the bases that fees a re not warranted
in the interest of justice, and that even if they a re, the hours claimed a re excessive
and duplicative and the hourly rates too high, and that the overall award should be
substantially reduce d based on the appellant’s limited success . AFF, Tab 4
at 5-17. In addition, t he agency argued that costs for deposition transcripts and
photocopying are not authorized, id. at 17.
¶6 In his timely reply, the appellant contend ed that fees a re warranted because
the agency knew or should have known that its penalty would not be sustained ,
that the requested fees are reasonable because he achieved a substantial degree of
success , and that, even though he was not successful in his discrimination claims
or in his cross petition for review of the initia l decision, both were relevant to the
claims upon which he did prevail and that therefore hours spent on those matters
are compensable. A FF, Tab 6 at 5 -13. However, t he appellant conceded that,
3 The appellant acknowledged that the primary attorney has been in practice s ince 2002
and that her regular billing rate was $375 per hour in 2015 , and $385 per hour in 2016.
The appellant also acknowledged that both senior attorneys regularly billed at $425 per
hour. AF F, Tab 6 at 26 -27.
5
“upon reflection,” the agency is responsible for paying the firm at the attorneys’
regular hourly rate s, not the Laffey rates, id. at 14, 26-27, and that costs for
deposition transcripts and photocopying are not compensable , id. at 25. Finally,
the appellant argued that the specific hours challenged by the agency as
duplicative and excessive a re neither, but r ather that they are reason able, and that
therefore he should be compensated for them , id. at 14-26. Each party filed a
subsequent submission after the close of the record . AFF, Tabs 8 -9.
¶7 In her addendum init ial decision, the administrative judge granted in part
and denied in part the appellant’s motion. AFF, Tab 10, Addendum Initial
Decision (AID) at 1. She first note d that the appellant was originally demoted
with a loss in pay, but that, based on the init ial decision, he was reinstated to his
former position, albeit with a 45 -day suspension, and she found that he thereby
obtained an enforceable order resulting in a material alterat ion of the legal
relationship between the parties, rendering him the prevail ing party. AID at 5-6.
The administrative judge next found that fees are warranted in the interest of
justice, rejecting the appellant’s claim that the dispositive factor is that the
penalty in his case was mitigated , AID at 6 -7, but finding that the agency should
have known that it would not pr evail on the selected penalty, AID at 7. She then
addressed the hours claimed to determine if they are reasonable, a ccepting the
billing rates as set forth in the fee agreement as the maximum rates that could b e
awarded. AID at 8 -9. In consider ing the hours claimed , she deni ed 6.5 hours as
not reasonably incurred . AID at 9 -10. In sum, the administrative judge found the
following hours reasonable: 157 hours for the primary attorney in 2015 at $375
per hour a nd 30.9 hours in 2016 at $385 per hour, and 10.7 hours and .5 hours
respectively, for the senior attorneys at $4 25 per hour, for a total of $75, 531.50.
AID at 10. However , the administrative judge found that the appellant’s partial
6
success before the Boa rd warranted a 40% reduction of the lodestar calculation ,4
resulting in a fee award of $45,318.90. AID at 11 -13. After reducing the
appellant’s request for costs of $1,764.26 to exclude those for deposition
transcripts and photocopying, the administrativ e judge awarded costs in the
amount of $ 239.46 for a total award of $45, 558.36. AID at 13.
¶8 The appellant has filed petition for review, Petition for Review (PFR) File,
Tab 1, the agency has responded, PFR File, Tab 5, and the appellant has
submitted a rep ly to that response, PFR File, Tab 6.
ANALYS IS
¶9 The agency has not challenged, by filing a petition for review, the
administrative judge’s finding s that the appellant is the prevailing party in this
appeal and that fees are warranted in the interest of just ice, and we discern no
basis upon which to disturb th ose findings.
Considering the fee agreement as a whole, the billing rates set forth there in are
the maximum rates that can be awarded.
¶10 On revi ew, the appellant first disputes the administrative judge’s finding
that the billing rates set forth in the fee agreement are the maximum rates that
could be awarded. PFR File, Tab 1 at 10-17. As noted, although the appellant
initially requested higher rates for the primary attorney an d the two senior
attorneys, A FF, Tab 1 at 11-14, 19 -22, he later conceded that he was responsible
for paying the firm at the attorneys’ regular hourly rate s, AFF, Tab 6 at 14, 26 -27.
After the record closed below, the appellant filed a Notice of Supplemen tal
Authority in which he again argued that the Laffey rates are the appropriate
hourly rates to be applied . In support of his claim, the appellant relied upon
Sarkis v. Department of Labor , MSPB Docket No s. DC -0752 -13-6582-A-1 and
4 In determining the amount of fees to be awarded, a useful starting point is multiplying
the hours reasonably spent on the litigation by a reasonable hourly rate, known as the
lodestar calculation. Hensley v. Eckerhart , 461 U.S. 424 , 433 (1983); Guy v.
Department of the Army , 118 M.S.P.R. 45 , ¶ 8 (2012).
7
DC-4324 -14-0151 -A-1, Initial Decision (Dec. 23, 2016) , wherein a nother Board
administrative judge applied the Laffey Matrix to award fees at the Laffey rate to
the same firm representing the appellant in the instant case . AFF, Tab 9 at 19.
While the Sarkis decision was new evidence in that it was issued after the close of
the record below , AFF, Tab 2, we find that the administrative judge did not abuse
her discretion in rejecting it, AID at 5; see Roche v. Department of
Transportation , 110 M.S.P.R. 286, ¶ 13 (2008) (holding that initial decisions of
the Board are not precedential ), aff’d , 596 F.3d 1375 (Fed. Cir. 2010) ; cf. Russo
v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (holding that the Board
generally will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision) . Additionall y, we note that after the initial decision in this
case was issued, but before the appellant filed his petition for review, the initial
decision in Sarkis was vacated and the appeal was dismissed as settled. Sarkis v.
Department of Labor , MSPB Docket Nos. DC-0752 -13-6582-A-1 and DC -4324 -
14-0151 -A-1, Initial Decision (Mar. 7, 2017). Nonetheless, because the
administrative judge in this case found that, even if she did consider the
appellant’s argument, she would still award fees based on the billing rates as set
forth in the fee agreement, AID at 8, we will address t he argument .
¶11 As noted, the agreement provided for a billing rate of $425 per hour of
attorney time, except that associates’ time would be billed at lower rates based on
years of experience. AFF , Tab 1 at 20. The agreement also provided that
“[u]pon . . . settling or prevailing in this case, the firm will apply for an award of
legal fees at the prevailing market rate.” Id. In rejecting the appellant’s
argument that the Laffey rates should appl y, the administrative judge relied on the
Board’s decision in Caros v. Department of Homeland Security , 122 M.S.P.R.
231, ¶¶ 7-13 (2015). There, the Board found that, although the fee structure
agreed to was not an hourly billing at $250 per hour, t he agreement did provide
that as an option, and that the appellant’s attorney acknowledged that she did
8
offer a billing rate of $250 per hour to some clients . Id., ¶ 11. The Board
considered he r affidavit asserting that she billed the appellant’s case at the rate of
$510 per hour, and her characterization that that was her customary rate, but
found that she failed, in her affidavit , to identify even a single case where she
charged a client $510 per hour or any other comparable rate, noting that the cases
she cited in support of her claim that she was paid Laffey rates were either Board
cases that were settled or Equal Employment Opportuni ty Commission (EEOC)
cases. The Board found that such evidence did not outweigh the specific
evidence that the attorney’s customary billing rate was $250 per hour. Id., ¶ 12.
¶12 The appellant argues that the administrative judge erroneously applied
Caros to the facts of this case, PFR File, Tab 1 at 14 -17, and that the fee
agreement in Caros is “distinctly and materially different” from the fee
agreement in his case becau se the agreement in Caros was based on a flat -fee
arrangement whereas his agreement is based on an hourly rate structure , id. at 15.
As set forth above, however, the Board found both options relevant for its
analysis, Caros , 122 M.S.P.R. 231 , ¶¶ 8, 11, concluding that neither option gave
any indication that the appellant was responsible for paying Laffey rates, id., ¶ 9.
¶13 Here, the ap pellant acknowledged that the regular hourly rates charged by
the primary attorney for the servi ces she performed for him were $ 375 per hour in
2015 and $385 per hour in 2016. AFF, Tab 6 at 14. Although the primary
attorney has listed a number of cases in which “[a]ttorneys in ou r firm” have been
paid at the Laffey rates, because those cases, as in Caros , are EEOC cases or
cases that were settled , AFF, Tab 1 at 26 -28, such evidence does not outweigh the
specific evidence that the customary rate for the primary attorney was $375 pe r
hour in 2015 and $385 per hour in 2016, and $425 per hour for the senior
attorneys , Caros , 122 M.S.P.R. 231 , ¶ 12 (2015); see also Doe v. Department of
State , 2022 MSPB 38 , ¶¶ 8-12 (finding that, when assessing what constitutes a
reasonable hourly rate in an attorney fees case, a requesting attorney, when
possible, should provide evidence of hourly rates charged by comparable lawyers
9
in the same community as the requesting attorney who practice litigation before
the Board). That specific evidence includes both the fe e agreement , AFF, Tab 1
at 20, and the appellant ’s acknowledgment that these are the attorneys’ customary
billings rates, AFF, Tab 6 at 26 -27. Additionally, there is no evidence that the
appellant was charged the lower rates because of his inability to pay. Cf.
Ishikawa v. Department of Labor , 26 M.S.P.R. 258 , 260 (1985) (finding that
counsel successfully rebutted the presumption that the agreed -upon rate was the
maximum fee awardable by showing that she agreed upon that rate only because
of the employee’s reduced ability to pay and that her customary fee for similar
work was significa ntly higher). Rather, the retainer agreement provides that the
firm has agreed to these rates “based upon the nature and merits of [ the
appellant ’s] case , in order to provide [him] with legal services on a matter of
public importance.” AFF, Tab 1 at 20 ; see Caros , 122 M.S.P.R. 231 , ¶ 13.
¶14 In further support of his claim that he should be awarded fees at the higher
rates, t he appellant points to a provision in the fee agreement which states that
“[i]f attorney s’ fees are recovered, the fee award will first be applied to any
unpaid balance due, then to reimburse me for fees and expenses I have paid the
firm for those hours and costs which have been awarded, and any remainder will
be retained by the firm.” AFF, Ta b 1 at 21. The appellant suggests that the word
“remainder” in the agreement should be read as the word “portion” in Tanner v.
Department of Defense , MSPB Docket No. DC -0752 -12-0209 -A-1, Final Order,
¶ 12 (Aug. 1, 2014) , wherein the Board construed a prov ision in the agreement
referring to “the $300 per hour portion of Attorney’s fees” to support a find ing
that the actual fees charged , in the event the appellant prevailed, were at rates of
$495 and $505 per hour. Id.; PFR File, Tab 1 at 16. Final orders, however, have
no precedential value and the Board is not required to follow or distinguish them
in future decisions. 5 C.F.R. § 1201.117 (c)(2). Even if we were to consider
Tanner , we would find it distinguishable because , unlike the agreement in this
10
case, the agreement in that case specifically provided that the appellant would be
charged the higher rate, consistent with the Laffey Matrix.
¶15 In sum, the appellant has not shown error in the administrative judge ’s
finding that, as in Caros , the language in the fee agreement does not provide that
the appellant was o bligated to pay a higher fee if he prevailed or that he was
charged a lower fee based on his inability to pay , AID at 9; see Caros,
122 M.S.P.R. 231 , ¶¶ 7-13, but rather that he agreed to pay at the lower rates,
AFF, Tab 1 at 20, rates he acknowledged were t he regular hourly rates charged by
the primary attorney and the two senior attorneys, AFF , Tab 6 at 14.
The total number of attorney hours requested, less 6.5, is reasonable.
¶16 The a ppellant does not, on review, challenge the administrative judge ’s
denial of 6.5 hours of attorney time requested as not reasonably incurred. PFR
File, Tab 1 at 9. The administrative judge may disallow hours for duplication,
padding, or frivolous claims, and impose fair standards of efficiency and
economy of time. Casali v. Department of the Treasury , 81 M.S.P.R. 347 , ¶ 14
(1999). Regarding those 6.5 hours, the administrative judge found that 1.5 was
due to the attorney’s failure to follow her directions, 1.5 was in excess of the time
reasonably spent on settlement discussions, 3.1 was due to the attorney’s work on
a pleading that was not allowed, and .4 was spent on a matter not related to th e
appeal. AID at 10. When , as here, the administrative judge held a hearing on the
merits of the underlying appeal, he is in the best position to evaluate the
documentation submitted by counsel to determine whether the amount requested
is reasonable and the quality of the representation afforded. Sprenger v.
Department of the Interior , 34 M.S.P.R. 664 , 669 (1987). The a ppellant has not
provided any new, previously unavailable evidence, and has alleged no legal or
procedural error, or abuse of discretion, by the administrative judge in this
regard. We discern no basis upon which to disturb the administrative judge ’s
factual findings regarding the reasonableness of the hours charged. Caros ,
122 M.S.P.R. 231 , ¶ 19.
11
¶17 We therefore find no error in the administrative judge ’s conclusion that the
agreed -upon hourly rates, as set forth in the fee agreement, multiplied by the total
number of hours requested, less 6. 5, yields an initial lodestar amount of
$75,531.50. AID at 10.
A 40% reduction to the lodestar is appropriate to account for the appellant’s
limited success on appeal.
¶18 The remaining issue for consideration is the appellant ’s challenge to the
administrative judge ’s decision to reduce the award by 40% based on the
appellant ’s partial or limited success in the merits phase of his Board appeal. The
administrative judge found that , when a party is entitled to an award of attorney
fees but did not succeed on every issue, the most important factor to be
considered in assessing the reasonableness of a fee award under the lodestar
calculation is the results that were obtained , and the Board should consider
whether the degree of success warrants an awar d based on all hours reasonably
spent on the litigation and, if not, what adjustment is appropriate. Driscoll v.
U.S. Postal Service , 116 M.S.P.R. 662 , ¶¶ 21, 27 (2011) ; AID at 11 -12.
¶19 On review, the appellant argues that, in considering the degree of success,
the administrative judge failed to weigh the significance of the relief obtained
against the relief sought. PFR File, Tab 1 at 19. The Supreme Court stated in
Hensley v. Eckerhart , 461 U.S. 424 , 436 (1983), that there is no “precise rule or
formula” in making such a determination. According to the appellant , the only
portion of the relief he sought but did not obtain was compensatory damages.
PFR File, Tab 1 at 19-20. The administrative judge found , however, and the
appellant does not dispute , that, notwithstanding, the only charge brought against
him was sustained , he did not prevail on either of his affirmative defenses, he
suffered the substantial penalty of a 45-day suspens ion, and he thus was left with
a disciplinary record. AID at 12. The administrative judge determined that,
under the facts and procedural history of this case, a global percentage reduction
was more appropriate to account for the appellant ’s limited degree of success.
12
AID at 12. Because the administrative judge is in the best position to make this
determination, we defer to the exercise of her discretion not to identify specific
hours that should be eliminated, but rather to reduce the ov erall award. Guy v.
Department of the Army , 118 M.S.P.R. 45 , ¶ 20 (2012) . We also defer to her
decision to impose a 40% reduction to reflect the appellant ’s limited success .
Smit v. Department of the Treasury , 61 M.S.P.R. 612 , 619 (1994) (holding that,
when a percentage reduction is appropriate, it is the administrative judge who is
in a better position to determine the appropriate amount of the deduction).
¶20 The appellant correctly argues on review that the administrative judge failed
to consider current post-Hensley case law on the issue of when it is appropriate to
impose a downward adjustment to the lodestar calc ulation. PFR File, Tab 1
at 22-24; Tab 6 at 4 -6, 9-11. We do so now. In addressing the issue of downward
adjustment, the Court , post Hensley , has cautioned against “double counting”
factors by adjusting the lodestar figure when the results obtained are fully
reflected in the reasonable hourly rate of the attorneys and the reasonable
numbers of hours expended. Blum v. Stenson , 465 U.S. 886, 899-900 (1984). In
Perdue v. Kenny A. ex rel . Winn , 559 U.S. 542 , 552 -53 (2010), the Court
reaffirmed that adjustment of the lodestar may be made only in “rare” and
“exceptional” circumstances, and that adju stments are warranted only when the
lodestar figure fails to take into account a relevant consideration that is not
subsumed therein.
¶21 Here, the lodestar figure, which the administrative judge granted almost in
its entirety and which we have not disturbed, does not take into account the
claims upon which the appellant did n ot prevail, or the fact that the sole charge
against him was sustained and that he suffered the substantial penalty of a 45 -day
suspension, leaving him with a disciplinary record. Because the lodestar does not
take these matters into consideration, we fin d that this case presents an
exceptional circumstance such that the factor “amount involved and results
obtained” should be considered as a n independent basis for departure from the
13
lodestar figure. Bywaters v. United States , 670 F.3d 1221 , 1230 (Fed. Cir. 2012).
As such, post -Henley case law supports our defer ring to the administrative
judge’s de termination to impose a downward adjustment of 40 %, resulting in a
fee award of $45,318.90. Our decision regarding this matter is unaffected by the
administrative judge’s initial decision in Sarkis or by the U.S. Court of Appeals
for the Federal Circuit’s decision in Howard v. Department of the Air Force ,
673 F. App’x 987 (Fed. Cir. 2016), as the agency urges. PFR File, Tab 1 at 22,
24; Tab 6 at 5 -7. As noted, initia l decisions are not precedential, Roche ,
110 M.S.P.R. 286, ¶ 13, and n either are unpublished decisions of the Federal
Circuit ’s. Bell v. Department of the Treasury , 54 M.S.P.R. 619, 629 n.10 (1992).
¶22 In sum, we find that the appellant has not shown error in the administrative
judge’s decision awarding him $45,558.36 in attorney fees and costs.5
ORDER
¶23 We ORDER the agency to pay the attorney of re cord $45,558.36 in fees and
costs . The agency must comple te 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)).
¶24 We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the atto rney 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).
¶25 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
5 The appellant has not challenged on review the administrative judge’s finding that he
is entitled to $239.46 in costs, AID at 13, and we discern no basis upon which to disturb
that finding.
14
petition for enforcement with the office that iss ued the initial decision on this
appeal, if the appellant or the attorney believes that the agency did not fully carry
out the Board’s Order. The petition should contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS6
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 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.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the servic es provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected b y an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil act ion with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
16
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Me rit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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:
17
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 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.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal 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
7 The original statutory provision that provi ded for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file pet itions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to Novem ber 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants 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 | GOLDSMITH_DANIEL_M_DC_0752_15_0520_A_1_FINAL_ORDER_2052745.pdf | 2023-07-24 | null | DC-0752 | NP |
2,859 | https://www.mspb.gov/decisions/nonprecedential/ETHERIDGE_DONOVAN_AT_1221_17_0769_W_1_REMAND_ORDER_2052206.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DONOVAN ETHERIDGE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-1221 -17-0769 -W-1
DATE: July 21, 2023
THIS ORDER IS NONPRECEDENTIAL*
Charity Gilchrist -Davis , Esquire, and Roderick T. Cooks , Esquire,
Birmingham, Alabama, for the appellant.
Daniel Dougherty , Colorado Springs , Colorado , for the agency.
Kathryn R. Shelton , Redstone Arsenal, Alabama, 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 as untimely filed . For the
reasons discussed below, we GRANT the appellant’s petition for review ,
* A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant held a General Engineer position with the agency’s Army
Space and Strategic Defen se Command in Huntsville, Alabama. Initial Appeal
File (IAF), Tab 1. On September 5, 2017, he filed the instant appeal, concerning
what he characterized as a January 3, 2017 reassignment or removal. Id. at 3, 5.
With his initial pleading, the appellant indicated that he previously had filed a
grievance on April 20, 2017, followed by a June 15, 2017 whistleblowing
complaint with the Office of Special Counsel (OSC), both about the same action.
Id. at 4. The appellant did not submit any evidence of the g rievance but did
submit documentation of the OSC complaint. Namely, he presented a June 15,
2017 preliminary determination letter from OSC, along with OSC’s June 30, 2017
close -out letter, which generally describe s the appellant’s allegations of
whistlebl ower retaliation. IAF, Tab 2 at 2 -8.
¶3 The administrative judge issued an acknowledgment order, construing the
appellant’s case as an IRA appeal . IAF, Tab 3. She separately issued a
timeliness order, warning that the appellant’s IRA appeal appeared to be untimely
by 2 days. IAF, Tab 4. That order instructed the appellant to present argument
and evidence concerning the timeliness of his IRA appeal. Id. at 3. After the
appellant failed to respond within the time provided for doing so, the
administrative judge issued an initial decision that dismissed the instant IRA
appeal as untimely. IAF, Tab 8, Initial Decision. The appellant has filed a
petition for review. Petition for Review (PFR) File, Tabs 1 -2, 4. The agency has
filed a response. PFR File, Ta b 6.
¶4 Under 5 U.S.C. § 1214 (a)(3)(A), once OSC closes its investigation into a
complaint, an appellant may file an IRA appeal with the Board within 60 days.
Under the Board’s regulations implement ing that statutory time limit, an IRA
3
appeal must be filed no later than 65 days after the date that OSC issues its
close -out letter, or, if the letter is received more than 5 days after its issuance,
within 60 days of the date of receipt. 5 C.F.R. § 1209.5 (a)(1).
¶5 As the administrative judge correctly noted, the 65 th day following OSC’s
closeout letter was September 3, 2017. IAF, Tab 2 at 2 -4. However, the
administrative judge failed to note that September 3, 2017, was a Sunday and that
September 4, 2017, was Labor Day , a Federal holiday. Under the se
circumstances, the filing period for the appellant’s IRA appeal included the first
workday that followed, September 5, 2017. See, e.g. , Pry v. Department of the
Navy , 59 M.S.P.R. 440, 442-43 (1993) (finding that the 65 -day filing deadline for
IRA appeals includes the next available business day if the deadline would
otherwise fall on a Saturday, Sunday, or Federal holiday). Accordingly, we find
that the appellant’s September 5, 2017 IRA appeal was timely, and the appeal
must be remanded for further adjudication.
¶6 On remand, the administrative judge should develop the record, as needed,
regarding the appellant’s election of remedies, jurisdiction, and , if necessary, the
merits of his claim before issuing a remand initial decision.
ORDER
¶7 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 | ETHERIDGE_DONOVAN_AT_1221_17_0769_W_1_REMAND_ORDER_2052206.pdf | 2023-07-21 | null | AT-1221 | NP |
2,860 | https://www.mspb.gov/decisions/nonprecedential/NEAL_JENNIFER_AT_0714_20_0742_I_1_FINAL_ORDER_2052260.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JENNIFER NEAL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0714 -20-0742 -I-1
DATE: July 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant .
Joy Warner , Karla Brown Dolby , and Sophia E. Haynes , Esquire, Decatur,
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
reversed the appellant’s performance -based removal, taken under 38 U.S.C.
§ 714. For the reasons set forth below, we DISMISS t he agency’s petition for
review 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 to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Effective August 10, 2020, the agency relied upon 38 U.S.C. § 714 to
remove the appellant from her GS -11 Field Examiner position for unacceptable
performance. Initial Appeal File (IAF), Tab 6 at 17, 19 -22. The appellant
challenged her removal in the instant appeal. IAF, Tab 1. After developing the
record and holding the requested hearing, the administrative judge ruled in favor
of the appellant, reversing her removal. IAF, Tab 55, Initial Decision (ID). In
short, the administrative judge considered a related decision by the Federal Labor
Relations Authority (FLRA) finding that individuals , such as the appellant ,
should have been afforded performance improvement periods (PIPs) prior to a
removal based on unacceptable performance , and thus the appellant’s removal
was not in accordance with law.2 ID at 2 -6.
¶3 The agency has filed a petition for review , and the appellant has responded.
Petition for Review (PFR) File, Tabs 1, 9. The agency has filed a reply. PFR
File, Tab 11. Due to intervening events and representations while this appeal was
pending on review, includi ng s ome about the FLRA decision the administrative
judge considered, the Office of the Clerk of t he Board issued multiple orders
seeking information about whether this appeal may have become moot. PFR File,
Tab 16, 19, 23. These orders and the parties’ r esponses addressed developments
stemming from two different series of arbitration and FLRA decisions pertaining
to 38 U.S.C. § 714 and performance -based actions and the agency’s bargaining
obligati ons regarding the implementation of the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017. PFR File, Tabs 14,
16-20, 22 -28; see U.S. Department of Veterans Affairs Veterans Benefits
2 The administrative judge ordered the agency to provide interim relief if either party
filed a petition for review. ID at 7 -8. The parties made various arguments about
interim relief on petition for review. PFR File, Tabs 1, 7, 10. After the administrative
judge issued her initial decision, the Board held that interim relief is precluded in
actions taken under 38 U.S.C. § 714. Schmidt v. Department of Veterans Affairs ,
2022 MSPB 40 , ¶¶ 9-16; see 38 U.S.C. § 714(d)(7). In light of our disposition of this
appeal, we need not discuss this issue further.
3
Administration v. American Federatio n of Government Employees National
Veterans Affairs Council #53 , 71 F.L.R.A. 1113 (2020), recon. denied
72 F.L.R.A. 407 (2021) (PIP decisions); American Federation of Government
Employees National Veterans Affairs Council #53 v. U.S. Department of Veterans
Affairs , 71 F.L.R.A. 410 (2019), recon. denied 71 F.L.R.A. 741 (2020) (duty to
bargain decisions).
¶4 Even though an action may have been within the Board’s jurisdiction,
subsequent events may render an appeal moot and foreclose the Board’s review.
Price v. U.S. Postal Service , 118 M.S.P.R. 222 , ¶ 8 (2012). Mootness can arise at
any stage of litigation, and an appeal will be dismissed as moot when, by virtue of
an intervening event, the Board cannot grant any effectual relief in favor of the
appellant, as when the appellant, by whatever means, obtained all of the relief she
could have obtained had she prevailed before the Board and the reby lost any
legally cognizable interest in the outcome of the appeal. Id. The agency’s
unilateral modification of its personnel action after an appeal has been filed
cannot divest the Board of jurisdiction, unless the appellant consents to such
divesti ture or the agency completely rescinds the action being appealed. Id. For
an appeal to be deemed moot, the agency’s rescission must be complete, i.e., the
appellant must be returned to the status quo ante and not left in a worse position
as a result of t he cancellation than she would have been in if the matter had been
adjudicated and she had prevailed. Id.
¶5 While its petition for review remained pending, the agency determined that
the appellant was entitled to relief pursuant to the FLRA’s PIP decision s,
including retroactive cancellation of her removal. PFR File, Tab 18 at 4 -5, 84 -85,
Tab 22 at 4, 7 -11. Both parties have now indicated that the agency cancelled the
appellant’s rem oval, returned her to duty, and altogether made her whole . PFR
File, Ta b 27 at 4, Tab 28 at 4 -5. Both parties have further indicated that the only
issue that remains is attorney fees. PFR File, Tab 27 at 4, Tab 28 at 4. However,
the incurrence of costs and attorney fees will not prevent dismissal of an appeal
4
as moot becau se an attorney fee award under 5 U.S.C. § 7701 (g) is considered to
be separate from relief on the merits. Price , 118 M.S.P.R. 222 , ¶ 8 n.2.
¶6 Because the agency has granted the appellant all the relief the Board could
have afforded her in this appeal, the petition for review is dismissed as moot.
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.), sectio ns 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 at torney 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
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully fo llow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant see king
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for th e Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide f or Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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 re presentative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimi nation based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a r epresentative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 cla ims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in cert ain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 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.
Contact information for the courts of appeals can be 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 | NEAL_JENNIFER_AT_0714_20_0742_I_1_FINAL_ORDER_2052260.pdf | 2023-07-21 | null | AT-0714 | NP |
2,861 | https://www.mspb.gov/decisions/nonprecedential/JUNEJA_PAWAN_SF_1221_15_0504_X_1_FINAL_ORDER_2052303.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAWAN JUNEJA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
SF-1221 -15-0504 -X-1
SF-1221 -15-0504 -C-1
DATE: July 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pawan Juneja , Beverly Hills, California, pro se.
Thomas L. Davis , Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 In an October 25, 2016 compliance initial decision, the administrative judge
found the agency in noncompliance with the Board’s June 12, 2015 decision
dismissing the appellant’s appeal based on a settlement agreement entered into
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
the record for enforcement by the Board. Juneja v. Department of Veterans
Affairs , MSPB Docket No. SF -1221 -15-0504 -C-1, Compliance File (CF), Tab 1 2,
Compliance Initial Decision (CID) ; Juneja v. Department of Veterans Affairs ,
MSPB Docket No. SF -1221 -15-0504 -W-1, Initial Appeal Fi le (IAF), Tab 12 ,
Initial Decision (ID) . The appellant filed a petition for review of the CID, which
the Board granted on June 21, 2022. Juneja v. Department of Veterans Affairs ,
MSPB Docket No. SF -1221 -15-0504 -C-1, Order at 1 (June 21, 2022); Juneja v.
Department of Veterans Affairs , MSPB Docket No. SF -1221 -15-0504 -C-1,
Compliance Petition for Review (CPFR) File, Tab 5. The Board referred the
outstanding compliance issues to the Board’s Office of General Counsel for
further consideration , docketing the subsequent proceedings under Juneja v.
Department of Veterans Affairs , MSPB Docket No. SF -1221 -15-0504 -X-1,
Compliance Referral File (CRF) . June 21, 2022 Order , ¶¶ 12-14; CPFR File,
Tab 5. We now JOIN these appeals for processing , and f or the reasons discussed
below, we find the agency is now in compliance and DISMISS the petition for
enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In the June 21, 2022 Order, the Board found that the agency was not in
compliance with the se ttlement agreement because it uploaded to the appellant’s
Official Personnel File (OPF) an incorrect copy of the appellant’s written
comment that he supplied to the agency pursuant to the terms of their settlement
agreement. June 21, 2022 Order, ¶¶ 7-9; CPFR File, Tab 5. As a result, the
Board ordered the agency to remove the incorrect copy of the appellant’s written
comment from his OPF and replace it with a clean copy of his written comment –
one without markings on the document indicating it was submitt ed through the
Board’s e -Appeal application. June 21, 2022 Order, ¶ 10; CPFR File, Tab 5.
¶3 On August 5, 2022, the agency submitted a pleading in response to the
Board’s June 21, 2022 Order . CRF , Tab 2. The agency stated that the agency
3
replaced the inc orrect copy of the appellant’s submitted comment from his OPF
with a correct copy that did not include the Board’s e -Appeal markings on the
document , and provided evidence in support of its assertion . Id. The appellant
did not file any response to the ag ency’s submission .
ANALYSIS
¶4 A settlement agreement is a contract and, as such, will be enforced in
accordance with contract law. Burke v. Department of Veterans Affairs ,
121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement
that has been entered into the record in the same manner a s a final Board decision
or order. Id. When the appellant alleges noncompliance with a settlement
agreement, the agency must produce relevant material evidence of its compliance
with the agreement or show that there was good cause for noncompliance. Id.
The ultimate burden, however, remains with the appellant to prove breach by a
preponderance of the evidence. Id.
¶5 Here, the agency has submitted an explanation of its compliance efforts,
supported by documentary evidence. CRF, Tab 2 at 3, 5 -9. The appe llant has not
responded, despite the notice in the Board’s order that if he failed to respond, the
Board might assume he was satisfied and dismiss the petition for enforcement.
June 21, 2022 Order, ¶ 15; CPFR File, Tab 5. Accordingly, the Board assumes
that he is satisfied . Therefore, based on the agency’s submission and the
appellant’s lack of response , we find that the agency is now in full compliance
with the Board’s June 12, 2015 Order.
¶6 Accordingly, the Board finds that the agency is in compliance an d dismisses
the petition for enforcement. This is the final decision of the Merit Systems
Protection Board in these compliance proceeding s. Title 5 of the Code of Federal
Regulations, section 1201.183(b) ( 5 C.F.R. § 1201.183 (b)).
4
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 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
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for 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 mos t appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informat ion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pr actice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC rev iew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you 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
6
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 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
7
disposition of allegations of a prohibited personnel 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.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 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 info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 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.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JUNEJA_PAWAN_SF_1221_15_0504_X_1_FINAL_ORDER_2052303.pdf | 2023-07-21 | null | S | NP |
2,862 | https://www.mspb.gov/decisions/nonprecedential/PAYTON_AMY_TERRELL_AT_1221_16_0592_W_1_REMAND_ORDER_2052333.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AMY TERRELL PAYTON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -16-0592 -W-1
DATE: July 21, 2023
THIS ORDER IS NONPRECEDENTIAL1
Amy Terrell Payton , Gulfport, Mississippi, pro se.
Alyssa W. Silberman , Esquire and Johns ton B. Walker , Esquire, Jackson,
Mississippi, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
dismissed her individual right of action (IRA) appeal on the basis that she failed
to make a protected disclosure . For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requ ired to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 review . We MODIFY the initial decision to find that the
appellant established jurisdiction over her claims of retaliation for her disclosure
about sexual assault by the union president and for her prior Board appeal and
that she did not establish jurisdiction over her alleged disclosure about a lock to
the dementia unit. We VACATE the initial decision ’s finding that the appellant
failed to make a protected disclosure when she stated that the union president
sexually assaulted her and that she failed to engage in protected activity when she
filed a p rior Board appeal and REMAND the case to the regional office for a
determination of whether the agency proved by clear and convincing evidence
that it would have reassigned the appellant and removed her absent her protected
disclosure and activity .
BACK GROUND
¶2 The appellant was employed as a Nursing Assistant. Payton v. Department
of Veterans Affairs , MSPB Docket No. A T-0752 -14-0055 -I-1, Initial Appeal File
(0055 IAF), Tab 4 at 9. On June 13, 2013, the agency proposed her removal on
the basis of the fol lowing charges: (1) endangering the safety of a veteran when
she failed to secure a padlock on the exit of an agency facility unit thus leading to
the escape of a dementia patient ; (2) leaving her work area through the gate; and
(3) two specifications of lack of candor when she told the Charge Nurse that she
had led the patient to the pier , despite the fact that he had escaped , and when she
prepared a written statement about the incident indicating that the patient had not
escaped. Id. at 27 -30. After co nsidering the appellant’s reply, the deciding
offic ial sustained the charges and imposed the removal, effective August 24,
2013. Id. at 15-24.
¶3 On September 20, 2013, the appellant filed a Board appeal challenging the
removal and requested a hearing. 0055 IAF, Tab 1. On August 28, 2014, a fter
conducting the appellant’s requested hearing, the administrative judge issued an
initial decision that sustained the removal. 0055 IAF, Tab 29, Initial Decision
3
(0055 ID). He sustained only charges 1 and 3 and found a nexus between the
charged misconduct and the efficiency of the service . 0055 ID at 4-11. He also
found that , under the standard set forth in Warren v. Department of the Army ,
804 F.2d 654 , 656 –58 (Fed. Cir. 1986) , the appellant failed t o prove her
affirmative defense s of whistleblower2 retaliation for reporting allegations of
sexual assault to the equal employment opportunity ( EEO ) office and gender
discrimination on the basis of her allegations about the union president . 0055 ID
at 18 -19. Additionally, he found that the agency did not commit a due process
violation or harmful error by considering ex parte information not contained in
the proposal. 0055 ID at 20. He found that the chosen penalty was reasonable
and thus he sustained the removal . 0055 ID at 11 -16, 20.
¶4 The Board considered the appellant’s petition for review and did not sustain
the removal , finding that the agency violated her due process rights by
considering aggravating factors that were not contained in the proposal. Payton
v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -14-0055 -I-1,
Final Order (0055 Final Order) , ¶¶ 4 -10 (Jan. 29, 2015). However, the Board
agreed with the administrat ive judge that the appellant failed to prove her
affirmative defenses of retaliation for her accusations against the union president
and gender discrimination. Id., ¶¶ 11 -13.
¶5 On April 8, 2013, prior to the first proposed removal, the appellant had
reporte d to an agency psychologist that the union president had sexually assaulted
her. The psychologist referred her to the EEO office. Payton v. Department of
Veterans Affairs , MSPB Docket No. AT -1221 -16-0592 -W-1, Initial Appeal File
(0592 I AF), Tab 17 at 26 , 37. On April 9, 2013, the EEO manager referred the
appellant’ s complaint to the agency’s police department, which inter viewed her
2 The Warren standard is not applicable to whistleblower claims under 5 U.S.C.
§ 2302 (b)(9). Thus, to the extent the administrative judg e considered the appellant’s
claim as such, it should have been analyzed under the standard set forth in 5 U.S.C.
§ 1221 (e). See Alarid v. Department of the Army , 122 M.S.P.R. 600 , ¶ 15 (2015).
4
on April 11 , 2013. Id. The police and the Office of Inspector General (OIG)
continued the investigation. Id. at 29.
¶6 The appellant had an initial EEO interview regarding the sexual harassment
and assault on May 14, 2013, and a mediation with the Associate Nurse
Executive, who was the proposing official during the first removal action, on
June 11, 2013. Id. at 9-11, 36-38; 0592 I AF, Tab 15 at 4. Shortly after the
mediation, the agency proposed the removal on June 13, 2013 , and imposed the
removal , effective August 24, 2013 . 0055 IAF, Tab 4 at 15 -30.
¶7 On Febru ary 6, 2014, after the appellant had initiat ed her Board appeal on
September 20, 2013 , the Medical Center Director, who served as the deciding
official in both removal actions, authorized an investigation into the appellant’s
allegations of sexual harassment and assault by th e union president. 0592 I AF,
Tab 17 at 22. The investigation was conducted from February 11 -12, 2014 . Id.
On May 9, 2014, the agency’s Administrative Investigation Board (AIB) issued a
report of investigation finding that the union president had committed the
criminal offense of sexual assault and that the EEO manager and others should
have pursued the issue as a criminal offense but failed to do so. Id. at 22 -30. In
rendering its decision, the AIB considered the appellant’s testimony and evidence
of her report to the OIG . Id. In response, on July 18, 2014, the deciding official
issued a letter to the union president stating that, after reviewing the AIB report,
he found that the accusations against the union president were unsubstantiated but
that he should treat all persons with respect , refrain from conduct that is
undignifie d and discourteous, and not make remarks of a disparaging and
demeaning nature . Id. at 32.
¶8 The administrative judge i ssued the first initial decision on August 28,
2014, and the Board issued its Final Order on January 2 9, 2015 , not sustaining the
removal . 0055 ID; 0055 Final Order. On May 6, 2015, the first proposing
official issued the appellant a letter changing her work assignment to a position
that did not involve patient care pending review of an incident that occurred on
5
October 20, 2012 ,3 for which she was suspended for 7 days.4 0592 IAF , Tab 6
at 22, 35 -53. On May 15, 2015, the proposing official proposed to remove the
appellant on the basis of charges 1 and 3 from the previously imposed removal .5
Payton v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -14-0055 -
C-1, Compliance File (CF), Tab 1 at 11 -15. The agency rescinded its proposal on
September 9, 2015 , and, on that same date, a new proposing official, the
Associate Director of Patient Care Services, proposed the appellant’s removal on
the basis of the same charges. CF, Tab 12 at 11-14. On No vember 2, 2015, th e
deciding official imposed the removal again , effective November 13, 2015 .
0592 IAF, Tab 6 at 12 -15.
¶9 The appellant had initially filed a complaint with the Office of Special
Counsel (OSC) on October 9, 2015, prior to the i ssuance of the removal decision.
0592 IAF , Tab 1 at 11, 39. On February 18, 2016, OSC made the preliminary
determination to close out its investigation and, on March 31, 2016, after
considering the appellant’s additional submissions, issued its closeout letter
finding that the appellant failed to demonstrate whistleblower retaliation .6
3 The reassignment letter states that the incident occurred on October 2, 2012, but the
proposal to suspend the appellant states that the incident occurred on October 20, 2012.
0592 IAF, Tab 6 at 26, 38 -40.
4 The appellant was charged with failure to follo w instructions and conduct unbecoming
a Federal employee when she refused to assist residents with their meals and screamed
at agency officials. 0592 IAF, Tab 6 at 35 -39. The agency initially proposed a 14 -day
suspension but then mitigated the suspension to a 7 -day suspensio n that was imposed
from April 8 -14, 2013. Id. at 35 -39.
5 On May 26, 2015, the Daily Caller published an article about the agency’s actions
regarding the union president entitled, “Federal Union Leader at VA Gets Official Hand
Slap fo r Sexual Assault.” 0592 IAF, Tab 17 at 33 -35. In particular, the article quoted
the AIB findings, cited the deciding official’s letter to the union president, and quoted a
hospital spokeswoman who declined to comment on the deciding official’s letter and
stated that the AIB’s findings do not dictate the agency’s discipline. Id.
6 OSC also stated that it did not have the authority to consider the appellant’s claims of
“double jeopardy” or that her removal was contrary to law. 0592 IAF, Tab 17 at 40, 48 .
6
0592 IAF, Tab 17 at 39-48. OSC considered the appellant’s assertion that she
was removed in 2013 and 2015 in retaliation for filing an EEO complaint
regarding the union president’s sexual assault but stated that it would defer such
allegations to the EEO process. Id. at 39-40, 45. OSC also considered the
appellant’s allegations that the agency reassigned her duties and removed her in
retaliation for disclosing issues with the gate lock and for filing a prior Board
appeal regarding her previo us removal. Id. at 45 -47. OSC found tha t, although
these constituted a protected disclosure and protected activity of which agency
officials were aware, there was no evidence that the agency’s actions were pretext
for reprisal.7
¶10 The appellant then filed the instant IRA appea l. 0592 IAF , Tab 1 . After
holding the appellant’s requested hearing, the administrative judge denied her
request for corrective action , finding that she failed to demonstrate that she
disclosed the issues with the lock on the gate to an agency official and that she
did not engage in protected activity because the Board does not have jurisdiction
over EEO matters in an IRA appeal and her prior Board appeal did not concern
whistleblower retaliation. 0592 IAF , Tab 31, Initial Decision ( 0592 ID) at 3 -8.
¶11 The appellant has filed a petition for review and the agency has responded
in opposition to her petition. Petition f or Review (PFR) File, Tabs 1, 3.
7 OSC found that the appellant was prohibited from challenging the first removal
because sh e had previously filed a Board appeal regarding the same action. 0592 IAF ,
Tab 17 at 47. We agree. 5 U.S.C. § 7121 (g) (stating that an employee may elect no
more than one of the following remedies: a direct appeal to the Board; a negotiated
grievance procedure pursuant to 5 U.S.C. § 7121 ; or a re quest for corrective action with
OSC, pote ntially to be followe d by an IRA appeal to the Board); see Sherman v.
Department of Homeland Security , 122 M.S.P.R. 644 , ¶ 13 (2015) (finding that the
appellant’s election to grieve his fiscal year performance evaluation foreclosed the
Board’s jurisdiction over his IRA appeal regarding the evaluation).
7
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has established jurisdiction over her claims of whistleblower
retaliation for her disclosure about the union president and for filing her prior
Board appeal bu t not her alleged disclosure about the gate lock .
¶12 The appellant may establish jurisdiction over this IRA appeal if she
demonstrates that she exhausted h er administrative remed y before OSC8 and
makes nonfrivolous allegations of the following: (1) she made a protected
disclosure under 5 U.S.C. § 2302 (b)(8) or engage d in protected activity under
5 U.S.C. §2302 (b)(9)(A)(i), (B), (C), or (D) ; and (2) the disclosure or activity was
a contributing factor in the agency ’s decision to take or fail to take a personnel
action.9 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Yunu s v. Department of Veterans
Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001) ; Salerno v. Department of the
Interior , 123 M.S.P.R. 230 , ¶ 5 (2016) .
¶13 If an appellant establishes jurisdiction over h er IRA appeal, she is entitled
to a hearing on the merits of her claim, which she must prove by preponderant
evidence.10 Salerno , 123 M.S.P.R. 230, ¶ 5. If she proves that h er protected
disclosure or activity was a contributing factor in a personnel action taken against
her, the agency is given an opportunity to prove, by clear and convincing
8 It is undisputed that the appellant e xhausted her administrative remedy before OSC , as
she filed an OSC complaint and OSC issued its closeout letter on March 31, 2016. 0592
IAF, Tab 17 at 39 -48. OSC’s correspondence reflects that the appellant exhausted her
claims that the agency retaliated against her for reports about the union president’s
sexual assault, her disclosure about the gate lock, and her prior Board appeal in which
she had asserted an affirmative defense of whistleblower retaliation. Id.
9 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 appeal. Lewis ,
123 M.S.P.R. 255 , ¶ 7; 5 C.F.R. § 1201. 4(s).
10 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).
8
evidence, that it would have taken the same personnel act ion in the absence of the
protected disclosure or activity . 5 U.S.C. § 1221 (e)(1) -(2); Carr v. Social
Security Administration , 185 F.3d 1318 , 1322 –23 (Fed. Cir. 1999) ; see Salerno ,
123 M.S.P.R. 230 , ¶ 5.11
¶14 Before addressing the merits of an IRA appeal, the Board is required to
determine first whether all jurisdictional requirements have been met . McCarty v.
Environmental Protection Agency , 105 M.S.P.R. 74, ¶ 7 (2007); see El v.
Department of Commerce , 123 M.S.P.R. 76 , ¶ 13 (2015), aff’d , 663 F. App’x 921
(Fed. Cir. 2016). However, by holding a hearing, an administrative judge makes
an implicit finding that an employee made at least one nonfrivolous allegation
that she made a protected disclosure that was a contributing factor in the agency’s
decision to take or fail to take at least one personnel action. See Mastrullo v.
Department of Labor , 123 M.S.P.R. 110 , ¶ 15 (2015).
¶15 Although the administrative judge held a hearing, he did not make specific
findings as to each disclosure and activity and thus we do so here . We modify the
initial decision to first find that the appellant did not nonfrivolously allege that
she disclosed a substantial and specific danger of public health and safety about
problems with the gate lock in the dementia unit , but did nonfrivolously allege
that she disclosed a violation of a law, rule, or regulation when she disclosed that
the union president as saulted her. We also modify the initial decision to find
jurisdiction over her claim that she engaged in protected activity when s he filed
her prior Board appeal .
11 The Federal Circuit decided Carr prior to the enactment of the Whistleblower
Protection Enhancement Act of 2012 , Pub. L. No. 112 -199, 126 Stat. 1465 . However,
subsequent changes in the law do not affect the relevant holding.
9
The appellant failed to establish jurisdiction over her alleged disclosure about the
gate to the dementia unit .
¶16 We find that the appellant failed to nonfrivolously allege that she made a
protected disclosure of a substantial and specific danger to public health and
safety. A protected disclosure is a disclosure of information that the appellan t
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 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 her 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.
¶17 Before OSC, the appellant asserted that she disclosed concerns to her
supervisors about the lock on the gate of the dementia unit , which could
constitute a disclosure of a substantial and specific danger to public health and
safety. 0592 IAF , Tab 1, Tab 17 at 45; see Chambers v. Department of the
Interior , 602 F.3d 1370 , 1376 (Fed. Cir. 2010) (explaining that to determine
whether the appellant has made a disclosure that is sufficiently substantial and
specific, the Board will consider the likelihood of the harm, when the alleged
harm will occur, and the nature of the harm, i.e., its potential consequences) ; see
also Aquino v. Department of Homeland Security , 121 M.S.P.R. 35, ¶ 13 (2014).
However, we agree with the administrative judge that the appellant failed to
present any evidence that she in fact made the disclosure . 0592 ID at 4-6.12
Accordingly, we find that the appellant has failed to establish jurisdiction over
12 In addition, as the administrative judge notes, the appellant testified at the hearing
that she did not believe the gate was a factor in her removal. 0592 ID at 6 (citing
Hearing Recording at 2:13: 10-33 and 2:14:55 -59 (testimony of the appellant) ).
10
this alleged disclosure. See El , 123 M.S.P.R. 76, ¶ 6 (stating that vague,
conclusory, unsupported, and pro forma allegations of alleg ed wrongdoing do not
meet the nonfrivolous pleading standard) ; 5 C.F.R. § 1201.4 (s).
We modify the initial decision to find that the appellant participated in protected
activity when she filed her prior Board appeal .
¶18 Pursuant to 5 U.S.C. § 2302 (b)(9)(A)(i), an appellant engages in protected
activity when she “ exercise [s] . . . any appe al, complaint, or grievance right
granted by any law, rule, or regulation with regard to remedying a violation of
[5 U.S.C. 2302 (b)(8 )].” Graves v. Department of Veterans Affairs , 123 M.S.P.R.
434, ¶ 18 (2016). The administrative judge found that the appellant’s prior Board
appeal did not involve a claim of whist leblower retaliation and thus did not
constitute protected activity. 0592 ID at 8. However, in th at prior decision, the
administrative judge stated that th e appellant had asserted an affirmative defense
of whistleblower retaliation when she alleged that the agency removed her in
retaliation for reporting sexual assault by the union president to the EEO office.13
0055 ID at 16 -18. We find that , even if her claim was not successful, she had
asserted an affirmative defense of whistleblower retaliation , and thus her Board
appeal constituted protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i).
Accordingly, we find that the appellant’s prior Board appeal constituted protected
activity. See Elder v. D epartment of the Air Force , 124 M.S.P.R. 12 , ¶ 40 (2016)
(stating that the appellant’s claim that the agency’s removal action was taken in
retaliation for his prior Board appeal , in which he had raised an affirmative
defense under 5 U.S.C. § 2302 (b)(8) , and two separate petitions for enforcement
should be analyzed under 5 U.S.C. § 2302(b)(9)(A)(i)).
13 The decision considered the appellant’s allegation under the standard set forth in
Warren , 804 F.2d at 656 -58, and found that, even if the appellant made a protected
disclosure and the deciding official was aware of the disclosure, the deciding official’s
decision failed to raise even the inference of retaliation and there was no nexus between
any alleged retaliation and the adverse action. 0055 ID at 16 -18.
11
The appellant m ade a protected disclosure of a violation of law, rule, or
regulation when she disclosed that the union presid ent sexually assaulted her .
¶19 The administrative judge found that the appellant’s activity regarding the
union president within the EEO process was not protected because filing an EEO
complaint is not protected activity. 0592 ID at 6 -7; see Applewhite v. Equal
Employment Opportunity Commission , 94 M.S.P.R. 300 , ¶ 13 (2003) (stating that
disclosures that are limited to EEO matters are not protected) . However, in
analyzing her activity , the administrative judge did not address the appellant’s
statements regarding the union president’s criminal activity or the other
information from the AIB. We find that the appellant’s statements relating to
criminal misconduct concern disclosures of a violation of criminal law and that
the appellant made protected disclosures about the sexual assault, as detailed in
the AIB report .14
¶20 The appellant reported that the union president sexually assaulted her in an
interview by agency police in conjunction with an OIG and a police inv estigation ,
an affid avit to the AIB , and testimony before the AIB. 0592 IAF , Tab 17
at 22-30. The AIB determined that the union president committed the criminal
offense of sexual assault. Id. at 29 -30. Accordingly, we find that she made a
disclosure of the union president’s violation of a law and that her disclosure was
protected.15 See Mastrullo , 123 M.S.P.R. 110 , ¶ 22 (finding that the appellant
14 On April 8, 2015, prior to the issuance o f the AIB report, the agency issued its final
agency decision (FAD), finding that the appellant failed to prove her discrimination
complaint. 0592 IAF, Tab 1, Tab 17 at 31. The appellant appealed to the Equal
Employment Opportunity Commission (EEOC) on M ay 11, 2015. 0592 IAF, Tab 17
at 31. Although we have not considered the contents therein, we note that, while this
petition for review was pending, the EEOC issued its November 29, 2017 decision
finding no discrimination. Darlena H. v. Department of Ve terans Affairs , EEOC
Appeal No. 0120151838, 2017 WL 6422312 (Nov. 29, 2017).
15 The Board has held that participating in an AIB investigation does not constitute
protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i) , in that it was not the exercise of
any appeal, complaint, or grievance right granted by any law, rule, or regulation , and
thus the appellant’s testimony before the AIB was not protected as testimony or other
12
made a protected disclosure that his coworker violated a law, rule, or regulation
by criminally harassing him).
The appellant’s prior Board appeal and disclosure about the union president were
contributing factors to her reassi gnment and removal.
¶21 To prove that a disclosure was a contributing factor in a personnel action,
the appellant only need demonstrate that the fact of, or the content of, the
protected disclosure was one of the factors that tended to affect a personnel actio n
in any way. See Mastrullo , 123 M.S.P.R. 110, ¶ 18. The knowledge/timing test
allows an employee to demonstrate that the di sclosure 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 reas onable person could
conclude that the disclosure was a contributing factor in the personnel action.
Id.; see 5 U.S.C. § 1221 (e)(1). Once the knowledge/timing test has been met, the
appellant has shown that her whistleblowing was a contributing factor in the
lawful assistance under 5 U.S.C. § 2302 (b)(9)(B). Graves , 123 M.S.P.R. 434 , ¶¶ 18-20.
Thus, t he appellant’s testimony before the AIB did not constitute protected activity
under 5 U.S.C. § 2302 (b)(9)(A)(i). After the initial decision was issued , Congress
passed section 1097(c)(1) of the National Defense Aut horization Act for Fiscal Year
2018 , Pub. L. No. 115-91, 131 Stat. 1283 (2017), which amended 5 U.S.C.
§ 2302 (b)(9)(C) to provide protections for individuals who coopera te or disclose
information to “ any other co mponent responsible for internal investigation or review .”
However, as we found in Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 28-32,
this statute is not re troactive. Accordingly, we find that the appellant’s participation in
the AI B investigation did not constitute protected activity.
To the extent that the appellant is asserting retali ation for participation in an OIG
investigation prior to the AIB investigation or that she was otherwise a perceived
whistleblower, we decline to address these arguments because she is raising them for
the first time on petition for review without showing that they are based on evidence
previously unavailable despite her due diligence . PFR File, Tab 1 at 5-6; see Clay v.
Department of th e Army , 123 M.S.P.R. 245 , ¶ 6 (2016) . Moreover, there is no evidence
that the appellant ever raised these issues with OSC. See D’Elia v. Department of the
Treasury , 60 M.S.P.R. 226 , 231 (1993) , overruled on other grounds by Thomas v.
Department of the Treasury , 77 M.S.P.R. 224 (1998), overruled in part on other
grounds by Ganski v. Department of the Treasury , 86 M.S.P.R. 32 (2000).
13
personnel action at issue, even if , after a complete analysis of all of the evidence ,
a reasonable factfinder could n ot conclude that her whistleblowing was a
contributing factor in the personn el action. Mastrullo , 123 M.S.P.R. 110, ¶ 18.
¶22 It is undisputed that a decision to reassign or remove the appellant
constitute s a personnel action. 5 U.S.C. § 2302 (a)(2)(A)(iii), (iv). Thus, the
agency took two personnel actions against the appellant when it reassigned her
and imposed her removal.
¶23 Further, we find that the deciding official and first proposing official knew
about the appellant’s prior Board appeal and disclosure about the union president
before reassigning her and removing her. Both the deciding official and the first
proposing official, who drafted the letter reassigning the appellant’s duties, knew
about the appellant’s prior Board appeal because they both testified at the hearing
in that appeal. 0055 ID. The deciding official also knew about the appellant’s
disclosures r egarding the sexual assault , as he originally authorized the
investigation of the incident and reviewed the AIB report , which described the
disclosures, when he sent the letter to the union pre sident . 0592 IAF , Tab 17
at 22, 32. We also find that the first proposing official knew about at least some
of the appellant’s disclosures that were used by the AIB as she engaged in
mediation with the appellant about the sexual assault after she had been
interviewed by the police about the incident.16 0592 IAF , Tab 15 at 4, Tab 17
at 9-11, 26.
¶24 The Board has held that personnel actions taken within 1 to 2 years of the
protected disclosure satisfy th e timing prong of the knowledge/ timing test . See,
e.g., Mastrullo , 123 M.S.P.R. 110, ¶ 21. Even if the personnel actions have not
occurred within this time period, the Board also may consider whether the
16 We cannot determine conclusively whether the second proposing official knew about
or had constructive knowledge of the disclosures and activity.
14
personnel actions flow from one anot her. See Agoranos v. Department of Justice ,
119 M.S.P.R. 498, ¶ 22 (2013).
¶25 The appellant filed the prior Board appeal in September 2013, the
administrative judge issued the initial decision in August 2014, and the Board
issued its Final Order in January 2015. 0055 Final Order; 0055 ID; 0055 IAF,
Tab 1. Her disclosures regarding the assault began in April 2013 and culmin ated
in the AIB’s report in May 2014. 0592 IAF , Tab 17 at 22 -30. The appellant’s
reassignment occurred in May 2015 and she was removed in November 2015.
0592 IAF , Tab 6 at 12 -15, 22. Further, the appellant’s reassignment and removal
followed a previous re moval that had been overturned on due process grounds.
0055 Final Order. We note that the appellant’s disclosures t o the AIB , beginning
in April 2013 , and her Board appeal in September 2013 , began slightly more than
2 years before the personnel actions a t issue. However, the disclosures continued
through the AIB and Board appeal process and the disciplinary action s arose
initially from the appellant’s previous removal and the Board’s order not
sustaining the removal . Accordingly, we find that, based on the time frame and
the continuity of the disclosures and personnel actions, the appellant has
demonstrated that her disclosures to the AIB and her previous Board appeal were
a contributing factor to her removal.
We remand the appeal for an analysis of whether the agency proved by clear and
convincing evidence that it would have removed the appellant absent her
protected disclosure and activity .
¶26 To determine whether the agency proved by clear and convincing evidence
that it would have removed the appella nt absent her protected disclosure and
activity , all evidence that supports the agency’s case and detracts from it must be
weighed together. Whit more v. Department of Labor , 680 F.3d 1353 , 1368 (Fed.
Cir. 2012). Because the administrative judge did not find that the appellant made
a protected disclosure or engage d in protected activity that was a contributing
factor to her removal, he did not reach the issue of whether the age ncy met its
15
burden. 0592 ID at 8-9. However, as discussed above, we find that she made a
protected disclosure about the union president and engaged in protected activity
by filing a prior Board appeal and that these were contributing factor s in her
remov al. Therefore , the issue of the agency’s burden must be adjudicated. We
find that the administrative judge is in the best position to do so because he heard
the live testimony in this case. See Shibuya v. Department of Agriculture ,
119 M.S.P.R. 537 , ¶ 37 (2013). Accordingly , it is necessary to remand the appeal
for the administrative judge to evaluate whether the agency proved by clear and
convincing evidence that it would have removed the appellant absent her
protected disclosure and activity . See Mastrullo , 123 M.S.P.R. 110 , ¶ 22
(remanding the appeal for adjudication of whether the agency met its burden of
proving by clear and convincing evidence that it would have failed to give the
appellant a time -off award absent his disclosures , as he had proven on review that
his disclosures about his coworker’s harassment were a contributing factor in the
agency’s decision).
ORDER
¶27 For the reasons discussed abo ve, 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 | PAYTON_AMY_TERRELL_AT_1221_16_0592_W_1_REMAND_ORDER_2052333.pdf | 2023-07-21 | null | AT-1221 | NP |
2,863 | https://www.mspb.gov/decisions/nonprecedential/ROWSER_JEFFREY_AT_844E_20_0793_I_1_FINAL_ORDER_2051647.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY ROWSER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -20-0793 -I-1
DATE: July 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Derrick Mason , Birmingham, Alabama, 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 , the Office of Personnel Management (OPM), has filed a
petition for review of the initial decision, which reversed its decision denying the
appellant’s application for disability retirement benefits . On petition for
review, OPM argues that the administrative judge gave insufficient probative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body 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
weigh t to the fact that the appellant participated in local politics and ran for
political office during the period that he alleged he was disabled , and therefore
erroneously concluded that the appellant met the criteria for disability retirement
benefits . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous 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 the petitioner has not
established any basis under section 1201.115 for granting the petition fo r review.
¶2 We find that there is no merit to OPM’s argument on review. The
administrative judge carefully considered and rejected OPM’s argument that the
appellant’s decision to apply for disability retirement was motivated by his
political ambitions , co ncluding that even though the appellant had expressed
aspirational interest in political office, that fact did not detract from the medical
records and other subjective evidence , which reflected a clear desire by the
appellant to continue his service with the agency up until the final workplace
incident that triggered his post -traumatic stress disorder (PTSD) in January 2019.
Initial Appeal File (IAF) , Tab 13, Initial Decision (ID) at 13-14.
¶3 Additionally, n one of the specific medical records OPM points t o on review
undermine this conclusion. See Petition for Review ( PFR) File, Tab 1 at 7.
Although the records reflect that the appellant expressed an interest in holding
political office at various times during the period from September 2017 through
March 2019, these desires were “aspirational” as the administrative judge
3
indicated, in the sense that the appellant ran for a city council seat but was
unsuccessful in his endeavor, and despite the fact that he has been on leave from
the agency since April 2019 , see IAF, Tab 8 at 38, there is nothing in the record
indicating that he is occupying any political office, see ID at 14.
¶4 Further, in response to OPM’s argument, the appellant notes that his desire
to get involved in his community and pursue political off ice was undertaken in an
effort to cope with his PTSD symptoms , on the advice of his therapist. PFR File,
Tab 3 at 4. This assertion is consistent with the testimony the appellant provided
at the hearing in response to OPM’s questions on this point, wher ein the appellant
noted that during a discussion with his therapist concerning potentially leaving
the agency due to his conditions , his therapist expressed concern about the
appellant “just sit[ting] at home” post -retirement, and the effect that might hav e
on his conditions. IAF, Tab 12, Hearing Compact Disc (HCD) (testimony of the
appellant); see IAF, Tab 7 at 4 ; ID at 9 -10. In response to these concerns and his
therapist’s suggestion that he find a hobby, the appellant discussed his passions
for helpin g people and proposed serving in political office as a hobby that would
keep his mind occupied, get him involved in his local community, and help him
work through his PTSD symptoms. HCD (testimony of the appellant). The
appellant explained that political engagement helped alleviate some of his PTSD
symptoms by allowing him to help people, and that he could “deal with people for
limited amounts of time” through community engagement or in elected political
office. HCD (testimony of the appellant).
¶5 Accord ingly, the administrative judge appropriately considered the fact that
the appellant expressed interest in participating in political office and determined
that this fact did not undermine her conclusion that his disabilities were
nevertheless inconsistent with working in his particular position, in his particular
work environment , with which we agree. See ID at 12, 14. Consequently , we
find no error in the administrative judge’s finding that the appellant proved that
he is unable to render us eful and efficient service in his particular work setting .
4
See Craig v. Office of Personnel Management , 92 M.S.P .R. 449 , ¶ 13 (2002)
(finding that the appellant’s medical condition, including PTSD, was
incompatible with useful and efficient service in her Unit Secretary position
because she testified that her PTSD symptoms were exacerbated in the
penitentiary settin g and her mental health professional confirmed that the
appellant’s condition was “extremely environmentally sensitive”). 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
¶6 We ORDER OPM to grant the appellant disability retirement benefits.
OPM must complete this action no later than 20 days a fter 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 of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it c arry out the Board’s Order. The appellant,
if not notified, should 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 fu lly carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201 .182 (a).
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 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 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 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 w ith which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within 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
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 whic h 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 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. O f particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the s ervices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that 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 this decision before you 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
8
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 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.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 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:
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, si gned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
Addit ional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court ’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regar ding pro bono representation
for Merit Systems Protection Board appellants before the 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 in formation for the courts of appeals can be 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 | ROWSER_JEFFREY_AT_844E_20_0793_I_1_FINAL_ORDER_2051647.pdf | 2023-07-20 | null | AT-844E | NP |
2,864 | https://www.mspb.gov/decisions/nonprecedential/THOMAS_ROGER_J_SF_0752_16_0332_B_1_REMAND_ORDER_2051653.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROGER J. THOMAS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0752 -16-0332 -B-1
DATE: July 20, 2023
THIS ORDER IS NONPRECEDENTIAL1
Norman Jackman , Esquire, Lincoln, New Hampshire, for the appellant.
Maureen Ney , Esquire, Los Angeles, 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 remand initial decision,
which dismissed for lack of jurisdiction his claims under the Veterans
Employment Opportunities Act of 1998 (VEOA) and Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), and dismissed 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
untimely filed his claim under the Whistleblower Pro tection Enhancement Act of
2012 (WPEA). For the reasons discussed below, we GRANT the appellant’s
petition for review as it concerns his USERRA claim , VACATE the remand
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The agency removed the appellant, effective January 31, 2016 , for failure to
maintain a regular work schedule . Thomas v. Department of Veterans Affairs ,
MSPB Docket No. SF-0752 -16-0332 -I-1, Initial Appea l File (IAF), Tab 7 at 20.
The appellant filed a removal appeal with the Board on March 7, 2016. IAF,
Tab 1. He also alleged whistleblower reprisal and violations of his VEOA and
USERRA rights. Id. at 4. As to his whistleblower reprisal claim, he indi cated
that he had filed a complaint with Office of Special Counsel (OSC) on May 1,
2015, but left blank the inquiry on his initial appeal form regarding the date that
OSC issued its close -out letter. Id. As to his USERRA or VEOA claims, the
appellant indicated that he filed a Department of Labor (DOL) complaint on
July 27, 2015, and that DOL made a decision on his complaint. Id.
¶3 The administrative judge notified the appellant that his appeal appeared to
be untimely filed. IAF, Tab 9 at 1 -2. She provided the parties with a notice of
the appellant’s burden to prove the timeliness of his appeal, or if untimely, that
there was good cause for the delay. Id. at 3-6. The appellant responded that he
was un timely due to a medical condition. IAF, Tab 12. The agency also
responded. IAF, Tab 14. After considering the parties’ responses, the
administrative judge dismissed the appeal as untimely filed without good cause.
IAF, Tab 15, Initial Decision at 11.
¶4 The appellant, through his designated representative, filed a petition for
review challenging the initial decision. Thomas v. Department of Veterans
Affairs , MSPB Docket No. SF-0752 -16-0332 -I-1, Petition for Review (PFR) File,
3
Tab 3 at 2 -3, Tab 4. The Board issued a Remand Order granting the petition for
review. Thomas v. Department of Veterans Affairs , MSPB Docket No. SF-0752 -
16-0332 -I-1, Remand Order (RO), ¶ 1 (Dec. 16, 2016) . The Board found that the
administrative judge properly dismissed the remo val appeal as untimely filed.
RO, ¶¶ 9-17. However, it remanded the appeal to the administrative judge to
provide the appellant with the jurisdictional burdens for, and an opportunity to
present evidence and argument to establish jurisdiction over, his p otential
USERRA, VEOA, and individual right of action (IRA) appeals. RO, ¶¶ 20-21.
¶5 On remand, the administrative judge issued an acknowledgment order
informing the appellant of his jurisdictional burdens for the claims he raised on
appeal. Thomas v. Depa rtment of Veterans Affairs , MSPB Docket No. SF-0752 -
16-0332 -B-1, Remand File (RF), Tab 2 at 2 -14. Fourteen days after the
acknowledgment order was issued, the appellant filed a pleading asking the
administrative judge to provide him with notice of his jur isdictional burden as
required by the Remand Order. RF, Tab 3 at 4 -7. In response, a staff member in
the Board’s regional office contacted the appellant and informed him that the
acknowledgment order contained the required jurisdictional information. RF ,
Tab 4 at 1 -2. The appellant indicated that he had received the acknowledgment
order but had not read it. Id. at 2. The administrative judge subsequently ordered
the appellant to file evidence and argument to show cause why his appeal should
not be dis missed for lack of jurisdiction . Id. The appellant did not respond to the
order, and the agency filed a motion to dismiss his appeal. RF, Tab 5 at 4 -5.
¶6 Without holding a hearing, the administrative judge issued a remand initial
decision dismissing the appeal. RF, Tab 6, Remand Initial Decision (RID) at 14.
Concerning the appellant’s USERRA claim, the administrative judge found that
he failed to make a nonfrivolous allegation that his removal was due to his prior
military service. RID at 11 -12. Conc erning his VEOA claim, the administrative
judge found that the appellant provided no evidence that he exhausted his
veterans’ preference claim with DOL. RID at 14. Therefore, the administrative
4
judge found that the appellant failed to establish jurisdict ion over these claims.
Concerning the whistleblower reprisal claim, the administrative judge found that
the appellant received a close -out letter from OSC in August 2015. RID at 9 -10.
Based on this finding, she concluded that his March 2016 initial appe al was
untimely filed.2 Id.; IAF, Tab 1 at 35.
¶7 The appellant, through a new attorney representative, has filed a remand
petition for review challenging the dismissal of his appeal. Thomas v.
Department of Veterans Affairs , MSPB Docket No. SF-0752 -16-0332 -B-1,
Remand Petition for Review (RPFR) File, Tabs 1, 7. On review, the appellant’s
new attorney argues that the appellant’s prior representative mishandled his
appeal and the appellant did not understand that he was required to respond to the
administrative judge’s orders. RPFR File, Tab 1 at 4-5. He further argues that
the appellant was “preoccupied” by military and job -related injuries. Id. As to
the appellant’s claim of whistleblower reprisal, the appellant alleges that he
received a close -out letter but cannot locate it. He asserts that “more than
120 days have long since passed after the OSC closed the case,” but he does not
indicate when he received the close -out letter. Id. at 5. He attaches a co py of an
OSC complaint that pre -dated his removal, but does not attach the close -out
letter. RPFR File, Tab 4. As t o his USERRA claim, he asserts that management
2 The administrative judge stated that she was dismissing the appellant’s potential IRA
appeal for lack of jurisdiction. RID at 8 -10. However, because she found that he did
not file his appeal with in 60 days of receipt of the OSC close -out letter, this finding was
on timeliness, not jurisdiction. See Inman v. Department of Veterans Affairs ,
115 M.S.P.R. 41 , ¶ 16 (2010) (finding that an administrative judge properly dismissed
an IRA appeal as untimely filed because the appellant did not file his appeal within
60 days of OSC notifying him that it was concluding its investigation into his
allegations of whistleblower reprisal and he had the right to file an appeal with the
Board ). Because the administrative judge properly stated the timeframe for filing an
IRA appeal and otherwise made appropriate findings, we find that the error o f
characterizing her finding as jurisdictional is harmless. See Burke v. Department of
Veterans Affairs , 121 M.S.P.R. 299 , ¶ 18 (201 4) (observing that an administrative
judge ’s alleged procedural error is of no legal consequence unless it is shown to have
adversely affected a party’ s substantive right s).
5
was antagonistic towards him as a disabled veteran, which resulted in their denial
of his request for his leave to be protec ted under the Family and Medical Leave
Act of 1993 (FMLA), and thus his termination for that leave . RPFR File, Tab 1
at 6-7. He also attaches an August 24, 2013 news article in support of his claim
that employees generally are antagonistic towards disabl ed veterans .3 RPFR File,
Tab 1 at 5 -18, Tab 2 at 5 -15. The agency has responded. RPFR File, Tab 8.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has established Board jurisdiction over his USERRA discrimination
claim.
¶8 Under 38 U.S.C. § 4311 (a), “[a] person who . . . has performed . . . service
in a uniformed service shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of employment by an
employer on the basis of that . . . performance of service.” To establish
jurisdiction over a USERRA discrimination claim under section 4311(a), the
appellant must nonfrivolously4 allege that: (1) he performed duty or has an
obligati on to perform duty in a uniformed service of the United States; (2) the
agency denied him initial employment, reemployment, retention, promotion, or
any benefit of employment; and (3) the denial was due to the performance of duty
or obligation to perform d uty in the uniformed service. Gossage v. Department of
Labor , 118 M.S.P.R. 455 , ¶ 10 (2012) ; see 5 C.F.R. § 1201.57 (a)(3), (b)
(providing that to establish jurisdiction, an appellant must nonfrivolously allege
the substantive jurisdictional elements of a USERRA appeal) . USERRA,
however, does not authorize the Board to adjudicate a claim of discrimination
based on disability alone, even if the underlying disability arose from military
service. McBride v. U.S. Postal Service , 78 M.S.P.R. 411 , 415 (1998). A claim
3 The appellant does not challenge the administrative judge’s finding that he did not
exhaust his VEOA claim . RID at 14. W e decline to disturb th is finding on review.
4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
6
of discrimination under USERRA should be broadly and liberally construed in
determining whether it is nonfrivolous. Gossage , 118 M.S.P.R. 455 , ¶ 10.
¶9 The administrative judge below found that the appellant made nonfrivolous
allegations that he performed uniformed service and that the agency denied him
retention in employment by removing him . RID at 11. However, she also found
that he failed to nonfrivolously allege that the agency’s actions were motivated by
his military service. RID at 11 -12. In light of the appellant’s clarification of his
claim in his remand petition for review , we find that he has established
jurisdiction over his USERRA claim.
¶10 On review of the initial decision, the appellant alleged that his supervisor
denied him rubber boots, resulting in an on -the-job injury , and denied him other
benefi ts of employment, such as his requests for FMLA -protected leave , on the
basis of , as relevant here, his military and veteran status. PFR File, Tab 8 at 16 ,
20; RO, ¶ 7 n.3 . In his remand petition for review , the appellant further claims ,
“antagonism agai nst him , as a disabled veteran, was obvious on the part of
managemen t . . . . Eventually, he needed more time off than he could ge t
management to authorize and he lost his job because of it.” RPFR File, Tab 1
at 6. He states , “When he asked for FMLA the Agency never signed, nor
authorized it. Essentially, he really lost his job because of the antagonism of
employees at the VA against disabled veterans and because of the injury caused
by the gross negligence of the Agency.” Id. at 6-7. The Board can consider any
new or clarified allegations made in his remand petition for review because
jurisdiction may be raised at any time during a proceeding . See Morgan v.
Department of the Navy , 28 M.S.P.R. 477 , 478 (1985).
¶11 Here, the appellant directly connects the alleged denial of his FMLA leave
and his ultimate removal to the fact of his military service and veteran status, and
not just to his service -related disability. If an appellant alleges that his status as a
disabled veteran is the reason an agency has taken an action or denied a benefit,
he is alleging that the action or denial was “on the basis of” his “obligation to
7
perform service in a uniforme d service.” 38 U.S.C. § 4311 (a); see Davison v.
Department of Veterans Affairs , 115 M.S.P.R. 640 , ¶¶ 12-15 (2011) (finding
Board jurisdiction over an appellant’s allegation of retaliation based on use of
leave to which he was entitled only due to his status as a disabled veteran) ;
Lazard v. U.S. Postal Service , 93 M.S.P.R. 337 , ¶¶ 2, 8 (2003) ( finding
jurisdict ion under USERRA over an appellant’s claims that his suspension was
the result of his refusal to perform duties that wo uld have aggravated his
service -connected injuries and that nonveterans were treated differently) ; Durr v.
Merit Systems Protection Board , 844 F. App’x 329 , 332 ( Fed. Cir. 2021) (finding
Board jurisdiction when the appellant alleged he was denied medical leave “ for
reason of [his] status of being a 10 -point, military ser vice-connected disabled
veteran, ” and that “if another employee had made a request for leave for medical
reasons, that such would have been gr anted”).5
¶12 Although lacking in detail, the weakness of the appellant’s assertions in
support of his USERRA claim is not a basis to dismiss that claim for lack of
juris diction; rather, if the appellant fails to develop his contentions, his USERRA
claim should be denied on the merits. Randall v. Department of Justice ,
105 M.S.P.R. 524 , ¶ 5 (2007). Accordingly, we find that the appellant’s proffered
allegation is sufficient to establish Board jurisdiction over his USERRA
discrimination claim.
The administrative judge properly found that the appell ant’s whistleblower
reprisal appeal was untimely.
¶13 An appellant must file an IRA appeal w ithin 60 days of receipt of OSC’ s
written notification that it is terminating its investigation into the alleged
whistleblowing retaliation. Inman v. Department of Veterans Affairs ,
115 M.S.P.R. 41 , ¶ 16 (2010). Here, the appellant did not provide a copy of
5 The Board may rely on unpublished decisions of the Federal Circuit if it finds the
court’s reasoning persuasive, as we do here. Mauldin v. U.S. Postal Service ,
115 M.S.P.R. 513 , ¶ 12 (2011).
8
OSC’s close -out letter, which normally includes such notice, or state when he
received the letter. However, he provided a July 30, 2015 letter from OSC,
informing him that it had made a preliminary determination to close its inquiry
into his complaint. IAF, Tab 1 at 17 -19. OSC provided the appellant with
13 days to respond, and indicated that in the absence of a response, it would send
him a letter terminating its investigation and advising him of his additional rights.
Id. at 19. Based on this letter, and absent any evidence to the contra ry, the
administrative judge found that the appellant likely received his OSC close -out
letter in August 2015. RID at 9. Thus, she concluded that his March 2016 appeal
was untimely. Neither party disputes this finding on review, and we decline to
distur b it. RPFR File, Tab 1 at 5.
¶14 On review, the appellant offers excuses for his failure to respond to the
administrat ive judge’s orders and submits a copy of his OSC complaint.
RPFR File, Tab 1 at 4 -5, Tab 4. Because his arguments and evidence do not
conce rn the dispositive timeliness issue, we decline to consider them for the first
time on review. Roush v. Department of the Interior , 59 M.S .P.R. 113 , 118
(1993) (declining to consider evidence presented for the first time on review
because, in pertinent part, the evidence was not material to the dispositive
jurisdictional issue) ; Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980)
(finding that the Board generally will not consider an argument raised for the first
time on review absent a showing that it is based on new and mate rial evidence not
previously available des pite the party’s due diligence) . To the extent that he is
arguing that he has established good cause for his delay, the Board has no
authority to excuse an untimely filed IRA appeal. Agoranos v. Department of
Justice, 119 M.S.P.R. 498 , ¶ 8 n.3 (2013). Accordingly, we agree with the
administrative judge that the appellant’s WPEA claim i s untimely filed.
9
ORDER
¶15 For the reasons discussed above, we REMAND this case to the Board’s
Western Regional Office for further adjudication of the appellant’s USERRA
claim in accordance with this Remand Order. On remand, the administrative
judge may readop t her prior findings dismissing the appellant’s VEOA claim for
lack of jurisdiction and dismissing his WPEA claim as untimely filed so that the
appellant will have a single decision with appropriate notice of appeals rights
addressing all of his claims . See Goldberg v. Department of Homeland Security ,
99 M.S.P.R. 660, ¶ 12 (2005).
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | THOMAS_ROGER_J_SF_0752_16_0332_B_1_REMAND_ORDER_2051653.pdf | 2023-07-20 | null | SF-0752 | NP |
2,865 | https://www.mspb.gov/decisions/nonprecedential/FARELLA_MICHAEL_A_DE_0714_20_0084_I_1_FINAL_ORDER_2051734.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL A. FARELLA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0714 -20-0084 -I-1
DATE: July 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael A. Farella , Cheyenne, Wyoming, pro se.
Rheanna Felton , Esquire, Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the March 10, 2020 initial
decision in this appeal. For the reasons set forth 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
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
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AND COMPROMISE AGREEMENT” signed and dated
by the appellant on June 25, 2023, and by the agency on June 26, 2023 . Petition
for Review (PFR) File, Tab 4 . The document provides, among other things, for
the dismissal of the appeal. Id. at 4-5.
¶3 Before dismissing a matter as settled, the Board must decide w hether 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 th e
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. PFR File, Tab 4 at 4 -8. 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 entere d into, and we
accept the settlement agreement into the 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 se ttlement 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
3
petitioning party believes that the terms of the settlement agreement ha ve 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 determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims an d carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 mos t 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
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
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
5
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
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the W histleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited per sonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 i nformation 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 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
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/Co urtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FARELLA_MICHAEL_A_DE_0714_20_0084_I_1_FINAL_ORDER_2051734.pdf | 2023-07-20 | null | DE-0714 | NP |
2,866 | https://www.mspb.gov/decisions/nonprecedential/ALLEN_JOE_DC_4324_16_0698_I_1_REMAND_ORDER_2051747.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOE ALLEN,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-4324 -16-0698 -I-1
DATE: July 20, 2023
THIS ORDER IS NONPRECEDENTIAL1
Brian J. Lawler , Esquire, San Diego, California, for the appellant .
Adrianne Michelle Mittelstaedt , 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 initial decision, which
dismissed his Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeal as moot. For the reasons discussed below, we GRANT
the a ppellant’s petition for review, VACATE the initial decision , and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
the case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant is employed by the agency as a Firefighter and performs
military service as a member of the U.S. Co ast Guard Reserve. Initial Appeal
File (IAF), Tab 1 at 3, Tab 5 at 67. According to the appellant, he typically
works a 24 -hour shift from 7 a.m. to 7 a.m. and performs Coast Guard Reserve
duty at a location about a 1 -hour drive away from his work locati on. IAF, Tab 8
at 7. In June 2016, he filed an appeal with the Board alleging that the agency
violated his rights under USERRA and subjected him to a hostile work
environment on the basis of his membership in the uniformed services by
repeatedly engaging in the following conduct: demanding that he provide
military orders before and after performing his service obligations to justify his
military leave for periods of less than 31 days; calling or demanding to speak
with his reserve command to verif y the t iming and purpose of his military leave
absences; ordering him to report to work during a regularly scheduled shift on the
same day he completed his military service obligations; requiring him to take
annual or sick leave for absences due to his military s ervice; requiring him to
“request” permission for military leave by completing leave forms ; denying his
request for military leave or other leave without pay (LWOP) to perform his
military service obligations; and harassing him about his military service
obligations. IAF, Tab 1 at 7 -8, Tab 8 at 5 -7.
¶3 The administrative judge held two status conferences to clarify the issues,
identify the relevant legal standards, and discuss settlement. IAF, Tabs 7, 10. In
an order and summary of the second status confere nce, she set forth and
interpreted the pertinent statutory and regulatory provisions, noting that, pursuant
to the plain language of those provisions, several of the alleged agency actions
would be impermissible. IAF, Tab 10. Thereafter, on September 16, 2016, the
3
agency filed a “Notice of Compliance,” in which it outlined the following
corrective actions that it had taken or directed in order to resolve the appellant’s
concerns and to make him whole: (1) terminated an administrative investigation
regard ing the appellant; (2) directed that, upon his return from military service,
he would not be expected to report back to work until the beginning of his next
full shift; (3) directed that, if he was scheduled to work on the day before his
period of military service, he would be expected to work only a half shift;
(4) directed that he would not be required to provide his military orders before or
after he performed military service; (5) directed that any periods of absence
without leave related to the USERRA issues in this appeal would be converted to
LWOP unless he wished to elect another appropriate form of paid leave;
(6) directed that he may elect to convert to LWOP any period of annual leave or
compensatory time previously taken to cover a period of milit ary service;
(7) directed that, while leave submission and approval procedures remained in
effect, the leave approval authority would engage the appellant prior to taking any
action to not fully approve a military service -related leave form he submitted; a nd
(8) directed that USERRA rights posters be posted on the bulletin board of every
firehouse in the Fire District in which the appellant was employed. IAF, Tab 5
at 59, Tab 11 at 4 -7. On October 14, 2016, the agency moved to dismiss the
appeal as moot, certifying that it had completed all of the actions identified in its
Notice of Compliance and arguing that the appellant had now received all of the
relief to which he would be entitled if he had prevailed in his USERRA appeal.
IAF, Tab 12.
¶4 The appellant moved for entry of a consent decree declaring him to be a
prevailing party, which the agency opposed as untimely filed, not in accordance
with law, and superfluous in light of the agency’s Notice of Compliance. IAF,
Tabs 14, 16. The appellant also respo nded in opposition to the agency’s motion
to dismiss, arguing that the agency had not provided him all of the relief to w hich
he would be entitled if he were to prevail on the merits . IAF, Tab 15. Among
4
other things, he argued that his harassment and hos tile work environment claims
were still live . Id. at 6.
¶5 The administrative judge issued an initial decision dismissing the appeal as
moot. IAF, Tab 18, Initial Decision (ID) . She found that the agency had
provided the appellant with all of the relief th at he could have received had he
prevailed on the merits . ID at 5 -6. The appellant has filed a petition for review,
arguing that the administrative judge erred in dismissing his appeal as moot and
in denying his request for a consent decree. Petition fo r Review (PFR) File,
Tab 1 at 5 -6.2 The agency has filed a response . PFR File, Tab 4.
ANALYSIS
The administrative judge acted within her authority by discussing the law and
narrowing the issues in a status conference .
¶6 The appellant argues the administrative judge abused her discretion by
issuing the September 16, 2016 order and summary of status conference , which
“prematurely and improperly indicated how she would rule on the case,” thereby
allowing the agency an opport unity to “cut Appellant off from his rights and
further cut Appellant’s counsel off from the attorneys’ fees to which he is legally
and rightfully entitled.” PFR File, Tab 1 at 6, 9. As noted above, the
September 16, 2016 order and summary set forth and interpreted the applicable
law and stated that certain alleged agency actions were improper pursuant to the
plain language of the relevant statutes and regulations . IAF, Tab 10.
2 A petition for review of the initial decision was due no later than December 9, 2016.
ID at 7. The appellant, through counsel, filed his petition for review on December 10,
2016, at 2: 37 a.m. Eastern Standard Time. PFR File, Tab 1. He moved that the Board
accept the petition for review as timely filed pursuant to 5 C.F.R. § 1201.14 (m), which
provides that the timeline ss of a pleading will be determined based on the time zone
from which the pleading was submitted . PFR File, Tab 1 at 4, Tab 3. Because the
record reflects that the appellant’s counsel is located in California, we accept the
appellant’s petition for revie w as timely filed at 11: 37 p.m. Pacific Standard Time on
December 9, 2016. See 5 C.F.R. § 1201.14 (m); PFR File, Tab 1.
5
¶7 An administrative judge has broad discretion to control the proceedings
before her and is, among other things, authorized to conduct a prehearing
conference “for the settlement and simplification of issues,” in order to identify,
narrow, and define the issues. 5 C .F.R. § 1201.41 (b)(12); Merit Systems
Protection Board Judges’ Handbook, Chapter 9, Prehearing and Status
Conferences. The Board has likened the administrative judge’s authority to hold
prehearing conferences to Federal Rule of Civil Procedure 16, whic h, among
other things, allows pretrial conferences to be used for “formulating and
simplifying the issues, and eliminating frivolous claims or defenses.” Marr v.
U.S. Postal Service , 49 M.S.P.R. 196 , 200 (1991); Fed. R. Civ. P. 16(c)(2)(A).
¶8 In this case, we find that the administrative judge did not abuse her
discretion by discussing the plain meaning of relevant statutory and regulatory
provisions in the status conference and the order and summary memorializing the
status conference. We find that she acted appropriately within her authority to
narrow and refine the issues on appeal. See 5 C.F.R. § 1201.41 (b).
The appellant is not entitled to a consent decree.
¶9 The appellant also a rgues on review, as he did below, that he is entitled to a
consent decree declaring him to be the prevailing party in this appeal because, in
effect, the parties entered into a “judicially sanctioned settlement” and because
the status conference and the order and summary memorializing it were the
“judicial imprimatur” that led the agency to comply with its obligations under
USERRA. PFR File, Tab 1 at 8 -9. In the initial decision, the administrative
judge noted that, althoug h the appellant requested a consent decree, he failed to
identify any basis for the Board to issue such a decree . ID at 4. On review, the
appellant argues that the administrative judge erred by improperly placing the
burden on him to explain how she coul d issue a consent decree. PFR File, Tab 1
at 9.
¶10 A consent decree is a final judgment resulting from an agreement between
the parties that “ the parties desire and expect will be reflected in, and be
6
enforceable as, a judicial decree that is subject to the rules generally applicable to
other judgments and decrees. ” Rufo v. Inmates of Suffolk County Jail , 502 U.S.
367, 378 (1992); United States v. Armour & Co. , 402 U.S. 673 , 681 -82 (1971)
(stating that “[c]onsent decrees are entered into by parties to a case after careful
negotiation has pro duced an a greement on their precise terms”); Black’ s Law
Dictionary 441 ( 10th ed. 20 14) (defining “consent decree” as “[a] court decree
that all parties agree to”). Although the Board’s regulations do not provide for
the entry of a “consent decree,” the B oard may enter a settlement agreement into
the record and will retain jurisdiction for enforcement purposes. See 5 C.F.R.
§ 1201.182 (a). In some cases, an appellant who obtains enforce able relief
through a settlement agreement that is entered into the record for purposes of
enforcement by the Board may be considered a prevailing party for purposes of an
award of attorney fees. See Griffith v. Department of Agriculture , 96 M.S.P.R.
251, ¶ 10 (2004).
¶11 Here, however, there is no indication that the parties entered into a
settlement agreement. S ettlement agreements are contracts and are governed by
contract law. See Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir.
1988) . “[T]he form ation of a contract requires a bargain in which there is a
manifestation of mutual assent to t he exchange and a consideration.” Restatement
(Second) of Contracts § 17(1) (1981). De spite what one party might believe as to
the existence of a contract, one party’s unilateral promise to provide a benefit to
another pa rty does not create a contract . See, e.g. , Black v. Department of
Transportation , 116 M.S.P.R. 87 , ¶ 18 (2011); Thompson v. Department of the
Treasury , 100 M.S.P.R. 545 , ¶ 9 (2005). Accordingly, the agency’s unilateral
promise to change its conduct during the pendency of the appeal and voluntary
correction of its potential USERRA violations did not create a settlement
agreement, and there is no merit to the appellant’s contention that the parties
entered into a “judicially sanctioned settlement agreement.” Moreover, the fact
that the agency may have voluntarily provided the corrective action that the
7
appellant was seeking through litigation does not establish that he is a prevailing
party. See Buckha nnon Board and Care Home , Inc. v. West Virginia Department
of Health and Human Resources , 532 U.S. 598 , 605 (2001) (rejecting the
“catalyst theor y,” whereby a party could be found to have prevailed on the basis
of the opposing party’ s voluntary change of conduct after the filing of a lawsuit ).
The appeal is not moot and must be remanded for adjudication of the appellant’s
hostile work environment claim.
¶12 An appeal will be dismissed as moot when, by virtue of an intervening
event, the Board cannot grant any effectual relief in favor of the appellant, as
when the appellant, by whatever means, obtained all of the relief he could have
obtained had he p revailed before the Board and thereby lost any legally
cognizable interest in the outcome of the appeal. Washburn v. Department of the
Air Force , 119 M.S.P.R. 265 , ¶ 12 (2013). A n appellant who has prevailed in a
USERRA claim is entitled to “an order requiring the agency . . . t o comply with”
the violated USERRA provis ions and “to compensat[ion] . . . for any loss of
wages or benef its suffered by such person by reason of such lack of compliance.”
38 U.S.C. § 4324 (c)(2); Murphy v. Department of Justice , 107 M.S.P.R. 154 , ¶ 8
(2007).
¶13 Although we agree with the administrative judge that the agency has
provided the appellant much of the relief that he sought in this appeal, we also
agree with the appellant that he could potentially receive further relief in
connection with his hostile work environment claim. Specifically, i f the appellant
were to prove his claim of a hostile work environment based on his uniformed
service , the Board could order the agency to cease its harassment , in compliance
with 38 U.S.C § 4311 (a). See 38 U.S.C. § 4324 (c)(2). We observe that the
appellant’s hostile wo rk environment claim is grounded not only in the matters
already resolved pursuant to the Notice of Compliance, but also includes alleged
chiding and derogatory comments directed by agency officials toward him and his
military service obligations. IAF, Ta b 1 at 6. Nowhere has the agency admitted
8
that any of its employees engaged in such conduct toward the appellant or
promised to remedy the situation going forward. Therefore, even assuming that
the agency could have unilaterally provided full relief for the appellant’s hostile
work environment claim, it did not do so.
¶14 On petition for review, the agency argues that the appellant failed to
establish jurisdiction over his hostile work environment claim because his
allegations were not sufficiently specific a nd were not supported by an affidavit
or other evidence. PFR File, Tab 4 at 16-17. The Board has held that, to
establish jurisdiction over a hostile work environment claim under USERRA, an
appellant must nonfrivolously allege that he was subjected to a p attern of ongoing
and persistent harassing behavior that was sufficiently sever e or pervasive to
amount to an adverse employment action or discrimination in employment on
account of his uniformed service. Kitlinski v. Department of Justice , 2023 MSPB
13, ¶ 14.3 In considering whether an appellant has nonfrivolously alleged that he
was subjected to a hostile work environment, the Board will take a liberal
approach, under which the re lative weakness of the appellant’ s allegations
concerning the seriousness of the alleged acts will not serve as a basis for
jurisdictional dismissa l. See id .
¶15 In this case, we find that the appellant’s allegations of a hostile work
environment were sufficiently specific to satisfy the USERRA pleading
requirement. “The weakness of the assertions in support of a claim is not a basis
to dismiss the USERRA appeal for lack of jurisdiction; rather, if the app ellant
fails to develop his contentions, his USERRA claim should be denied on the
merits .” Searcy v. Department of Agriculture , 115 M.S.P.R. 260 , ¶ 7 (2010) . On
remand, the appellant will have the opportunity to further develop the record on
3 Kitlinski concerned an alleged hostile work environment in violat ion of USERRA’s
anti-retaliation provision at 38 U.S.C. § 4311 (b). 2023 MSPB 13 , ¶ 14. Apart from the
motive for creating the hostile work environment (discrimination versus retaliation), we
find it appropriate to apply the same standard for a hostile work environment claim
arising from USERRA’s antidiscrimination provis ion at 38 U.S.C. § 4311 (a).
9
the merits of his hostile work environment claim, through both documentary
evidence and hearing testimony.
ORDER
¶16 For the reasons discussed ab ove, 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 | ALLEN_JOE_DC_4324_16_0698_I_1_REMAND_ORDER_2051747.pdf | 2023-07-20 | null | DC-4324 | NP |
2,867 | https://www.mspb.gov/decisions/nonprecedential/RAISZADEH_AMANDA_MOJDEH_DC_1221_12_0452_B_1_FINAL_ORDER_2051768.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AMANDA MOJDEH RAISZA DEH,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-1221 -12-0452 -B-1
DATE: July 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Hennessy , Esquire, Fairfax, Virginia, for the appellant.
Laura J. Carroll , South Burlington, Vermont, 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
denied her request for corrective action in this individual right of action appeal .
On petition for review, the appellant argues that the administrative judge erred in
finding that t he agency proved by clear and convincing evidence that it would
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
have terminated the appellant in the absence of her protected disclosures .
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 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 deci sion. 5 C.F.R. § 1201.113 (b).2
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 summary of avai lable appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall with in their
2 We have considered the appellant’s arguments regarding the administrative judge’s
consideration of hearsay and the admission of documentary evidence. Petition for
Review File, Tab 5 at 2 -7, 9. We find that those a rguments do not provide a basis for
reversing the initial decision.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cann ot advise which option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may r esult in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appr opriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Ap peals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and F orms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representatio n
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 discrimination. If so, you may o btain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and 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,
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 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) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C . § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition o f allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appea ls for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appe llants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http: //www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.u scourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RAISZADEH_AMANDA_MOJDEH_DC_1221_12_0452_B_1_FINAL_ORDER_2051768.pdf | 2023-07-20 | null | DC-1221 | NP |
2,868 | https://www.mspb.gov/decisions/nonprecedential/SAJNOG_CHRISTOPHER_L_SF_0752_16_0788_I_1_FINAL_ORDER_2051858.pdf | ERROR: HTTPSConnectionPool(host='www.mspb.gov', port=443): Read timed out. (read timeout=30) | SAJNOG_CHRISTOPHER_L_SF_0752_16_0788_I_1_FINAL_ORDER_2051858.pdf | Date not found | null | null | NP |
2,869 | https://www.mspb.gov/decisions/nonprecedential/MEDLIN_ALBERT_AT_1221_17_0003_W_1_FINAL_ORDER_2051878.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALBERT MEDLIN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-1221 -17-0003 -W-1
DATE: July 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
E. Michael Ruberti , Esquire, Saint Simons Island, Georgia, for the
appellant.
Seamus Kevin Barry , Glynco, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellan t has filed a petition for review of the initial decision, which
denied his request for corrective action in an individual right of action (IRA)
appeal. 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 decis ion 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 c ourse of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering t he filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED by this Final Order to clarify
the appellant’s protected disclosures and protected activity and to find that the
Board lacks jurisdiction over the appellant’s claims of reprisal for engaging in
activity protected under 5 U.S.C. § 2 302(b)(9), we AFFIRM the initial decision.
BACKGROUND
¶2 The a ppellant, a Firearms Instructor at the agency’s Federal Law
Enforcement Training Center (FLETC) , filed this I RA appeal alleging that his
nonselection for a Supervisory Law Enforcement Specia list position on
January 12, 2016 , constituted reprisal for making protected disclosures and
engaging in protected activity. Initial Appeal File (IAF), Tab 1 at 3 -5. He did
not request a hearing. Id. at 2. The administrative judge issued an order
informing the appellant of his jurisdictional burden. IAF, Tab 3. In response, the
appellant submitted various documents, including letters from the Office of
Special Counsel (OSC), but he did not clearly articulate the nature of his
whistleblower claims. IAF, Tab 4. Based on the written record, the
administrative judge issued an initial decision, denying the appellant’s request for
corrective action. IAF, Tab 25, Initial Decision (ID). The administrati ve judge
3
construed the appellant’s claims as alleging that he made various protected
disclosures in the context of a Board appeal concerning a removal action, a
grievance of a suspension, and a tort lawsuit the appellant filed in the U.S.
District Court fo r the Southern District of Georgia against the proposing and
deciding officials in his prior removal and suspension actions. ID at 6-7. The
administrative judge found that the appellant failed to exhaust his administrative
remedies regarding his disclosu res made during his grievance and Board appeal
proceedings. ID at 7 -8. The administrative judge found that the appellant
exhausted his remedies regarding his disclosures made in the context of his
lawsuit and established Board jurisdiction by making nonf rivolous allegations
that he disclosed a violation of law, rule , or regulation and/or an abuse of
authority. ID at 8. However, the administrative judge found that the appellant
failed to prove by preponderant evidence that his disclosures were protected. ID
at 10 -13.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed an opposition to the appellant’s petition, PFR
File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4.
DISCUSSION OF ARGU MENTS ON REVIEW
¶4 Under 5 U.S.C. § 1214 (a)(3), an employee is required to exhaust his
administrative remedies with OSC before seeking corrective action from the
Board in an IRA appeal. Mason v. Depa rtment of Homeland Security ,
116 M.S.P.R. 135 , ¶ 8 (2011). An appellant filing an IRA appeal has not
exhausted his OSC remedy unless he has filed a complaint with OSC and either
OSC has notified him that it was terminating its investigation of his allegations or
120 calendar days have passed since he first sought corrective action. Simnitt v.
Department of Veterans Affairs , 113 M.S.P.R. 313 , ¶ 8 (2010). To satisfy the
exhaustion requirement, the appellant must provide OSC with a sufficient basis to
pursue an inve stigation that might lead to corrective action. Chambers v.
4
Department of Homeland Security, 2022 MSPB 8 , ¶¶ 10 -11. An appellant may
give a more detailed account of their whistleblowing activities to the Board than
they did to OSC. Id. If an appellant has proved exhaustion with OSC, he can
establish Board jurisdiction over an IRA appeal based on whistleblower reprisal
by nonfrivol ously alleging that he made a protected disclosure and/or engaged in
protected activity that was a contributing factor in the agency’s decision to take a
personnel action. 5 U.S.C. § 1221 (e)(1) ; Yunus v. Department of Veterans
Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). Once an appellant establishes
jurisdiction over his IRA appeal, he then must establish a prima facie case of
whistleblower retaliation by proving by preponderant evidence that he made a
protected disclosure or engaged in protected activity that was a contributing
factor in a personnel action taken against him. 5 U.S.C. § 1221 (e)(1); Lu v.
Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 7 (2015).
¶5 The administr ative judge characterized the appellant’s disclosures as
follows:
1. That, after the appellant was reinstated to the agency following the
agency’s rescission of the removal, he was placed in a substandard
office and he disclosed this allegation to the agency through a union
grievance;
2. That the agency forced the appellant to attend training in violation of
FLETC directives and he disclosed this violation to the agency
through a union grievance;
3. That, after the appellant returned to work, the deciding official
intentionally idled the appellant in retaliation for filing the mooted
Board appeal and this allegation was disclosed through a union
“cease and desist” memo to agency management;
4. That the deciding official violated a FLETC regulation by requiring
the appellant to take training and this allegation was disclosed
through a union grievance;
5. That the deciding official suspended the appellant for
14 nonconsecutive calendar days, instead of 14 consecutive calendar
days, resulting in the appellant being actual ly suspended for 18 days
and this allegation was disclosed during the arbitration of the
5
appellant’s suspension and to the Board ’s administrative j udge who
presided over his mooted removal;
6. That the appellant alleged to an arbitrator and to the Board that the
deciding official violated the appellant’s due process rights when he
relied on two documents not contained in the evidence file in
removing him from duty; and
7. That the appellant filed a tort lawsuit against the deciding official in
the U.S. District C ourt for the Southern District of Georgia alleging
that the deciding official violated a law, rule, or regulation by:
i. instituting “false, malicious” and “libelous” disciplinary
charges against the appellant;
ii. relying on two documents not contained in the ev idence file
for the proposed removal;
iii. making a decision to remove/suspend him without reviewing
the investigative file;
iv. making a decision to remove/suspend him prior to receiving
the appellant’s reply; and
v. extending the appellant ’s 14-day suspension to an 18-day
suspension.
ID at 6 -7.2 To the extent the appellant intended to raise claims 1 -6 as
characterized by the administrative judge, we agree that the appellant failed to
prove that he exhausted such claims before OSC.3 However, we find that, based
on t he appellant’s written response to OSC, he ex hausted his claims that his
nonselection constituted reprisal for filing a Board appeal of his removal and a
grievance of his 14 -day suspension . Id. at 8. We further find that the appellan t
exhausted claims that his non selection constituted reprisal for filing a lawsuit in
2 These claims appear to differ from those apparently identified by the appellant in a
conference call. IAF, Tab 14. However, neither party addresses this issue on review.
3 In any event, as th e administrative judge found, many of these claims appear to
reference acts of reprisal , not allegations of alleged protected disclosures or activity.
ID at 7. However, the sole personnel action raised belo w was the appellant’s
nonselection for the Super visory Law Enforcement Specialist position on January 12,
2016. IAF, Tab 1 at 5, Tab 14.
6
which he disclosed that the deciding official in his removal appeal had violated a
law, rule, or regulation when the deciding official considered information beyond
the investigative file, he made a decision prior to reviewing the investigative file
or receiving a reply from the appellant, and he extended the appella nt’s 14 -day
suspension to an 18 -day suspension. Id.
The Board lacks jurisdiction over the appellant’s claims of reprisal unde r
section 2302(b)(9) (A)(i) .
¶6 The Whistleblower Protection Enhancement Act of 2012 (WPEA) extended
the Board’s jurisdiction to hear appeals of violations of 5 U.S.C.
§ 2302 (b)(9)(A)(i), i.e., allegat ions of reprisal for exercising a right to complain,
when the substance of that complaint seeks redress for a viol ation of 5 U.S.C.
§ 2302 (b)(8). Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7
(2013). However, the WPEA did not extend the Board ’s jurisdiction in IRA
appeals to claims arising under 5 U.S.C. § 2302 (b)(9)(A)(ii), which covers
retaliation for exercising any appeal, complaint, or grievance right that does not
seek to remedy a violation of section 2302(b)(8). See Young v. Merit Systems
Protectio n Board , 961 F.3d 1323 , 1329 (Fed. Cir. 2020) (explaining that claims
of reprisal for activity protected under section 2302(b)(9)(A)(ii) are remediable
through different mech anisms and not by an IRA appeal to the Board). . Here, the
record reflect s that the appellant’s Board appeal concerning his removal, his
grievance of his 14 -day susp ension, and his tort lawsuit did not seek to remedy
whistleblower reprisal. Thus, although such activities might be protected activity
under 5 U.S.C. § 2302 (b)(9)(A)(ii), they are not protected activities within the
Board’s jurisdiction in the context of an IRA appeal under 5 U.S.C.
§ 2302 (b)(9)(A)(i) .
7
The administrative judge properly found that the appellant failed to prove that he
made a protected disclosure under section 2302(b)(8).4
¶7 Protected whistleblowing occurs w hen an appellant makes a disclosure that
he reasonably believes evidences a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. See 5 U.S.C. § 2302 (b)(8); Mason ,
116 M.S.P.R. 135 , ¶ 17. The proper test regard ing a reasonable belief is whether
a disinterested observer with knowledge of the essential facts known to and
readily ascertainable by the employee reasonably could conclude that the actions
of the Government evidence d one of the categories of wrongdoing identified in
5 U.S.C. § 2302 (b)(8). Mason , 116 M.S.P.R. 135 , ¶ 17.
¶8 Regarding the appellant’s alleged disclosures made in the context of his
lawsuit, we agree with the administrative judge that a disinterested observer
would not have concluded that the appellant’s disclosures evidenced any of the
categories set forth in 5 U.S.C. § 2302 (b)(8). First, the appellant alleged that he
disclosed that the deciding official in his removal action violated a law, rule , or
regulation when he considered two documents outside of the evidence file. IAF,
Tab 4 at 8. The administrative judge found that a disinterested observer would
not have concluded that this amounted to a violation of law, rule, or regulation
because the agency provided the appellant with the documents and an o pportunity
to reply to the deciding official prior to the issuance of the removal decision. ID
at 11; IAF, Tab 15 at 6. We discern no error in the administrative judge’s
analysis.
4 We find that disclosure 7(i )—that the appellant filed a tort lawsuit alleging that the
deciding official instituted false, malicious , and libelous disciplinary char ges against
him—amounts to an allegation that the appellant engaged in protected activity under
section 2302 (b)(9) by filing a lawsuit, not an allegation that he made a protected
disclosure under section 2302(b)(8).
8
¶9 On review, the appellant argues that the administrative judge erred in
finding that no violation occurred without analyzing whether or not the appellant
had a reasonable belief that he disclosed a violation of law, rule , or regulation.
PFR File, Tab 1 at 9 -10. We disagree. Because the violation was cured and the
appellant was aware that no violation had occurred when he m ade his disclosure
to the court, we agree with the administrative judge that t he appellant did not
have a reasonable belief that he was disclosing a violation of law, rule, or
regulation.
¶10 Second, we agree with the administrative judge that the appellant failed to
prove that a disinterested observer would have believed that the deciding official
violated a law, rule, or regulation and/or abused his authority when he made the
decision to remove the appellant with out reviewing the investigative file or
receiving the appellant’s reply. ID at 12 -13. The record reflects that the deciding
official considered the appellant’s oral response and the investigative file. IAF,
Tab 22 at 103, 172. On review, the appellant contends that the administrative
judge erred in finding that he did not have a reasonable belief. PFR File, Tab 1
at 16. The appella nt reiterates his argument that, based on an affidavit he
obtained from a Labor Relations Specialist, he had a reasonable belief that the
deciding official’s mind was made up before reviewing the investigative file and
hearing the appellant’s oral response. Id. at 12. However, we agree with the
administrative judge that these facts would not lead a disinterested person to
believe that the deciding official violated a law, rule , or regulation, or abused his
authority. Rather, as the administrative judge correctly found, a disinterested
observer would simply believe that, having reviewed the investigative file and the
appella nt’s reply, the deciding official continued to believe removal was
appropriate.
¶11 Next , regarding the appellant’s claim that he disclosed that the deciding
official violated a law, rule , or regulation when he issued the appellant an 18 -day
suspension instead of a 14 -day suspension, we agree with the administrative judge
9
that a disinterested observer would not have concluded that this amounted to a
violation of a law, rule, or regulation. The appellant has not explained how such
a decision would have amounted to a violation of law, rule, or regulation.
¶12 Accordingly, we conclude that the administrative judge properly found that
the appellant failed to prove that he made a protected disclosure. The initial
decision is affirmed as modified herein.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which t o 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 appropriat e 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 applica ble to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the 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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
11
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websi tes, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after yo u receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
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:
12
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
6 The 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.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the 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 | MEDLIN_ALBERT_AT_1221_17_0003_W_1_FINAL_ORDER_2051878.pdf | 2023-07-20 | null | AT-1221 | NP |
2,870 | https://www.mspb.gov/decisions/nonprecedential/KALICHARAN_NAVIN_NY_0752_16_0167_I_4_FINAL_ORDER_2051892.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NAVIN KALICHARAN,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
NY-0752 -16-0167 -I-4
DATE: July 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Chad Y. Tang , Esquire , and Leslie A. Saint , Esquire, Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL O RDER
¶1 The agency has filed a petition for review , and the appellant has filed a
cross petition for review of the initial decision, which sustained the charge of
violating the agency’s use of deadly force policy and mitigated the penalty of
removal to a 60 -day suspension . Kalicharan v. Department of Justice , 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
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
Docket No. NY -0752 -16-0167 -I-4, Appeal File (I -4 AF), Tab 28, Initial Decision
(ID). For the reasons discussed below, we GRANT the petition for review,
DENY the cross petition for review, AFFIRM the initial decision insofar as it
found that the agency proved its misuse of weapon charge, and REVERSE the
initial decision insofar as it mitigated the penalty of removal .
BACKGROUND
¶2 The appellant was employed by the Federal Bureau o f Investigation (FBI)
of the Department of Jus tice (DOJ) as a special agent. Kalicharan v. Departm ent
of Justice , MSPB Docket No. NY -0752 -16-0167 -I-3, Appeal File (I -3 AF),
Tab 14 at 31 . On July 18, 2012, he witnessed from a window on the second story
of his home an individual breaking into his wife’s vehicle, which was parked in
front of their house. Id. at 33. He reportedly shouted at the individual at least
three times to step away from the vehicle, but the individual did not respond. Id.
The appel lant left the window area, retrieved his agency -issued firearm, and
returned to the window to display the weapon for the individual to see,
announcing himself as a law en forcement officer . I-3 AF, Tab 14 at 34, Tab 15
at 77. According to the appellant, as soon as he announced himself as a law
enforcement officer, the individual turned towards him and dropped his left arm
toward his waist. I -3 AF, Tab 14 at 44 -45. The appellant then fired one round
from his agency -issued fi rearm to stop the apparent threat.2 Id. at 45.
¶3 The shooting was investigated by the Ne w York Police Department (NYPD)
and the Queens Dis trict Attorneys’ Office (QDAO). I -3 AF, Tab 14 at 88 -98,
Tab 16 at 35. T he DOJ Civil Rights Division (DOJ CRD) and t he United States
Attorneys’ Office for the Eastern District of New York (USAO EDNY) also
2 The appellant’s shot hit the suspect on the right side of his lower back. I -3 AF,
Tab 14 at 33. Although the suspect claimed that he was running away when the
appellant shot him, id. at 94, there was no evidence to support that claim, as a
reenactment of the scene and ballistic testing supported the appellant’s version of
events, id. at 94 -97.
3
investigated the incident . I-3 AF, Tab 16 at 35, 41. The QDAO, DOJ CRD, and
USAO EDNY all declined prosecution. I-3 AF, Tab 14 at 33, Tab 16 at 10 , 31.
Additionall y, the agency’s Shooting Incident Review Group (SIRG), an
independent review committee that investigates all FBI shooting incidents to
evaluate the use of deadly force, I-3 AF, Tab 15 at 273, Tab 16 at 19-236, and the
Office of Inspector General (OIG) perf orme d administrative investigation s,
I-3 AF, Tab 15 at 69 -250. The OIG investigation included a compelled interview
of the appellant under oath. Id. at 77 -78.
¶4 The SIRG and, subsequently, the OIG investigations determined that the
appellant violated the agency’s use of deadly force policy, finding that there were
insufficient facts to show that it was reasonable for the appellant to believe that
the suspect posed imminent danger of death or serious bodily injury to the
appellant or his family. I-3 AF, T ab 15 at 73, Tab 16 at 12, 35, 40. The OIG
referred the matter to the FBI’s Office of Professional Responsibility (OPR) for
possible administrative action. I -3 AF, Tab 15 at 68.
¶5 On April 15, 2015, OPR issued a Report of Investigation (ROI) finding tha t
the appellant did not comply with the agency’s use of deadly force policy and
recommending that the appellant be dismissed from the rolls of the FBI. I-3 AF,
Tab 14 at 134. On May 8, 2015, a Chief of Adjudication at OPR issued the
appellant a proposed notice of removal on four charges: (1) misuse of weapon —
intentional discharge; (2) unprofessional conduct —off duty; (3) violation of
miscellaneous rules/regulations; and (4) lack of candor/lying —no oath. Id.
at 102-130. The appellant responded orally and in writing. Id. at 48 -51, 67 -81.
¶6 On December 8, 2015, the Assistant Director of OPR issued a final decision
to remove the appellant from his position, sustaining charges one and four, but
finding charges two and three to be unsubstantiated. Id. at 32, 52 -60. In the
penalty determination analysis, the deciding official found the appellant’s refusal
to accept responsibility, his prior discipline regarding the loss of a weapon, and
4
his refusal to cooperate in t he investigations to be aggravating factors. Id.
at 61-63. The appellant’s removal was effective December 28, 2015. Id. at 31.
¶7 On January 25, 2016, the appellant filed an appeal with the Board.
Kalicharan v. Department of Justice , MSPB Docket No. NY -0752-16-0167 -I-1,
Initial Appeal File (IAF) , Tab 1. On April 7, 2016, he also filed an appeal with
the agency’s internal Disciplinary Review Board (DRB), a committee comprised
of employees from various divisions within the FBI who meet on a regular basis
to review employee appeals of OPR’s final decisions. I -3 AF, Tab 7-30; I-4 AF ,
Tab 24 at 44 -45. The DRB met on October 18, 2016 , to review the appellant’s
removal ,3 I-4 AF , Tab 24 at 45, and on October 21, 2016, it found that OPR
reasonably concluded that the appellant violated the agency’s use of deadly force
policy, I -3 AF, Tab 14 at 4 -6. However, it found that substantial evidence did not
exist to support the lack of candor/lying —no oath charge. Id. It also appears to
have limited the scope of the ag ency’s reliance on the appellant’s refusal to
cooperate with investigations as an aggravating penalty factor. Id. at 5.
Specifically, the DRB referred only to the appellant’s failure to cooperate after
his OIG interview. Id. This failure to cooperate c onsisted of the appellant’s
refusal to participate in a reenactment of the shooting. I -3 AF, Tab 14 a t 38 n.29;
I-4 AF, Tab 24 at 41. The administrative judge and the parties adjudicated the
case solely on the charge relating to the use of deadly force.4
¶8 On May 3, 2018, the administrative judge issued an initial decision on the
written record.5 ID at 2. She found that the agency proved by preponderant
3 The initial decision states that the DRB met on February 4, 2016. ID at 6. However,
the record shows that the DRB met on October 18, 2016 , to review the appellant’s
removal. I -4 AF, Tab 24 at 45.
4 Because the parties have not disputed that this is t he sole charge at issue, our
discussion will be similarly focused.
5 The appellant withdrew his initial request for a hearing. IAF, Tab 1 at 2; I -4 AF,
Tabs 20-21.
5
evidence that the appellant did not have a reasonable belief of imminent danger of
death or serious phy sical injury towards himself or his family when he shot the
suspect. ID at 11. She also found there to be a clear nexus between the
appellant’s misconduct and the efficiency of the service. ID at 14. However, she
found that the agency’s reliance on the three aggravating factors in its penalty
determination was in error, and she mitigated the penalty of removal to a 60 -day
suspension. ID at 15 -23. She also found that the appellant failed to prove his
affirmative defense alleging a due process violation . ID at 23 -24.
¶9 The agency has filed a petition for review arguing that the administrative
judge erred in mitigating the penalty of removal to a 60 -day suspension. Petition
for Review (PFR) File, Tab 3 at 8-17. The appellant has fil ed a cross petition f or
review, arguing that the administrative judge applied an incorrect standard in
finding that the agency proved the charge and that she erred in finding that he did
not prove his affirmative defense. PFR File, Tab 7 at 5-13, 20 -22. The appellant
has also responded to the agency’s petition for review. Id. at 13 -20, 22 -23. The
agency has filed a response to the appellant’s cross petition for review and a reply
to the appellant’s response to its petition for review. PFR File, Tabs 11 -12.
DISCUSSION OF AR GUMENTS ON REVIEW
The agency proved the charge misuse of a weapon —intentional discharge by
preponderant evidence.
¶10 The agency charged the appellant with intentionally firing his weapon
outside the scope of the Deadly Force Policy, in violation of FBI Offense Code
5.15 (Misuse of Weapon —Intentional Discharge). I -3 AF, Tab 14 at 102. The
Deadly Force Policy only permit s the use of deadly force “when necessary, that
is, when the officer has a reasonable belief that the subject of such force poses an
imminent danger of death or serious physical injury to another person. ” I-3 AF,
Tab 15 at 256 . The agency defines “reason able belief” as being synonymous with
probable cause and looks to “the totality of the facts and circumstances known to
6
[the officer ] at the time , and the logical inferences that may be drawn from them. ”
I-3 AF, Tab 14 at 52, 152.
¶11 In removing the appell ant, the deciding official relied on the SIRG and OIG
reports, which both concluded that it was not objectively reasonable for the
appellant to believe that the suspect posed imminent danger of death or serious
bodily injury to him or his family. I -3 AF, Tab 14 at 53 -55. The deciding
official agreed with the SIRG’s and OIG’s questioning of the appellant’s
judgment to point his weapon at the suspect over a property crime. Id. at 53-54.
She con sidered the appellant’s claim that the suspect had moved his hand near his
waist and began to turn towards the appellant when the appellant shot him. Id.
at 55. However, she found that, given the appellant’s distance from the suspect,
his use of a deadly weapon was not objectively reasonable. Id. at 55 -56.
¶12 In the initial decision, the administrative judge agreed with the agency that
the appellant did not have a reasonable belief that the suspect posed an imminent
danger of death or serious physical injur y towards him or his family when he shot
from his second -floor window. ID at 11. Specifically, she agreed with the
agency that a reasonable law enforcement officer would not have believed himself
to be in imminent danger based on the facts and circumstan ces at issue here. Id.
In making this finding, she credited the appellant’s description of the events
immediately before and during the shooting. ID at 10 -11, 13.
¶13 In his cross petition for review, the appellant argues that the administrative
judge did not correctly apply the standard set forth in Graham v. Connor ,
490 U.S. 386 , 396 (1989) , which provides that whether an officer violates the
Fourth Amendment’s prohibition on unreasonable seizures by using excessive
force is determined from the standpoint of a “reasonable officer on the scene.”6
6 In the initial decision, the administrative judge appears to have construed the
appellan t’s argument to be that a subjective, rather than an objective, standard should
apply, and that the agency should have been limited to considering the propriety of the
use of force exclusively from the perspective of the appellant at the moment he fired th e
7
PFR File, Tab 7 at 5 -6. The Court explained that “the ‘reasonableness’ inquiry is
an objective one.” Graham , 490 U.S. at 397. Thus, the particular officer’s
motivations are not relevant. Id. In furtherance of his argument that his use of
force was reasonable under Graham , the appellant restates the circumstances
surrounding the shooting. PFR File, Tab 7 at 10-12. The administrative judge
acknowledged most of these facts as not in dispute. ID at 8 -9. To the extent the
appellant is arguing that the administrative judge failed to consider his assertions
as to what occurred, we are not persuaded. An administ rative judge’s failure to
discuss all of the evidence specifically does not mean that she did not consider it
in reaching her decision. Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129 , 132 (1984), aff’d , 776 F.2d 1062 (Fed. Cir. 1985) (Table) .
¶14 As to the appellant’s argument regarding the standard in Graham , we agree
with the administrative judge that although the SIRG r elied on language from
Graham , the agency was not required to prove that the appellant violated the
suspect’s Fourth Amendment rights in order to prove its charge . ID at 8 n.8. An
agency may “establish and enforce reasonable rules governing the workplace .”
Jonson v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 454 , ¶ 18 (2015)
(quoting Carosella v. U.S. Postal Service , 816 F.2d 638 , 642 (Fed. Cir. 1987)).
In other contexts, the Board has recognized that the inclusion in an agency’s
policy of terms that also appear in a statutory context does not require it to prove
that the employee committed a statutory violation. See id ., ¶ 18 (observing that
an agency is not required to prove an appellant violated Title VII when it charges
him with violating its own policy or rule on sexual harassment). T he agency’s
policy on the use of deadly force does not cite to Graham or to the Fourth
shot. ID at 12; I -4 AF, Tab 27 at 9. Although his petition for review now seems to
argue that an objective standard applies under Graham , he nonetheless appears to
conflate the objective and subjective standard, arguing on review that there is no
evide nce to suggest that “he did not subjectively believe that, at the moment of
discharge, the suspect had a gun.” PFR File, Tab 7 at 13.
8
Amendment. I -3 AF, Tab 13 at 256 -57. Thus, we discern no basis to require the
agency to prove that the appellant violated the constitutional prohibition on
unreasonabl e seizure and decline to distinguish the appellant’s situation from that
of the officers in Graham or other Fourth Amendment cases that he cites. PFR
File, Tab 1 at 5 -12. Although the SIRG appears to have discussed the standards
in Graham , that body inve stigates all FBI shooting incidents, including those that
are referred for criminal prosecution in which a Fourth Amendment discussion is
relevant. I-3 AF, Tab 15 at 273.
¶15 In its notice of proposed removal, the agency charged the appellant with a
violati on of its policy on the use of deadly force. I -3 AF, Tab 14 at 102. The
proposing official did not rely on the Fourth Amendment or case law interpreting
that amendment in finding that the appellant violated this policy. Id. at 102,
118-22. Although he referred to Graham , it was in the context of discussing the
SIRG’s deliberations. Id. at 121 -22. Similarly, the deciding official cited
Graham and other Fourth Amendment cases in response to the appellant’s reply
to the proposed removal. Id. at 50 -58. However, her conclusion was that the
appellant violated the agency’s policy, not the Fourth Amendment. Id. at 58. To
the extent that the agency discussed Graham in its investigations or as
background information in its proposed removal and removal decisi on, we decline
to find that the agency was, as a result, bound by that case. See Otero v. U.S.
Postal Service , 73 M.S.P.R. 198 , 203 -04 (1997) (declining to require an agency to
prove that the appellant made a “threat” when it characterized his improper
misconduct a number of ways in the charging letter, including as “threatening”).
¶16 We also agree with the administrative judge that the ap pellant violated the
agency’s deadly force policy. ID at 7 -13. At the point when he shot the suspect,
the appellant estimated that the horizontal distance between himself and the
suspect was approximately 30 feet, and the vertical distance was between 10 and
25 feet. I -3 AF, Tab 14 at 41, 44 -45. Although the appellant asserts that he had
knowledge that his neighborhood was a high crime area, he did not tell
9
investigators that he observed the suspect in any clothing he knew to be indicative
of a local st reet gang, and the record does not otherwise indicate that he knew
whether the suspect had a criminal history. I -3 AF, Tab 15 at 79. Further,
although he claims his home had “multiple points of entry” for bullets, he does
not provide any explanation for his purported belief that the suspect could reach
him through these entry points . PFR File, Tab 3 at 11. We find that under these
circumstances , his use of deadly force was not reasonable. Accordingly, w e
affirm the administrative judge’s ruling in that regard, and we deny the
appellant’s cross petition for review.7
The administrative judge improperly mitigated the penalty of removal to a 60 -day
suspension.
¶17 The administrative judge found that the agency failed to properly consider
the appropriate Douglas factors. ID at 15 -21; Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 305 -06 (1981 ) (providing a nonexhaustive list of
factors t hat are relevant for consideration in determining the appropriateness of a
penalty) . Therefore, she reweighed the relevant factors, concluding that a 60 -day
suspension was the maximum reasonable penalty. ID at 21 -23. On review, the
agency argues that it correctly applied the Douglas factors and that the
administrative judge’s mitigation of the penalty was in error. PFR File, Tab 3
7 In the appell ant’s cross petition for review, he disputes the SIRG’s findings. PFR
File, Tab 7 at 7. For example, h e argues that the SIRG concluded that he had a duty to
retreat, which conflicts with the standard set forth in Graham . I-3 AF, Tab 16 at 13.
As previously discussed however, the appellant was not charged with a constitutional
violation, and therefore, Graham does not apply . See supra ¶¶ 14 -15; ID at 8 n.8. The
administrative judge considered this argument and the appellant’s other arguments
regarding the SIRG report and found them to be without merit. ID at 11 -12. The
appellant has not demonstrated an y error in this finding, and we find no reason to
disturb it. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding
no reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasone d conclusions).
10
at 8-17. We agree in part and find that removal is the maximum reasonable
penalty for the appellant’s misconduct.
¶18 When the Board sustains all of the ch arges, it will review an
agency -imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discretion within toler able limits of
reasonableness. Portner v. Department of Jus tice, 119 M.S.P.R. 365 , ¶ 10 (2013) ,
overruled on other grounds by Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 17.
In doing so , the Board gives due deference to the agency’s discretion in
exercising its managerial function of maintaini ng employee discipline and
efficiency. Id. It is not the Board’s function to displace management’s
responsibility or to decide what penalty it would impose, but to ensure that
management judgment has been properly exercised and that the penalty selected
by the agency does not exceed the maximum limits of reasonableness . Id. Thus,
the Board will modify a penalty only when it finds that the agency failed to weigh
the relevant factors or that the penalty the agency imposed clearly exceeded the
bounds of re asonableness.8 Id.
¶19 Here , the agency imposed the penalty of removal due to the following three
aggravating factors: the appellant’s refusal to accept responsibility, prior
discipline, and refusal to cooperate with the investigations. I-3 AF, Tab 14
at 61-63; see Douglas , 5 M.S.P.R. at 305 -06. The administrative judge found that
the agency improperly considered these Douglas factors as aggravating factors
and mitigated the penalty of removal to a 60-day suspension. ID at 16 -21. As
discussed below, we ag ree with the administrative judge as to some, but not all,
of these factors. We reverse her finding that a 60 -day suspension was the
maximum reasonable penalty.
8 On review, neither party disputes the administrative judge’s finding of nexus between
the appellant’s misconduct and the efficiency of the service. ID at 14. PFR File, Tab 7
at 4 n.4. We discern no basis to disturb this finding.
11
The administrative judge erred in finding that the appellant’s refusal to
accept responsibilit y was not an aggravating facto r.
¶20 In the decision to remove the appellant, the deciding official stated that she
considered the appellant’s refusal to accept responsibility for violating the policy
as an aggravating factor, and the DRB agreed. I -3 AF, Tab 14 at 5, 61 -62. In the
initial decision, the administrative judge found that this consideration was
inappropriate because the Board has held that it is improper to consider an
appellant’s denial of misconduct as an aggravating factor. ID at 17 (citing
Fowler v. U.S. Postal Service , 77 M.S.P.R. 8 , 15 (1997)). Thus, she concluded
that it is also inappropriate to consider an appellant’s lack of remorse for the
misconduct when that lack of remorse is a consequence of his denial of the
misconduct. ID at 17 (citing Smith v. Department of the Nav y, 62 M.S.P.R. 616 ,
621 (1994)).
¶21 On review, the agency points to several Board cases that state that it is
appropriate to consider the effect that an appellant’s refusal to take responsibility
has on his potential for rehabilitation. PF R File, Tab 3 at 11. It observes that the
deciding official and the DRB both expressed concern that the appellant’s lack of
remorse suggested that he would display the same lack of judgment in the future.
Id. at 11 -12; I -3 AF, Tab 14 at 62. The agency also argues that the case cited by
the administrative judge to support her conclusion that the agency incorrectly
applied this factor, Smith , 62 M.S.P.R. 616 , relied on a case, Walsh v. Department
of Veterans Affairs , 62 M.S.P. R. 586 , 595 -96 (1994 ), that was subsequently
overruled by the U.S. Supreme Court , LaChance v. Erickson , 522 U.S. 262
(1998); PFR File, Tab 3 at 10 n.5. We agree.
¶22 In LaChance , the Supreme Court disagreed with the Board and the U.S.
Court of Appeals for the Federal Circuit that an agency could not use an
employee’s false denials in selecting the penalty o r as a basis for a misconduct
charge. 522 U.S. at 2 64-65. The Court conc luded that the Fifth Amendment right
to remain silent does not prohibit an agency from taking action against an
12
employee for false statements. Id. at 266 -68. An employee’s rationalizations and
lack of remorse for proven misconduct indicate little rehabil itative potential and
are properly considered as aggravating factors. Neuman v. U.S. Postal Service ,
108 M.S.P.R. 200 , ¶ 26 (2008). In the instant case, the deciding official
explained that the appellant’s failure to admit his actions were objectively
unreasonable caused her to believe he would “never be able to candidly examine
[his] actions and acknowledge [his] mista kes.” I -3 AF, Tab 14 at 61. She
expressed the concern that his conduct could recur. Id. at 62. We agree that the
appellant’s failure to apologize or acknowledge any wrongdoing suggested he
would repeat similar misconduct in the future. Accordingly, it was appropriate to
consider the appellant’s denial and lack of remorse as aggravating factors.
The appellant’s prior discipline was properly considered to the extent it
reflected on his potential for rehabilitation .
¶23 Within 1 year after the shooting incide nt at issue in this appeal, the
appellant received a 3 -day suspension for loss of his weapon. I -3 AF, Tab 14
at 61. The loss resulted from the appellant’s leaving the weapon in the trunk of a
vehicle parked in the same neighborhood as the shooting incide nt. Id. The
appellant appealed the suspension, but it was upheld, effective December 12,
2014. I -3 AF, Tab 1 5 at 59. Both the deciding official and the DRB considered
this suspension as an aggravating factor. I -3 AF, Tab 14 at 5, 61; I -4 AF, Tab 24
at 23-24. The administrative judge found that it was inappropriate to consider
discipline for conduct that occurred 1 year after the July 18, 2012 shoot ing
incident. ID at 18 (citing Cantu v. Department of the Treasury , 88 M.S.P.R. 253 ,
¶ 6 (2001) (finding that an agency erred in considering as part of the appellant’s
past disciplinary record a suspensio n that was imposed after the inciden t on which
the agency based his removal). We agree.
¶24 Citing a nonprecedential Board decision, the agency claims that there is no
requirement that it consider only discipline for conduct that predates the instant
misco nduct . Id. at 13 . The agency’ s arguments are unconvincing.
13
Nonprecedential decisions are not binding on the Board except when they have a
preclusive effect on the parties. 5 C.F.R. § 1201.117 (c)(2). Thus, we decline to
consider the nonprecedential decision on which the agency relies. However, we
modify the administrative judge’s finding to the extent the deciding official relied
on the past misconduct to illustrate the appellant’s l ack of rehabilitative potential.
I-3 AF, Tab 14 at 61; I -4 AF, Tab 24 at 41 -42. In particular, the deciding official
found that the conduct underlying the appellant’s 3 -day suspension showed he
still had “not learned appropriate weapon handling and safet y.” I -3 AF, Tab 14
at 61. W e find this to be a relevant and proper consideratio n in the penalty
determination. See Douglas , 5 M.S.P.R. at 305.
The appellant’s declination of an agency request to reenact the shooting
did not constitute a failure to cooperate with an investigation.
¶25 The agency also considered the appellant’s refusal to cooperate with the
investiga tions as an aggravating factor. I-3 AF, Tab 14 at 61. Specifically, the
agency asserted that, when it cond ucted the appellant’s compelled interview with
the OIG, he was advised that he could be subject to disciplinary action, including
dismissal, if he refused to answer or reply truthfully to each question. I -3 AF,
Tab 15 at 102, 135; I-4 AF , Tab 24 at 30. A t the end of the interview, the OIG
asked the appellant if he and his wife would be willing to reenact the event at his
home. I -3 AF, Tab 15 at 243. The appellant declined. I-3 AF, Tab 14 at 48. The
agency then included his failure to cooperate in an i nvestigation as an aggravating
factor in his penalty analysis. Id. at 61.
¶26 The administrative judge acknowledged that an appellant can be removed
for failure to cooperate in an investigation when , as here, he receives assurance
that his statements will n ot be used against him in a criminal proceeding .9 ID
9 In Garrity v. New Jer sey, 385 U.S. 493 , 500 (1967), the Supreme Court held
unconstitutional the use of statements obtained under threat of removal from office in
subsequent criminal proceedings.
14
at 20-21; Modrowski v. Department of Veterans Affairs , 252 F. 3d 1344 , 1350 -51
(Fed. Cir. 2001) . The administrative judge found that the appellant was only
advised of his options to answer under the granted immunity or to remain silent
and face dismissal with respect to the questions asked of him at the OIG interview
and that there was no evidence that t he notice extended to a declination of a
request for a reenactment. ID at 21. As such, she found that the agency erred in
using the appellant’s decision not to agree to the OIG’s request as an aggravating
factor . Id.
¶27 On review, the agency argues that it was proper to consider the appellant’s
failure to cooperate with the OIG investigation by declining a reenactment
because he was informed that he would not be prosecuted by either local or
Federal prosecutors and was provided “the appropriate notification regarding
immunity and the requirement to respond to the question s.” PFR File, Tab 3
at 15-17. In requesting that the appellant and his wife participate in a
reenactment, t he investigator stated at the end of the interview :
The only other thing that I have going forward, and that, that we
would like to request, and again, this is a request. Is we would
like to interview your wife, and if you would be willing to reenact
the, the even t at your, at your residence, we would be interested
in doing that as w ell, going forward, just trying to document all
the facts. That’s a request. Okay?
I-3 AF, Tab 15 at 243. The administrative judge found that the appellant was not
on notice that his refusal to participate in the reenactment could result in
discipline. ID at 21. After considering the language of the agency’s requests, we
find that it created an impression that the appellant would suffer no consequences
for his refusal. Accordingly, we agree that the declination of the agency’s
15
request did not constitu te a refusal to cooperate and should not have been used as
an aggravating factor.10
The agency -selected penalty of removal was reasonable .
¶28 In mitigating the penalty of removal to a 60 -day suspension the
administrative judge considered the agency’s guidelines for discipline, which
state that the standard penalty for a violation of FBI Offense Code 5.15 (Misuse
of Weapon —Intentional Discharge) is a 30 -day suspension. ID at 21; I -3 AF,
Tab 14 at 61. Mitigating factors warrant a 5 - to 14 -day suspensio n, and
aggravating factors warrant a 45 -day suspension to dismissal. ID at 22; I -3 AF,
Tab 14 at 61. The administrative judge concluded that, because the aggravating
factors should not have been applied, but the offense was still a serious one, a
60-day suspension was at the maximum reasonable penalty. ID at 22 -23.
¶29 On review, t he agency argues that, even if the above factors were
incorrectly considered to be aggravating, the nature and seriousness of the
misconduct and the higher standard of conduct impo sed on law enforcement
officers still warrant removal. PFR File, Tab 3 at 8 -10, 12 -15. As discussed
above , we found that the agency properly relied on the appellant’s denial of the
misconduct and his lack of remorse and rehabilitative potential as aggrav ating
10 The appellant claims in his cross petition for review that the agency’s consideration
of his alleged failure to cooperate as an aggravating factor also constituted a Fifth
Amendment violation, which protects his right against self -incrimination. PFR Fil e,
Tab 7 at 20 -22. The administrative judge found that the appellant failed to establish
that either the Fifth Amendment or Garrity is applicable to a situation in which an
appellant refuses a request to perform a voluntary reenactment unless otherwise
specified. ID at 23 . We agree. We have found that the appellant was informed his
participation in the reenactment was voluntary. The privilege against self -incrimination
applies when testimony is compelled. See DiMasso v. Department of Transportation ,
735 F.2d 526 , 528 (Fed. Cir. 1984) (explaining that an employee’s Fifth Amendment
right against self -incrimination was not violated when he was not required to answer the
ques tion posed to him in order to retain his job). Because the appellant was not
threat ened with any consequence, his decision not to reenact the shooting was not
compelled .
16
factors. See supra ¶¶ 22, 24 . Further, it is well established that the most
important factor in assessing an agency’s selected penalty is the nature and
seriousness of the offense and its relation to the employee’s duties, position, and
responsibil ities. Martin v. Department of Transportation , 103 M.S.P.R. 153 , 157
(2006), aff’d per curiam , 224 F. App’x 9 74 (Fed. Cir. 2007). The d eciding
official emphasized that the appellant’s misconduct was directly related to the
agency’s mission and the appellant’s ability to exercise reasonable use of force in
the performance of his duties in the future. I -3 AF, Tab 14 at 61-62. It is also
well established that an agency is entitled to hold law enforcement officers to a
higher standard of conduct than other Federal employees . O’Lague v.
Department of Veterans Affairs , 123 M.S.P.R. 340 , ¶ 20 (2016), aff’d per curiam ,
698 F. App’x 1034 (Fed. Cir. 2017).
¶30 Based on the foregoing, w e reverse the administrative judge’s mitigation of
the penalty and find the agency -selec ted penalty of removal to be reasonable. See
Mahan v. Department of the Treasury , 89 M.S.P.R. 140 , ¶¶ 2, 11 -12 (2001)
(upholding an agency -imposed penalty of removal when an employee fired her
agency -issued weapon while off duty during a domestic dispute); Kranz v.
Department of Justice , 62 M.S.P.R. 630 , 634-37 (finding removal to be
reasonable when an appellant violated state law by carrying his gun, which
discharged during an off -duty altercation) , aff’d per curiam , 43 F.3d 1486 (Fed.
Cir. 1994) ; Hylton v. Department of Transportation , 13 M.S.P.R. 335 , 337 -38,
340 (1982) (sustaining a removal when a supervisory police officer discharged his
weapon twice at an airp ort in an attempt to apprehend a fleeing suspect
notwithstanding 20 years of service and the fact that only the suspect was injured
as a result of his actions).
¶31 Accordingly, we grant the agency’s petition for review, deny the appella nt’s
cross petition fo r review , and reverse the initial decision insof ar as it mitigated
the penalty. We affirm the appellant’ s removal.
17
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 cla ims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Mer it Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If y ou wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your c ase, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circui t, which must be 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 upda ted
the notice 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
If you submit a petition for review to the U.S. Court of Appeal s for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for t he Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protecti on Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrim ination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of thi s decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representativ e in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination base d on
19
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_L ocator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, 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
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
20
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.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 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
12 The original statutory provision that provided for judicial review of certain
whistleblowe r claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 15 10.
21
for Merit Systems Protection Board appellants before the 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 | KALICHARAN_NAVIN_NY_0752_16_0167_I_4_FINAL_ORDER_2051892.pdf | 2023-07-20 | null | NY-0752 | NP |
2,871 | https://www.mspb.gov/decisions/nonprecedential/BEASLEY_AUBREY_CH_0752_17_0273_I_1_FINAL_ORDER_2051279.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AUBREY BEASLEY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -17-0273 -I-1
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aubrey Beasley , Chicago, Illinois, pro se.
Robert Vega , Esquire, Hines, Illinois, 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 30 -day suspension. For the reasons
discussed below, we GRANT the agency’s petition for review . We AFFIRM the
initial decision to the extent that it sustained the charge of inappropriate language
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
and found nexus. We REVERSE the administrativ e judge’s decision to mitigate
the penalty and AFFIRM the agency’s removal action .
BACKGROUND
¶2 At all times relevant to the present appeal, the appellant held the position of
Practical Nurse at the Jesse Brown Veterans Affairs (VA) Medical Center in
Chicago, Illinois. Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 8. The agency
removed him based on the charges of inappropriate language (two specifications),
conduct unbecoming (one specificat ion), and inappropriate conduct towards a
coworker (one sp ecification). IAF, Tab 5 at 8-19. The charges related to
behavior towards a female coworker in November 2015 and November 2016, and
the resulting December 2016 investigation into the incidents. Id. at 17 -18.2
¶3 The appellant timely ap pealed his removal. IAF, Tab 1. After holding a
hearing, the administrative judge issued an initial decision sustaining the charge
and two specifications of inappropriate language . IAF, Tab 39, Initial Decision
(ID) at 3 -4. Specification one of the ina ppropriate language charge in the
proposed removal stated that, on November 30, 2016, while the appellant was in
the break room with a male coworker , a female coworker called that individual on
the telephone and the appellant “yelled out something along the lines of kill that
bitch.” IAF, Tab 5 at 17. Specification two stated that, during a December 12,
2016, meeting with management regarding the appellant’s alleged interpersonal
conflicts with the female coworker, he admitted to calling the coworker a “bi tch”
on one unspecified occasion after she had allegedly li ed about him acting
inappropriately towards her . Id. The administrative judge did not sustain the
charges of conduct unbecoming and inappropriate conduct towards a coworker.
ID at 4 -7. The administrative judge found th at, although the appellant seem ingly
2 The removal became effective March 24, 2017, IAF, Tab 5 at 10, prior to the
enactment of the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017, Pub. L. No. 115 -41, 131 Stat. 862 . Neither party has argued
that that act has any bearing on this appeal.
3
raise d an affirmative defense of disability discrimination , he failed to respond to
the affirmative defenses order or present any evidence into the record or during
the hearing regarding thi s issue . ID at 7 -8. Therefore, the administrative judge
found that the appellant had failed to prove his affirmative defense by
preponderant evidence.3 ID at 8.
¶4 The administrative judge mitigated the penalty of removal to a 30 -day
suspension. ID at 8 -14. She did not grant deference to the agency’s penalty
determination, in large part because she sustained only the “least serious ” of the
three charges. ID at 8 -9. In determining that the agency’s penalty of removal
exceeded the tolerable limits of re asonableness, the administrative judge focused
on the context in which the appellant used the inappropriate language and the
appellant’s past discipline, both of which the deciding official considered
aggravating factors. ID at 9 -14. The administrative j udge issued an interim relief
order, stating that, should either party file a petition for review, the agency must
provide the appellant with interim relief in accordance with 5 U.S.C.
§ 7701 (b)(2)(A), effect the appellant’s appointment to his former position of
Practical Nurse, and provide the pay and benefits of that position while the
petition for review was pending. ID at 15 -16.
¶5 The agency has timely filed a petition for review asserting th at the
appellant’s removal should be sustained. Petition for Review (PFR) File, Tab 1
at 5-19, Tab 3 .
DISCUSSION OF ARGUME NTS ON REVIEW
The agency has substantially complied with the interim relief order.
¶6 When, as here, the appellant was the prevailing party in the initial decision
and interim relief was ordered, a petition for review filed by the agency must be
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).
4
accompanied by a certification that it has complied with the interim relief order.
5 C.F.R. § 1201.116 (a). On review, the agency submitted as evidence of
compliance with the interim relief order a letter sent to the appellant instructing
him to report to duty as a Practical Nurse on a date certain and informing him that
it wo uld provide him with pay, compensation, and benefits effective from the date
of the initial decision, pursuant to 5 U.S.C. § 7701 (b)(2), and replace his
March 24, 2017 removal decision letter with documentation of a 30 -day
suspension in his personnel file no later than 20 days from the date of the letter.
PFR File, Tab 1 at 20.
¶7 Although the appellant thereafter “request[ed] enforcement” of the initial
decision , arguing that the agency had thus fa r failed to provide him with back
pay, he did not raise any allegations of noncompliance with the interim relief
order. PFR File, Tab 4 at 3. The administrative judge ordered the agency to pay
the appellant the appropriate amount of back pay no later than 60 calendar days
after the initial decision became final, and the agency filed a timely petition for
review of the initial decision, which has not become the final decision of the
Board. ID at 14 -15; PFR File, Tab 1. The interim relief order did not require the
agency to provide the appellant with any back pay prior to the date of the initial
decision . ID at 15-16. Therefore, we find that th e agency provided sufficient
evidence that it complied with the interim relief order. See Archerda v.
Department of Defense , 121 M.S.P.R. 314 , ¶ 13 (2014).
The administrative judge erred in mitigating the penalty.
¶8 On review, the agency argues that the administrative judge erred in
mitigating the agency -imposed penalty of removal to a 30 -day suspension. PFR
File, Tab 1 at 12 -15. We agree. The agency also asserts that the administrative
judge erred in not sustaining the conduct unbecoming and inappropriate conduct
towards a coworker charges. Id. at 6-12. The Board need not address these
allegations of error because, as discusse d below, we find that the charge and
specifications the administrative judge sustained warrant the appellant’s removal.
5
See Luciano v. Department of the Treasury , 88 M.S.P.R. 335 , ¶ 10 (2001), aff’d ,
30 F. App’x 973 (Fed. Cir. 2002).
¶9 When an agency proves fewer than all of its charges, the Board may not
independently determine a reasonable penalty; it may mitigate to the maximum
reasonabl e penalty so long as the agency has not indicated in its final decision or
during proceedings before th e Board that it desires that a lesser penalty be
imposed on fewer charges. Alaniz v. U.S. Postal Service , 100 M.S.P.R. 105 , ¶ 14
(2005). The Board may impose the same penalty imposed by the agency if, after
balancing the mitigating factors, it is the maximum reasonable penalty. Id. The
Board’s function in reviewing an agency’s penalty selection is not to displace
management’s respon sibility but to determine whether management exercised its
judgment within the tolerable limits of reasonableness. Id. For the following
reasons, we find that the record supports the reasonableness of the removal
penalty .
¶10 During the hearing, the deciding official provided detailed testimony
regarding his consideration of the relevant Douglas4 factors in sustaining the
appellant’s proposed removal. Hearing Transcript (HT) at 169-82, 206 -16. The
deciding official testified that he viewed as aggravating factors the appellant’s
work in a healthcare setting with veterans , the high standard of conduct and
behavior towards patients and other VA employees expected of an individual in
the appellant’s position , and the notoriety of the offense in negatively affecting
the trust of veterans and the public in the level of patient care at the VA . HT
at 170-71, 175 -76. Although the appellant had a good performance record, the
deciding official testified that the appellant’s inability to get along with fellow
workers outweighed his performance record in considering this Douglas factor.
HT at 173, 196 -97, 212 -213; IAF, Tab 5 at 23 -47. The deciding official testified
4 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board set
forth a nonexhaustive list of 12 factors that a re relevant in assessing the penalty to be
imposed for an act of misconduct.
6
that he could not recall another case involving a removal penalty for an employee
who engaged in the charged conduct at issue in the present appeal, and therefore
he considered the consistency of the penalty a neutral factor. HT at 174, 215 -16.
As noted by the administrative judge in her penalty analysis, the deciding offici al
testified that he viewed as neutral the impact of the charged misconduct on the
appellant’s ability to perform his position. HT at 173 -74; ID at 14. Regarding
the effectiveness of an alternative penalty to deter such conduct in the future, the
decidin g official testified that lesser penalties in the appellant’s two prior
disciplinary actions “had failed in the past” to deter his misco nduct. HT
at 181-82.
¶11 We find that the aggravating factors outweigh the mitigating or neutral
factors in this case. In considering the context in which the improper language
was used, the administrative judge correctly noted that the November 30, 2016
incident occurred in a breakroom and, according to hearing testimony, while the
appellant and the male coworker who receive d the telephone call from the female
coworker were eating lunch. ID at 10; HT at 11 -12, 39 . However, the context of
the telephone call over which th e appellant shouted the abusive language towards
the female coworker was a work -related telephone call reg arding one of the
patients on the floor on which the appellant and other employees worked. HT
at 11-12, 39 -42. Moreover, the male coworker testified that the appellant’s
statements were loud enough for ev eryone in the breakroom to hear and that he
hung u p the telephone because he did not want the female coworker to hear the
appellant’s statements. HT at 42 . Therefore, the coworker ended a telephone call
about patient care because of the inappropriate language used by the appellant.
¶12 We disagree with the administrative judge that the interpersonal issues
between the appellant and his female coworker were a mitigating factor in
considering the context in which he used inappropriate language. As discussed
by the administrative judge, prior to the November 30, 2016 incident, the female
coworker had accused the appellant of touching her inappropriately . ID at 10.
7
VA police investigated this allegation but found “no proof to substantiate” the
complaint , and the agency did not charge the appellant with misconduct related to
this alleged incident in the proposed removal. IAF, Tab 5 at 17 -19, 58 -72.
Although the administrative judge noted that the female coworker had taken out a
civil no -contact order against the appellant, she did not acknowledge that VA
police advised the coworker to ob tain the no -contact order and that it was in
effect at the time of the No vember 30, 2016 incident, having been extended by a
Cook County Circuit Court judge approximately 6 weeks prior. ID at 10; IAF,
Tab 5 at 61-64. Regardless of the outcome of any litigation or VA police
investigation of the appellant, we find it serious th at the appellant used
inappropriate or abusive language to wards or about the female coworker under
these circumstances. Furthermore, the deciding official testified that he had taken
the job tension and personal issues that the appellant discussed in his oral reply
into consideration, but he weighed t his against the safety and well -being of
veteran patients and agency employees in the working enviro nment. HT
at 180-81.
¶13 The Board’s review of a prior disciplinary action challenged by an appellant
is limited to determining whether the action is clearly erroneous, provided that
the employee was informed of the action in writing, the action is a matter of
record, and the employee was permitted to dispute the charges before a
higher -level authority than the one that imposes the discipline. Bolling v.
Department of the Air Force , 9 M.S.P.R. 335 , 339 -40 (1981). A challenged prior
action will be discounte d as clearly erroneous i f it leaves the Board with the
definite and firm conviction tha t a mistake has been committed. Id. at 340.
¶14 The proposed removal identified two prior disciplinary actions, as follows:
(1) an April 2014 three -day suspension, mitigated from a proposed 7 -day
suspension, for disrespectful conduct towards a coworker; and (2) a 7 -day
suspension for bringing a child to work and creating a work slowdown. IAF,
Tab 5 at 18, 109-12, 114-17. During the prehearing conference, the appell ant
8
stated that he wished to challenge the merits of the se prior suspensions. IAF,
Tab 25 at 4 -5. Therefore, the administrative judge ordered the agency to provide
additional documentary evidence regarding the prior disciplinary actions. Id.;
IAF, Tab 3 0. She found that, in each of the prior actions, the appellant was
informed in writing, the actions were a matter of record, and the appellant had the
opportunity to dispute the charges before a higher level of authority. ID at 12;
see Bolling , 9 M.S.P.R . at 339 -40. The April 2014 suspension involved the
appellant using obscene, abusive language towards a fellow healthcare
professional in a work setting in front of patients and invading the coworker’s
personal space. IAF, Tab 30 at 6-32. The administra tive judge made no finding
that the April 2014 three -day suspension was clearly erroneous, and , following
our review of the record, we see no reason to m ake such a finding. ID at 12; IAF,
Tab 30 at 6 -32.
¶15 We disagree with the administrative judge’s finding that the appellant’s
7-day suspension for bringing a child to work and creating a work slowdown was
too harsh and should not have been considered as a second prior offense by the
deciding official . ID at 11 -14; IAF, Tab 30 at 33 -81. The administrative j udge
stated that the appellant had testified that the rehabilitation floor on which he
worked was short -staffed on the day in question and that the “charge nurse told
him to stay.” ID at 12 -13. However, a review of the hearing transcript reflects
that th e appellant testified only that the charge nurse “knew that [his] child was
there.” HT at 189 -90, 271 -72. We note that the appellant stated in an interview
with management shortly after the incident that the nursing supervisor knew
“later in the day” tha t his daug hter was on the ward. IAF, Tab 30 at 36.
Therefore, the record does not support the administrative judge’s conclusion that
management somehow instructed the appellant to remain at work with his
daughter on the ward. ID at 13. During the hearing, the deciding official
testified that he had not been involved in the November 2015 suspension action,
but he believed that a 7 -day suspension for bringing a child to work in a VA
9
hospital was a reasonable application of disci pline. HT at 211-12. In particular,
the deciding official contrasted an employee bringing his child into the medical
ward with children allowed under the visitor po licy. HT at 208 . He testified that
visitors are supervised by nursing staff to ensure that hand h ygiene and other
disease precautions are followed in the controlled environment. Id. Thus, the
record does not support the administrative judge’s conclusion that the agency’s
decision to discipline the appellant was clearly erroneous . ID at 12-14.
¶16 Furth er, the administrative judge’s opinion that a lesser penalty of a letter
of warning, reprimand, or an admonishment would have sufficed does not mean
the incident should not be considered as prior discipline. ID at 13. A letter of
warning, reprimand or ad monishment would constitute a prior offense and
aggravating factor . See Richard v. Department of the Air Force , 43 M.S.P.R.
303, 308 n.4 , aff’d , 918 F.2d 185 (Fed. Cir. 1990); Mitc hell v. U.S. Postal
Service , 32 M.S.P.R. 362 , 365 (1987) (finding that a prior written counseling may
serve as an aggravating factor).
¶17 Finally, we disagree with the administrative judge that removal for an
offense of inappropriate language is in consistent with the agency’s table of
penalties. ID at 14. As discussed above, the sustained charge at issue in the
present appeal was the appellant’s third disciplinary offense overall and second
particular offense for disrespectful conduct or inappropr iate language towards or
about a coworker with in a period of less than 3 years . ID at 11; IAF, Tab 5 at 18.
Regarding the calculation of prior offenses, t he VA Handbook states as follows:
Offenses need not be identical in order to support progressively more
severe disciplinary/adverse action against an employee. For
example, an employee who has received an admonishment for
AWOL can receive a reprimand for sleeping on duty, and possibly be
suspended or removed for a third offense unrelated to the two
previous infractions.
IAF, Tab 5 at 154. The deciding official testified that he considered the charges
at issue in the present appeal the appellant’s third disciplinary offense. HT
10
at 175. The agency’s table of penalties states that the penalty for a third offense
of “[d]isrespectful, insulting, abusive, insolent or obscene language or conduct to
or about supervisors, other employees, patients, or visitors” is removal. IAF,
Tab 5 at 159. The penalty for a second offense of such misconduct is a 14 -day
suspension to removal. Id. Therefore, we find that the agency’s chosen penalty
is also consistent with the table of penalties for the sustained charge .
¶18 Disrespectful conduct as manifested by the use of abusive language is
unacceptable and not conducive t o a stable working atmosphere; an agency,
therefore, is entitled to expect employees to comport themselves in conformance
with accepted standards. Wilson v. Department of Justice , 68 M.S.P.R. 303 , 310
(1995). Although the administrative judge considered the inappropriate language
charge the “least serious of the three charges,” ID at 9, removal may be a
reasonable penalty, even for relatively minor misconduct, when an employee h as
a record of prior discipline, Alaniz , 100 M.S.P.R. 105 , ¶ 16. The administrative
judge noted that not all cases before the Board involving conduct similar to the
appellant’s have resulted in removal. ID at 9 -10. However, the cases cited by the
administrative judge involved employees with either no prior disciplinary history
or prior discip line for dissimilar conduct to that for which the agency removed the
employee. ID at 10 (citing Sublette v. Department of the Army , 68 M.S.P .R. 82 ,
89-90 (1995); Davis v. Department of Justice , 63 M.S.P.R. 360 , 367 -68 (1994);
Sternberg v. Department of Defense , 52 M.S.P.R. 547 , 559 (1992); Theisen v.
Veterans Administration , 31 M.S.P.R. 277 , 279 -82 (1986); Kullenberg v. Veterans
Administration , 21 M.S.P.R. 513 , 518 (1984)). In contrast, the appellant had a
prior disciplinary record, including a prior offense for disrespectful conduct
towards a coworker. IAF, Tab 5 at 109 -12, 114 -17. Therefore, the record
supports the reasonableness of the deciding official’s decision to sustain the
penalty of removal. Id. at 10 -13.
¶19 The appellant does not challenge, and we see no reason to disturb, the
administrative judge’s findings that the agency proved the charge of inappropriate
11
language with two specifications by preponderant evidence. PFR File , Tab 4 at 3;
see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no
reason to disturb the administrative jud ge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357 , 359 (1987); see also Haebe v. Department of Justice , 288 F.3d
1288 , 1302 (Fed. Cir. 2002) (holding that the Board may overturn credibility
determinations only when it has “sufficiently sound” reasons for doing so).
Similarly, we find no reason to disturb the a dministrative judge’s finding that the
appellant failed to present any evidence or argument regarding his affirmative
defense of disability discrimination, which he does not challenge on review. PFR
File, Tab 4 at 3; ID at 7 -8.
¶20 We conclude that management ’s chosen penalty of removal falls within the
tolerable limits of reasonableness. See, e.g. , Alaniz , 100 M.S.P.R. 105 , ¶¶ 14-15;
Wilson, 68 M.S.P.R. at 309 -10 (sustaining a removal for disrespectful conduct
and the use of insulting, abusive language); see also Lewis v. Department of
Veterans Affairs , 80 M.S.P.R. 472 , ¶¶ 7-10 (1998) (upholding removal for
disrespectful conduct towards a supervisor in the presence of coworkers,
particularly considering that the employee was previously disciplined for similar
misconduct ). Accordingly, we reverse the administrative judge’s decision to
mitigate the penalty and affirm the agency’s removal action .
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
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
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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
13
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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 t his case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
14
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancem ent Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 j urisdiction.6 The court of appeals must receive your
6 The original statutory provisio n that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
15
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, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroact ive 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 | BEASLEY_AUBREY_CH_0752_17_0273_I_1_FINAL_ORDER_2051279.pdf | 2023-07-19 | null | CH-0752 | NP |
2,872 | https://www.mspb.gov/decisions/nonprecedential/SQUIRES_LARRY_DE_3330_17_0172_I_1_FINAL_ORDER_2051294.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LARRY SQUIRES,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DE-3330 -17-0172 -I-1
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Larry Squires , Golden, Colorado, pro se.
Kyle Fields , Linda Martin , and Elizabeth A. Sorrells , 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact ; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not availab le when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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 (1) the appropriate standard for the disposition of th is
matter without a hearing , and (2) why the appellant is not entitled to corrective
action on his claim of denial of an opportunity to compete under 5 U.S.C.
§ 3304 (f)(1) , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is a preference -eligible veteran who applied for an
Environmental P rotection Specialist position with the Federal Railroad
Administration , an administration within the Department of Transportation
(DOT) , sometime in June or July 2016 . Initial Appeal File (IAF), Tab 7 at 22,
28-30; see 49 U.S.C. § 103 (a). The vacancy announcement for the position state s
that only “[c]urrent DOT employees with status” may apply. IAF, Tab 7 at 30.
Since 2008, the appellant has been an employee of the Federal Transit
Administration, another administration within the DOT. IAF, Tab 1 at 24 -25,
Tab 11 at 145; see 49 U.S.C. § 107 (a). On September 16, 201 6, the agency
informed the appellant that he had been tentatively selected for the position . IAF,
Tab 7 at 19-23. On November 22, 2016, the agency rescinded the ten tative job
offer . Id. at 13-14. On December 16, 2016, the appellant filed a VEOA
3
complaint with the Department of Labor (DOL) regarding his nonselection.
IAF, Tab 1 at 22-28.
¶3 After receiving a close -out letter from DOL on January 31, 2017 , the
appellant filed a Board appeal on February 8, 2017, and did not request a hearing.
IAF, Tab 1 at 1-6, 28 -29, Tab 7 at 5 . He asserted that the agency violated his
right to compete for the position under 5 U.S.C. § 3304 (f)(1) and failed to provide
him with a career or career -conditional appointment under 5 U.S.C. § 3304 (f)(2).
IAF, Tab 1 at 5, Tab 7 at 4 -5, 7-9. In addition, he raised claims of prohibited
personnel practices and violations of merit system principles. IAF, Tab 1 at 5,
Tab 7 at 7 -9. In an Order to Show Cause , the administra tive judge found that the
Board has jurisdiction over the appeal and informed the parties that
section 3304(f)(1) may not apply to this selection process because the vacancy
was open only to agency employees , not external candidates . IAF, Tab 12. The
administrative judge provided the appellant with an opportunity to state a claim
upon which re lief can be granted under VEOA . Id. Both parties responded. IAF,
Tabs 14, 16 .
¶4 Based on the written record , the administrative judge issued an initial
decision denying both the appellant’s request for a hearing2 and his request for
corrective action under VEOA because he failed to state a claim ent itling him to
relief. IAF, Tab 17, Initial Decision ( ID) at 1 -2, 5 . Specifically, t he
administrative judge found that the appeal was timely filed and is within the
Board’s jurisdiction.3 ID at 1, 3 . He further found that 5 U.S.C. § 3304 (f)(1) did
2 Insofar as the appellant does not appear to have requested a hearing, the initial
decision contained a misstatement. IAF, Tab 1 at 2, Tab 12 at 3 -4, Tab 16, Tab 17,
Initial Decision at 1. As set forth herein, however, this misstatement did not prejudice
the appellant’s substantive rights. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984) (explaining that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).
3 The parties do not dispute, and we f ind no reason to disturb, the administrative judge’s
finding that the appellant timely filed this VEOA appeal within 15 days of his receipt of
4
not apply because the vacancy was open only to DOT employees . ID at 3 -4. In
addition, the administrative judge found that the Board l acks the authority to
decide the appellant’s prohibited personnel practice claims . ID at 4-5.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 2.4 The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over this appeal under VEOA .
¶6 A nonselection generally is not an action d irectly appealable to the Board;
however, it may be appealable under VEOA. Dale v. Department of Veterans
Affairs , 102 M.S.P.R. 646 , ¶ 7 (2006) . To establish the Board’s jurisdiction over
a VEOA appeal based on an alleged violation of veterans’ preference rights, an
appellant must show that he exhausted his remedy with DOL and make
nonfrivolous allegations that he is a preference eligible within the meaning of
VEOA, the action at issue took place on or after the October 30, 1998 enactment
of VEOA, and the agency viola ted his rights under a statute or regulation relating
to veterans’ preference. Lis v. U.S. Postal Service , 113 M.S.P.R. 415, ¶ 8 (2010 );
see 5 U.S.C. § 3330a (a)(1)(A).5 Here, the parties do not dispute , and we find no
DOL’s close -out letter . ID at 1, 3 ; IAF, Tab 7 at 5 ; see 5 U.S.C. § 3330a (d)(1)(B) ;
5 C.F.R. § 1208.22 (b).
4 With his petition for review, the appellant provides a copy of the vacancy
announcement for the Environmental Protection Specialist position . PFR File, Tab 2
at 7-11. This announcement, however, was part of the record before the administrative
judge . Compare id., with IAF, Tab 7 at 30-34; see Meier v. Department of the Interior ,
3 M.S.P.R. 247 , 256 (1980) (explaining that evidence that is already a part of the record
is not new) .
5 Because the appellant is both a preference eligible and a veteran who separated from
the U.S. Marine Corps under honorable conditions after more than 3 years of active
service , and the nonselection at issue took place in 2016, after the enactment of both
VEOA and the Veterans Benefits Improvement Act of 2004, the Board has jurisdiction
over this matter under 5 U.S.C. § 3330a (a)(1)(A) and (a)(1)(B). IAF, Tab 1 at 16, 22;
see Montgomery v. Departme nt of Health and Human Services , 123 M.S.P.R. 216 ,
¶¶ 4-5 & nn.1 -2 (2016). Analyzed under either subpart, the outcome on the merits is
the same.
5
reason to disturb, the administrative judge’s finding that the Board has
jurisdiction over this appeal . ID at 1, 3.
We modify the initial decision to clarify the legal standard for deciding the merits
of a VEOA appeal absent a hearing .
¶7 In deciding this matter without a hearing , the administrative judge
seemingly reasoned that the appellant had failed to state a cl aim upon which relief
could be granted under VEOA .6 ID at 3-5. This analysis was imprecise; indeed,
the Board has the authority to decide the merits of a VEOA appeal without a
hearing when there is no genuine dispute of material fact and one party must
prevail as a matter of law. Haasz v. Department of Veterans Affairs ,
108 M.S.P.R. 349 , ¶ 9 (2008). Dismissing an appeal for failure to state a claim
upon which relief can be granted is appropriate only if, taking the appellant’s
allegations as true and drawing all reasonable inferences in his favor, he cannot
prevail as a matter of law. Id., ¶ 8. Here , the administrative judge relied on
documentary evidence in finding that the appellant failed to state a claim upon
which relief can be granted under VEOA . ID at 3 -4. Thus, it was inappropriate
to deny the appellant’s request for corrective action based on that finding . ID
at 1-2, 5; see Haasz , 108 M.S.P.R. 349 , ¶ 8. We therefore modify the initial
decision to clarify that the appropriate standard was whether there wa s a genuine
dispute of material fact . See Haasz , ¶¶ 9-10. For the reasons set forth herein,
however, we find that no such dispute exist ed.
We agree with the administrative judge’s conclusion that the appellant wa s not
entitled to any corrective action under VEOA; however, we modify the initial
decision to clarify the legal basis for this determination .
¶8 To prevail on the merits of a VEOA appeal involving a veterans’ preference
claim, an appellant must prove the jurisdictional elements by preponderant
6 Although the administrative judge initially set forth a different legal standard, ID
at 1‑2, it does not appear that he applied this standard; rather, he ostensibly concluded
that a hearing was unnecessary because the appellant had fa iled to “state a claim” that
would entitle him to any relief , ID at 3 -5.
6
evidence. See Isabella v. Department of State , 106 M.S.P.R. 333, ¶¶ 21-22
(2007) (analyzing the appellant’s burden of proving the merits of his VEOA
appeal involvin g a veterans’ preference claim) , aff’d on recons. , 109 M.S.P.R.
453 (2008) . Here, the parties do not dispute, and we find no reason to disturb, the
administrative judge’s finding s that the appellant exhausted his remedy with
DOL, he is a preference eligible, and the nonselection to ok place after VEOA’s
enactment . ID at 3; IAF, Tab 7 at 11 -14, 28 -29; see 5 U.S.C. § 2108 (3) (defining
“preference eligible” for purposes of Title 5). Therefore, the remaining issue is
whether the agency’s action violated one or more of the appellant’s statutory or
regulatory veterans’ preference rights. See Isabella , 106 M.S.P.R. 333, ¶ 22.
¶9 As stated , the administrative judge concluded that the agency could not
have violated the appellant’s statutory veterans’ preference rights under 5 U.S.C.
§ 3304 (f)(1) becaus e the vacancy announcement for the Environmental Protection
Specialist position was open only to DOT employees . ID at 3 -4. Under 5 U.S.C.
§ 3304 (f)(1), preference eligibles and certain veterans “ may not be denied the
opportunity to compete for vacant positions for which the agency making the
announcement will accept applications from individuals outside its own
workforce under merit promotion procedures.”7 The administrative judge
reasoned that the right -to-compete provision set forth in this section would have
applied to the appellant o nly if the agency had accepted applications from
external applica nts, i.e., from non-DOT employee s, which it had not. ID at 3 -4.
On review, the appellant challe nges this conclusion and argues that language in
the vacancy announcement indicates that the agency accepted applications for the
position from individuals outside its own workforce under merit promotion
procedures, including VEOA eligibles . PFR File, Tab 2 at 5. We find this
7 The Board has found that 5 U.S.C. § 3304 (f)(1) is a statute relating to veterans’
preference for which VEOA provides a re medy. Walker v. Department of the Army ,
104 M.S.P.R. 96 , ¶ 16 (2006).
7
distinction immaterial and we modify the initial decision to clarify why 5 U.S.C.
§ 3304 (f) is inapplicable here .
¶10 In Oram v. Department of the Navy , 2022 MSPB 30, ¶ 17, the Board found
that, as a matter of law, current Federal employees are not entitled to corrective
actio n based on a claim of denial of an opportunity to compete under 5 U.S.C.
§ 3304 (f)(1). In reaching this decision , the Board relied on the U.S. Court of
Appeals for the Federal Circuit ’s decision in Kerner v. Department of the
Interior , 778 F.3d 1336 (Fed. Cir. 2015). In Kerner , after reviewing the text and
legislative history of the VEOA and its precursor, the Veterans’ Preference Act,
the Federal Circuit reasoned that nothing in the statutory language, the legislati ve
history, or case law supported a presumption that the “opportunity to compete”
provision in 5 U.S.C. § 3304 (f) applies in instances in which an applicant is
already employed in the Federal civil service. Kerner , 778 F.3d at 1338 . The
Federal Circuit reasoned that the intent of the subject provision was to assi st
veterans in obtaining an initial appointment to the Federal service , not subsequent
promotions or other intra -agency movement. Id. The court concluded that,
because veterans currently employed in a competitive service position are already
“eligible to apply” to merit promotion vacancies, such applicants could not have
been the intended beneficiaries of section 3304(f). Id. at 1338 -39. Here, b ecause
it is undisputed that the appellant was already a Federal employee, 5 U.S.C.
§ 3304 (f) was necessarily inapplicable to him regardless of whether the subject
vacancy announcement was open to external candidates . See Oram , 2022 MSPB
30, ¶ 17.
¶11 Accordingly , we affirm as modified the denial of the appellant’s request for
corrective action under VEOA.
8
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 Meri t Systems Protection Board does not
provide legal advice on which option is mo st 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 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 po ssible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial revie w in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U .S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses t he services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were a ffected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Pe rry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court ‑appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
11
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 describ ed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9 The 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 are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | SQUIRES_LARRY_DE_3330_17_0172_I_1_FINAL_ORDER_2051294.pdf | 2023-07-19 | null | DE-3330 | NP |
2,873 | https://www.mspb.gov/decisions/nonprecedential/SILVERSTEIN_JAY_SF_1221_17_0345_W_1_FINAL_ORDER_2051299.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAY SILVERSTEIN,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-1221 -17-0345 -W-1
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jay Silverstein , Mililani, Hawaii, pro se.
Alana M. Sitterly and Tracey Rockenbach , Esquire, Washington Navy
Yard, 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
denied his request for corrective action in connection with his individual right of
action appeal . On petition for review, the appellant generally disputes the
administrative judge’s findings that he did not make a protected disclosure.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 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 la w to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of t he case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 dec ision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights des cribed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one a pplies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeki ng
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you ma y visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants th at
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no 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:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial 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.3 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).
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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | SILVERSTEIN_JAY_SF_1221_17_0345_W_1_FINAL_ORDER_2051299.pdf | 2023-07-19 | null | SF-1221 | NP |
2,874 | https://www.mspb.gov/decisions/nonprecedential/MCDANIEL_STEVEN_CB_1208_23_0006_U_3_ORDER_ON_STAY_EXTENSION_REQUEST_2051317.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-3
DATE: July 19, 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 Ch airman
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 distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 action. For the reasons discussed below, OSC’s
request is GRANTED.
BACKGROUND
¶2 On April 6, 2023, OSC requested 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 Vet erans 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 disclosures and activi ties
under 5 U.S.C. § 2302 (b)(8) and (b)(9)(C). Id. On April 10, 2023, OSC’s initial
stay request was gr anted through and including May 24, 2023. Special Counsel
ex rel. Steven McDaniel v. Depar tment of Veterans Affairs , MSPB Docket No.
CB-1208 -23-0006 -U-1, Order on Stay Request, ¶¶ 1, 10 (Apr. 10, 2023 ). By
order dated May 24, 2023 , the Board granted OSC’ s request to extend the stay for
60 d ays, through and including July 23, 2023, on the same basis as the initial stay
request. 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, ¶¶ 1, 6-8 (May 24, 2023 ).
¶3 On July 7, 2023, OSC filed a timely second requ est to extend the stay for an
additional 60 days. Special Counsel ex rel. Steven McDaniel v. Department of
Veterans Affairs , MSP B Docket No. CB -1208 -23-0006 -U-3, Stay Request File
(U-3 SRF), Tab 1. The agency filed a response in opposition to OSC’s request.
U-3 SRF, Tab 2.
3
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 Transportation , 74 M.S.P.R. 155, 157 (1997).
The purpose of the stay is to minimize the consequences of an alleged prohibited
personnel practice. 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 J ustice , 105 M.S.P.R. 208, ¶ 3 (2007).
¶5 In requesting a second 60 -day extension of the existing stay, OSC asserts
that, based on t he factual record, which remains largely unchanged, it continues
to have reasonable grounds to believe that Mr. McDaniel’s prob ationary
termination constituted a prohibited personnel practice in violation of 5 U.S.C.
§§ 2302 (b)(8 ) and (b)(9)(C) . U-3 SRF, Tab 1 at 2 -8. OSC explains the actions it
has taken thus far in its investigation , to include, among other th ings, serving the
agency with requests for information , reviewing documents, and interviewing
approximately 13 witnesses . Id. at 3, 8. OSC also states that on June 2, 2023, the
agency produced over 250,000 electronic records , which OSC expended a
significant amount of time and energy reviewing during the first stay extension .
Id. OSC also asserts that its investigation is substantially complete, and requests
this additional extension to prepare a report of its findings and conclusion s for the
Special Counsel, in accordance with 5 U.S.C. § 1214 (b)(2)(B). Id. at 2-3, 8.
¶6 The agency has opposed OSC’s request, asserting that OSC cannot establish
that Mr. McDaniel’s probationary termination violated 5 U.S.C. §§ 2302 (b)(8)
and (b)(9)(C) , because the individuals with knowledge of his protected
disclosures and activities, as identified by OSC , did not make the decision to
terminate him . U-3 SRF, Tab 2 at 4, 8 -9. Instead, the agency asserts that a Chief
4
Human Resources Off icer, without knowledge of Mr. McDaniel’s protected
disclosures and activities, made the decision to terminate Mr. McDaniel during
his probationary period . Id. at 4, 8. Therefore , the agency claims that OSC
cannot establish that any protected disclosure was a contributing factor in
Mr. McDaniel’s probationary termination . Id. at 8. The agency attaches, among
other things, a copy of the probationary termination letter , which was signed by
the Chief Human Resources Officer .2 Id. at 20-22.
¶7 As an initial matter, the fact that the Chief Human Resources Officer signed
the probationary termination letter does not serve as evidence that the individuals
identified by OSC as having knowledge of Mr. McDaniel’s protected disclosures
and/or activities did not make or influence the decision. In fact, OSC has alleged
that the official who e ffected the removal action acted at the direction o f an
individual identified by OS C as having knowledge of Mr. McDaniel’s protected
disclosures and activities. U -3 SRF, Tab 1 at 7. In any event , a proceeding on
OSC’s request for an extension of a stay is not intended to be a substitute for a
complete hearing on the merits of OSC’s claim. Special Counsel v. Department
of Transportation , 71 M.S.P.R. 87 , 90 (1996). Rather, the Board considers only
whether OSC’s prohibited personnel practice claim is clearly unreasonable. Id.
Viewing the record in the light most favorable to OSC, we find that OSC’s claim
is not clearly unreasonable. See i d. In other words, the agency has not
demonstrate d that, if OSC proves all of its allegations, it could not establish the
occurrence of a prohibited personnel practice. Id. Therefore, nothing submitted
2 The agency also attaches a copy of the Standard Form 50 showing Mr. McDaniel’s
appointment, an email chain between Mr. McDaniel and the agency’s Security Office
Chief of Police reporting officer misconduct, and an email from the agency’s Office of
the Inspector General confirming that an investigation had been opened into the officer
misconduct allegation. U -3 SRF, Tab 2 at 12 -18. To the extent that the agency
attempts to argue the merits of its case, a stay proceeding is not intended to be a
substitute for a complete hearing on the merits of OSC’s claim. Special Counsel v.
Department of Transportation , 71 M.S.P.R. 87, 90 (1996) .
5
by the agency changes our previous determination that OSC’s prohibited
personnel practice claim is not clearly unreasonable.
¶8 A separate determination must be made on the length of a reques ted 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. Department of the
Treasury , 71 M.S.P.R. 419, 421 (1996). Moreover , the Board is obligated to
press OSC to present corrective action cases in a timely manner. Id. However,
because this is only OSC ’s second extension request, there is extensive
documentation in this case , and OSC has already substantially completed its
investigation , we find that a 60 -day extension of the stay is warranted, and we
therefore grant OSC’s request.
ORDER
¶9 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), a 60 -day extension of the stay is
hereby GRANTED , and it is ORDERED as follows :
(1) The stay issued on April 10, 2023, is extended through and including
September 21, 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
respon sibilities that are inconsistent with his salary or grade level, or
impose upon him any requirement that 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
evidenc e to the Clerk of the Board showing that it has complied with
this Order;
(4) Any request for an extension of this stay pursua nt 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 September 6, 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 rec eived by the Clerk of the Board on or
before September 13, 2023 .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCDANIEL_STEVEN_CB_1208_23_0006_U_3_ORDER_ON_STAY_EXTENSION_REQUEST_2051317.pdf | 2023-07-19 | null | CB-1208 | NP |
2,875 | https://www.mspb.gov/decisions/nonprecedential/JACKSON_REGINALD_L_SF_0752_19_0585_I_1_FINAL_ORDER_2051382.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
REGINALD L. JACKSON,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -19-0585 -I-1
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Reginald L. Jackson , San Diego, 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 filed a petition for review of the initial decision, which
affirmed his removal . For the reasons discussed below, we GRANT the
appellant’s petition for review and REVERSE 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 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 appellant was employed as a WG -10 Electronic Alarm System
Mechanic in the Department of Public Works at Naval Base Point Loma (NBPL).
Initial Appeal File (IAF), Tab 7 at 27. There is no dispute that the Department of
Public Works at NBPL was and remains a component of the Department of the
Navy. Id. at 6, 27 , 155 .
¶3 After the appellant reported that his car had been damaged in a base parking
lot on April 3, 2019, the NBPL Security Department conducted a background
check, which revealed that he was a registered sex offender.2 Id. at 67.
Following the incident, the agency reviewed his personnel file and discovered
that it did not contain a sex offender registry waiver for access to U.S. Navy
property . Id. at 59.
¶4 Effective April 5, 2019, the agency placed the appellant on admin istrative
leave and the NBPL Commanding Officer , a Navy Captain, barred the appellant
from entering U.S . Navy property within Navy Region Southwest (which included
the base) indefinitely. Id. at 8, 55, 57. Because the appellant was barred from
entering the base, he was unable to report for duty and was notified on April 11,
2019 , that he had been placed i n absence without leave ( AWOL ) status. Id. at 53.
Thereafter, effective July 20, 2019, the agency removed the appellant from his
position based on a charge of AWOL from April 11 to June 8, 2019. Id. at 27,
29-32, 36-38.
¶5 The appellant appealed his removal to the Board and raised due process and
harmful error affirmative defense s. IAF, Tab s 1, 12. After holding the
appellant’s requested hearing, t he administrative judge affirmed the agency’s
action . IAF, Tab 40, Initial Decision (ID). The adminis trative judge found that
the agency proved its charge of AWOL and noted that he lacked the authority to
review the barment decision that led to the appellant’s placement in an AWOL
2 The running of such background checks was standard operating procedure for the
NBPL Security Department. IAF, Tab 7 at 67.
3
status . ID at 4 -5. He also found that the appellant failed to prove his a ffirmative
defenses. ID at 5 -10. Finally, the administrative judge found that the agency
proved nexus and the reasonableness of the penalty. ID at 11 -13.
¶6 The appellant has filed a petition for review of the initial decision arguing,
among other things, that the agency forced his absences from his place of
employment and that he was ready, willing, and able to work . Petition for
Review (PFR) File, Tab 3 at 6. The agency has responded in opposition to the
petition for review. PFR File , Tab 5.
DISCUSSION OF ARGUMENTS ON REVI EW
The administrative judge erred in sustaining the AWOL charge.
¶7 In its proposal notice, the agency charged the appellant with AWOL and
articulated a single specification in support of the charge, which state d in
pertinent part as fol lows :
As of 5 April 19, you were prohibited from entering U.S. Navy
property within Navy Region Southwest (including Naval Base Point
Loma, which is your normal place of duty) indefinitely pursuant to
[the April 5, 2019 barment notice from the Commanding O fficer] .
As a result, you are unable to report to duty and perform work. On
11 April 19 you received notice that you had been placed in an
AWOL status due to your inability to report to your assigned
workplace.
IAF, Tab 7 at 36. The specification furth er stated that the appellant was carried
in an AWOL status from April 11through June 8, 2019, for a total of 360 hours of
AWOL. Id. The deciding official found that the charge and the specification
were supported by preponderant evidence , and he removed the appellant. Id.
at 29.
¶8 One way for an agency to prove a charge of AWOL is for the agency to
demonstrate that the employee was absent from duty and that his absence was
4
without authorization .3 Savage v. Department of the Army , 122 M.S.P.R. 612 ,
¶ 28 n.5 (2015) , overruled in part by Pridgen v. Office of Management and
Budget , 2022 MSPB 31 , ¶¶ 23-25. In sustaining the removal action, the
administrative judge found that the appellant was absent from duty from April 11
to June 8, 2019 , and we agree with that finding, which is undisputed by the
parties. ID at 4. The administrative judge further found that the appellant’s
absence was not authorized and that the Board lacks the authority to review the
barment decision. ID at 4 -5. We ag ree with the administrative judge that the
Board is not authorized to review the decision to bar the appellant from its
facilities4; however, whether the agency can prove that the appellant’s absence
from duty was unauthorized is a separate question that the Board must consider.
The a dministrative judge failed to do so , and thus we do so now.
¶9 Whether the agency can prove the unauthorized absence element of an
AWOL charge when the reason for the appellant’s absence was an agency
decision to bar him from hi s place of employment is the central issue in this
appeal .5 In Ely v. U.S. Postal Service , 56 M.S.P.R. 103, 105 (1992) , a Postal
worker was absent from duty for a period of time and, when he returned to work,
his supervisor purportedly orally told him that he was fired . Based on the
3 An agency may also establish a charge of AWOL by showing that an employee’s
request for l eave to excuse an absence was properly denied. Savage v. Department of
the Army , 122 M.S.P.R. 612 , ¶ 28 n.5 (2015) , overruled in part by Pridgen v. Office of
Management and Budget , 2022 MSPB 31 , ¶¶ 23-25. This is not a case in which the
appellant requested leave that was then denied .
4 The Supreme Court has held that a commanding officer has broad authority to issue a
barment letter, as long as the letter is not patently arbitrary or discriminatory . United
States v. Albertini , 472 U.S. 675 , 690 (1985) ( finding that military officers traditionally
have exercised unfettered discretion in excludi ng civilians from their area of control) .
5 On April 17, 2019, the appellant challenged, through the applicable negotiated
grievance procedure, the agency’s decision to place him in an AWOL status. IAF,
Tab 7 at 20 -21. He specifically stated that he was “ready, willing, and able to work.”
Id. at 21. Thus, it was solely the agency’s barment decision that kept the appellant from
reporting for duty. The appellant’s grievance was denied on May 16, 2019. Id.
at 22-23. There is no indication that the appellant grieved the removal action .
5
implicit instruction to stop reporting for work contained in the statement that he
was fir ed, the employee stopped coming to work and several months later the
agency removed him based on a charged of AWOL. Id. at 105 -06. While the
Board found that the AWOL charge could be sustained based on the absence prior
to the supervisor’s purported inst ruction, the Board observed that if the employee
reasonably believed that he had been fired, his absences after that date could not
be charged as AWOL. Id. at 106.
¶10 Although in Ely, whether the employee was actually told that he was fired
(and thus not to report for duty) was an unresolved factual question, here, there is
no question that the agency instructed the appellant not to report for duty.
Compare 56 M.S.P.R. at 105 -06, with IAF, Tab 7 at 55 . The barment letter could
not have been clearer, specifically stating that the appellant was prohibited from
entering U.S. Navy property in the Southwest Region, including the facility where
he worked , and also stating that if he was found on an agency facility he would be
subject to criminal prosecution . IAF, Tab 7 at 55. As the Board reasoned in Ely,
when an agency instructs an employee not to report for work, he cannot be
charged with AWOL. 56 M.S.P.R. at 106. The appellant’s absence from the
workplace was not unauthorized; it was in compliance wit h an agency instruction.
It is axiomatic that , absent unusual circumstances not present here, a Government
employee is required to comply with the instruc tions of his superiors.6 Nagel v.
Department of Health and Human Services , 11 M.S.P.R. 538, 540 (1982) (stating
that an employee “has no right to refuse to abide by legitimate supervisory
authority”) , aff’d , 707 F.2d 1384 (Fed. Cir. 1983) ; see Webster v. Department of
the Army , 911 F.2d 679 , 684 (Fed. Cir. 1990) (stating that the efficiency of the
service requires that an immediate supervisor’s lawful instructions must be
6 Limited exception s to the requirement that Government employees fol low supervisory
instructions exist when the instruction is clearly unlawful or when compliance with the
order would place the employee in a clearly dangerous situation. Harris v. Department
of the Air Force , 62 M.S.P.R. 524, 528 -29 (1994) ; Gannon v. U.S . Postal Service ,
61 M.S.P.R. 41 , 44 (1994 ). As noted, those circumstances are not present here.
6
obeyed even if the employee correctly believes that the instruction is fo olish);
Parbs v. U.S. Postal Service , 107 M.S.P.R. 559, ¶¶ 20, 22-26 (2007) (sustaining
the appellant’s removal based on a charge o f improper conduct by being
insubordinate) , aff’d , 301 F. App’x 923 (Fed. Cir. 2009) ; Griffin v. Department of
the Army , 66 M.S.P.R. 113, 116 (1995) (agreeing with the administrative judge’s
finding that a denial of supervisory authority strikes at the very heart of the
supervisor -employee relationship) , aff’d , 78 F.3d 603 (Fed. Cir. 1996) (Table) .
Moreover, the Board has held that an employee whose actions were directed by
his supervisors should not be disciplined because a Government employee may
not refuse an instruction merely because he challenges its propriety. Rose v.
Department of Housing and Urban Development , 26 M.S.P.R. 356, 360 (1985).
¶11 The agency expla ined its organizational structure in some depth in its
response to the appellant’s appeal, observing , among other things, that the Point
Lorna P ublic Works Department is a subordinate command of the Naval Facilities
Engineering Command and that it is a "tenant organization" on NBPL . IAF,
Tab 7 at 6 -7. The Board has addressed the unusual employment situation that
exists when a host organization bars an employee of a tenant organization from
the facility where he works. Rose v. Department of Defense , 118 M.S.P.R. 302
(2012); Hollingsworth v. Defense Commissary Agency , 82 M.S.P.R. 444 (1999).7
The situation present in those cases is not present here . In Rose and
Hollingsworth , the individuals were employed by the Defense Commissary
agency, a component of the Department of Defense, which operate d store s as
tenants on facilities operated by the Department of the Navy in the case of
Mr. Rose and the Department of the Army in the case of Mr. Hollingsworth . In
7 In Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 , ¶ 10 (2014) , the Board overruled
the characterization in Hollingsworth and other cases that an agency pla cing an
employee in an enforced leave status for more than 14 days constitute d a constructive
suspension; the Board held that such actions are appealable suspensions within the
meaning of 5 U.S.C. §§ 7512 (2) and 7513(d) . The finding in Abbott did not, however,
overrule the proposition for we have cited Hollingsworth .
7
this case, as noted, the appellant was employed by a component of the
Department of the Navy and was barre d from his place of employment by an
officer of the Department of the Navy. Thus, this is not a case in which one
department of the Government bars an employee of a completely separate
department from its facility.
¶12 In sum, we find that, when an appellant’ s employing agency orders him not
to report to his place of employment, the employing agency cannot then find that
the absence from duty was not authorized and remove the employee for AWOL.
Because the Board can only consider an agency action based on the charge
brought by the agency, we make no finding regarding whether the agency could
remove the appellant based on other grounds, such as the actions that led to the
appellant being required to register as a sex -offender or the appellant’s inability
to meet a requirement of employment on the base.8 Seas v. U.S. Postal Service ,
73 M.S.P.R. 422, 426 n.4 (1997) (“It is well settled tha t the Board will not
consider a charge that the agency could have brought but did not”).
ORDER
¶13 We ORDER the agency to cancel the July 20, 2019 removal action and to
restore the ap pellant effective July 20, 2019 . See Kerr v. National Endowment for
the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶14 We also ORDER the a gency 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
8 In light of our finding, we need not address the appellant’s arguments on review that
the agency violated his due process rights, committed harmful procedural error, failed
to consider a lesser penalty , and constructively suspended him when it precluded him
from reporting for work . PFR File, Tab 1 at 5 -8. Nor do we need to address the
arguments that the administrative judge erred i n his legal analysis and in how he
conducted the hearing. Id. at 8-12.
8
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.
¶15 We further ORDER the agency to tell the appellant promptly in writing
when it believes i t 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).
¶16 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 a ppellant
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).
¶17 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
documen tation 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
ATT ORNEY 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
9
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). Th e
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 CALE NDAR 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 RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described 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
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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 you must file
11
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
12
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10 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.
13
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 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) Outsid e 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 rec ord 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 deb t 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 a nd 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 ex planation 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. | JACKSON_REGINALD_L_SF_0752_19_0585_I_1_FINAL_ORDER_2051382.pdf | 2023-07-19 | null | SF-0752 | NP |
2,876 | https://www.mspb.gov/decisions/nonprecedential/NOEL_SUSAN_PH_0752_15_0172_A_1_FINAL_ORDER_2051395.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUSAN NOEL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -15-0172 -A-1
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Landrigan , Esquire, and Sara A. Buchholz , Esquire,
Washington , D.C. , for the appellant .
Lauren Russo , Philadelphia , Pennsylvania, 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 addendum initial decision,
which granted the appellant’s motion for attorney fees . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has d etermined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisi ons. In contrast, a
precedential decision issued as an Opinion and 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 due diligence, was not available when the record
closed. Titl e 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 addendum initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant filed a Board appeal of the agency’s demotion action. Noel v.
Department of Veterans Affairs , MSPB Docket No. PH -0752 -15-0172 -I-1, Initial
Appeal File (IAF), Tab 1. The parties entered int o a settlement agreement
resolving the appeal on May 13, 2015, IAF, Tab 9, and they amended the
agreement on June 5, 2015 , IAF, Tab 10. In relevant part, the agency agreed to
pay the appellant at the GS -12-08 level for a period of 2 years, effective
Decem ber 28, 2014. Id. There was no set time requirement for such payment in
the agreement. IAF, Tabs 9 -10. The administrative judge enter ed the agreement
into the record for enforcement purposes and issued an initial decision dismissing
the appeal as settl ed. IAF, Tab 11, Initial Decision. Neither party petitioned for
review of the initial decision.
¶3 On October 13, 2015, the appellant filed a petition for enforcement alleging
that the agency had failed to comply with the terms of the settlement agreement .
Noel v. Department of Veterans Affairs , MSPB Docket No. PH -0752 -15-0172 -
C-1, Compliance File ( CF), Tab 1. In particular, the appellant alleged that she
3
had not yet received back pay or current pay at the agreed -upon rate, and that the
agency had erroneou sly double -charged her for a debt. Id. at 4-5. In a response
dated November 4, 2015, the agency asserted that it was taking steps to correct
various processing errors and to implement fully the settlement agreement . CF,
Tab 3 at 4-5. After the case was reassigned to a new administrative judge , CF,
Tab 4, he held a status conference on February 9, 2017, CF, Tab 5. On March 7,
2017, the appellant filed a motion to dismiss the petition for enforcement as
withdrawn based on her representation that the agen cy was now in compliance .
CF, Tab 6. The administrative judge issued a compliance initial decision
dismiss ing the petition for enforcement as withdrawn . CF, Tab 7, Compliance
Initial Decision. Neither party petitioned for review of the compliance initi al
decision.
¶4 On June 12, 2017, the appellant filed a motion for attorney fees related to
the underlying compliance proceeding and the fee motion itself . Noel v.
Department of Veterans Affairs , MSPB Docket No. PH -0752 -15-0172 -A-1,
Attorney Fee File (A FF), Tab 1. The administrative judge issued an addendum
initial decision granting in full the appellant’s motion for attorney fees in the
amount of $10,180.30 . AFF, Tab 6, Addendum Initial Decision (AID) at 2, 10.
¶5 The agency has filed a petition for review of the addendum initial decision.
Petition for Review (PFR) File, Tab 1. The appellant has filed a response,2 PFR
File, Tab 3 , to which the agency has replied , PFR File, Tab 6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 In its petition for review , the agency clai ms that the addendum initial
decision contains an erroneous finding of material fact . PFR File, Tab 1 at 7-10.
Specifically, the agency disputes the administrative judge’s finding that the
2 The appellant requests an additional $4,457.50 in attorney fees for preparing a
response to the agency’s petition for review, and she has provided supporting
documentation. PFR File, Tab 3 at 9 -10, 12 -13. We will address this request below.
4
agency did not fully comply with the terms of the settlement agre ement until
February 2017,3 more than 1 and a half years after the parties entered into the
settlement agreement and amend ed agreement . Id.; AID at 4 -6, 10 . The agency
asserts that it remedied all of its errors in processing the appellant’s pay by the
pay period ending on December 12, 2015 . PFR File, Tab 1 at 6, 8. For the first
time on review, the agency has submitted the appellant’s earning and leave
statements for the pay periods ending on November 28 and December 12, 2015.4
Id. at 12-13. In respon se, the appellant disputes the agency’s assertion that it was
in compliance by the pay period ending on December 12, 2015. PFR File, Tab 3
at 8. She claims that , in January 2016, the agency reviewed its calculations at her
request, discovered an error, a nd submitted another remedy ticket. Id.
¶7 The agency has failed to explain why it could not have provided evidence of
compliance before the record closed despite its due diligence. See Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) ; see also Shelton v.
Environmental Protection Agency , 115 M.S.P.R. 177, ¶ 12 (2010) (explaining
that, although an appellant bears the ultimate burden of proving the agency’s
noncompliance, the agency bears the burden of producing relevant, material, and
credible evidence of its compl iance) . Although the agency ’s response to the
appellant’s motion for attorney fees includes an email showing that Human
Resources received a ticket on December 1, 2015, regarding the appellant’s
retroactive earnings , we find that the email does not prove that the agency
actually paid her back pay . AFF, Tab 4 at 53. Nevertheless, for the reasons
discussed below, we find that the agency has failed to provide a reason to disturb
the addendum initial decision.
3 Both parties represented that, at the February 2017 status conference, the appellant
confirmed that the agency was in compliance. AFF, Tab 1 at 5, Tab 4 at 5 .
4 The agency’s additional submission of evidence is incomprehensible. PFR File, Tab 1
at 11.
5
¶8 An appellant bears the burden of proving her ent itlement to attorney fees by
showing th e following : (1) an attorney -client relationship existed and fees were
incurred; (2) she is the prevailing party; (3) an award of fees is warranted in the
interest of justice; and (4) the fees are reasonable. Shelto n, 115 M.S.P.R. 177,
¶ 12. Here, the agency does not dispute, and we discern no reason to disturb, the
administrative judge’s fin ding that the appellant proved the first element. AID
at 3. Accordingly, we limit our discussion to the remaining three elements in
dispute . PFR File, Tab 1 at 9.
The appellant is the prevailing party.
¶9 To show that she is the prevailing party in the underlying compliance
proceeding , the appellant must establish that the agency materially breached the
settlement agreement at issue. Shelton , 115 M.S.P.R. 177, ¶ 12. A breach is
material when it relates to a matter of vital importance or goes to the essence of
the contract. Littlejohn v. Department of the Air Force , 69 M.S.P.R. 59, 62
(1995). Here, the agency does not dispute , and we discern no reason to disturb,
the administrative judge’s well-supported finding that paying the appellant for a
2-year perio d was a significant provision of the settlement agreement. AID at 4.
Although the agreement was silent as to the time of performance of that
provision , a reasonable time under the circumstances will be presumed. Shelton ,
115 M.S.P.R. 177, ¶ 12. As described above, t he agency claims that it correct ed
its errors in processing the appellant’s pay for the 2 -year period (consisting of
retroactive and prospective pay at the GS -12-08 level) by the pay period ending
on December 12, 2015 , approximately 6 months after the parties executed the
amended settlement agreement. PFR File, Tab 1 at 6. Even assuming, without
deciding, that the age ncy’s claim is true , we find that a 6-month delay in the
agency’s compliance with a significant provision of the agreement is
unreasonable under the circumstances. See, e.g. , Del Balzo v. Department of the
Interior , 72 M.S.P.R. 55, 60 (1996) (finding a 3 - to 4-month delay in complying
with the terms of a settlement agreement to be unreasonable), overruled on other
6
grounds by Shel ton, 115 M.S.P.R. 177 , ¶ 8 . Therefore, we agree with the
administrative judge’s finding that the agency materially br eached the s ettlement
agreement , and thus, that the appellant is the prevailing party. AID at 4-5.
An award of fees is warranted in the interest of justice.
¶10 As the administrative judge correctly stated, the interest of justice is served
by the award of attorney fees when an agency delays compliance beyond the time
set by a settlement agreement. AID at 6; see Whaley v. U.S. Postal Service ,
61 M.S.P.R. 340, 347 (1994), overruled on other grounds by Shelton ,
115 M.S.P.R. 177 , ¶ 8. Here, because we find that a 6-month delay in the
agency’s compliance is unreasonable under the circumstances , we agree with the
administrative judge ’s finding that the interest of justice is served by the award of
attorney fees. AID at 6; see Shelton , 115 M.S.P.R. 177, ¶ 12.
The requested fees are reasonable .
¶11 The agency further argues that, even assuming that a 6-month delay in its
compliance is unreasonable, the fees incurred from January 2016 to the present
are not reasonable. PFR File, Tab 6 at 6-7. In determining a reasonable fee
award, the Board starts with the “lodestar” amount, i.e., the hours reasonably
spent on the litigation multiplied by a reasonable hourly rate. Drisco ll v
U.S. Postal Service , 116 M.S.P.R. 662, ¶ 10 (2011). Here, t he agency does not
dispute , and we discern no reason to disturb, the administrative judge’s finding
that the appellant claimed reasonable hourly rate s. AID at 7-8. Thus, the
relevant inquiry is whether the appellant has established the reasonableness of the
claimed hours . See Driscoll , 116 M.S.P.R. 662, ¶ 11 (explaining that the burden
of establishing the reasonableness of the hours claimed is on the party moving for
an award of attorney fees). Beca use no hearing was held in the underlying
compliance proceeding, we need no t defer to the administrative judge’s
determination as to the reasonableness of the claimed hours. Gubino v.
Department of Transportation , 85 M.S.P.R. 518, ¶ 26 (2000). We therefore
7
consider the administrative judge’s finding on the reasonableness of the claimed
hours in light of the agency’s arguments on re view.
¶12 The agency’s main argument is that the legal work performed by the
appellant’s attorneys from January 2016 until the present did not contribute
significantly to the success of the compliance proceeding. PFR File, Tab 6 at 6 -7.
The agency cites Sowa v. Department of Veterans Affairs , 96 M.S.P.R. 408
(2004), to support its argument. PFR File, Tab 6 at 6. The B oard stated in Sowa ,
96 M.S.P.R. 408 , ¶ 16, that fees may be awarded for time spent on a separate and
option al, but factually related proceeding, if the claimed portion of work done is
reasonable and the work done in the other proceedings, or some discrete portion
thereof, significantly contributed to the success of the subsequent Board
proceeding and eliminated need fo r work that otherwise would have been
required. We find that the agency has failed to establish, and the record does not
suggest, that the appellant claimed fees for time spent on a related prior
proceeding . AFF, Tab 1 at 17 -24, Tab 3 at 10, Tab 5 at 10 . Instead, the record
reflects that the appellant’s claimed fees related to the underlying compliance
proceeding and this addendum proceeding. AFF, Tab 1 at 17 -24, Tab 3 at 10,
Tab 5 at 10. Thus, we find that the legal principle stated in Sowa does not a pply
to the instant case .
¶13 Even assuming, without deciding , that the agency was in compliance
sometime around December 2015, we find that the fees incurred from
January 2016 are reasonable . Based on our review of the record, w e find that the
appellant’s attorneys spent a reasonable amount of time from January 2016
tracking the agency’s compliance, monitoring the compliance pr oceeding,
preparing for the February 2017 status conference, drafting a motion to dismiss
the petition for enforcement , reviewing th e compliance initial decision , and
preparing for th e collection of fees related to the compliance proceeding. AFF,
Tab 1 at 20-24. We are not persuaded by the agency’s assertion that hours
claimed for internal review, indexing, and status reports are not reasonable. PFR
8
File, Tab 6 at 7; see Driscoll , 116 M.S.P.R. 662 , ¶ 17 (finding that the appellant
was entitled to fees for time re asonably spent on email status reports and
consultations). In particular, w e agree with the administrative judge ’s finding
that the fees claimed for document indexing are reasonable. AID at 8 -9; see
Thomas v. U.S. Postal Service , 87 M.S.P.R. 331 , ¶¶ 19 -21 (2000) (finding that the
administrative judge appropriately awarded fees for clerical service at a nonlegal
rate), overruled on other grounds by Shelton , 115 M.S.P.R. 177 , ¶ 10 . Moreover,
we find that t he agency has failed to articulate a reason why the Bo ard should
disallow fees claimed fo r work performed in connection with the appellant’s
successful motion for attorney fees . AFF, Tab 1 at 24, Tab 3 at 10, Tab 5 at 10;
see Driscoll , 116 M.S.P.R. 662, ¶ 30 (finding that, in addition to fees for hours
expended on the underlying appeal, the appellant was entitled to compensation for
reasonable fees incurred regarding her successful attorn ey fee petition) .
Therefore, we agree with the administrative judge’s conclusion that the appellant
is entitled to attorney fees for all claimed hours . AID at 10.
The appellant is entitled to a dditional fees.
¶14 In addition to the attorney fees awarded by t he administrative judge, the
appellant requests $4,457. 50 for fees incurred in preparing her response to the
agency’s petition for review. PFR File, Tab 3 at 9-10. Attorney time spent
preparing a response to an agency’s petition for review is compensable . Johnston
v. Department of the Treasury , 104 M.S.P.R. 527, ¶ 3 (2007). Here, t he agency
has not opposed the appellant’s motio n for additional fees , and we have no reason
to doubt the reasonableness of the hours expended. PFR File, Tab 3 at 12-13.
We therefore grant the appellant’s motion and conclude that she is entitled to
receive $14,637.80 in total attorney fees and costs. This amount represents the
$10,180.30 awarded by the administrative judge plus $4,457. 50 for fees incurred
in preparing the response to the agency’s petition for review.
9
ORDER
¶15 We ORDER the agency to pay the attorney of record $14,637.80 in fees.
The agen cy 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)).
¶16 We also ORDER the agency to tel l the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the attorney to provide all necessary information t hat 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).
¶17 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 RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
appropriate for your situation and the rights described below do not r epresent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limi ts and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your partic ular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
11
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such actio n
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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
12
with the EEOC no later than 30 calendar days after you r representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.6 The court of appeals must receive your
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Revi ew Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 Circ uit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attor ney 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 | NOEL_SUSAN_PH_0752_15_0172_A_1_FINAL_ORDER_2051395.pdf | 2023-07-19 | null | PH-0752 | NP |
2,877 | https://www.mspb.gov/decisions/nonprecedential/DOE_JOHN_AT_844E_21_0501_I_1_FINAL_ORDER_2051396.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN DOE ,1
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -21-0501 -I-1
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Michael Kleinman , Houston, Texas, for the appellant.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1 Due to certain information contained in the appeal file, the Board finds it appropriate
to grant the appellant anonymity sua sponte. Accordingly, this Final Order has been
recaptioned as “John Doe.” Additionally, the initial decision in this matter has been
recaptioned as “John Doe” and a reference to the appellant’s name in the initial decis ion
has been changed to “John Doe.”
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decis ion, which reversed its final decision and granted the
appellant’s application for disability retirement under the Federal Employees’
Retirement System . On petition for review, OPM argues that the appellant failed
to establish that her claimed conditions were disabling or that these conditions
could not be accommodated . Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material f act; 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 w ere not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not avai lable when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant’s disabling conditions could be expected to continue for at
least 1 year from the date of her application , we AFFIRM the initial decision.
¶2 The administrative judge did not make a specific finding that the appellant’s
condition was expected to continue for at least 1 year from the date she filed her
disability retirement application. On review, OPM argues that because the
appellant did not have a disabling condition, any such disability was necessarily
not expected to continue f or 1 year beyond the date of her disability retirement
application. P etition for Review File, Tab 1 at 6 -7. OPM did not otherwise make
any specific argument on this point.
3
¶3 The record shows that t he appellant applied for disability retirement on
January 23, 2020 . Initial Appeal File (IAF), Tab 18 at 59 -63. On March 20,
2020, a psychiatrist , Dr. S., provided an assessment of the appellant ’s conditions
and conclude d, among other things, that the expected duration of her disability
would be “at least 18 m onths ,” if not longer . IAF, Tab 17 at 51 -56; see IAF,
Tab 13 at 17 (noting that the undated assessment should have been dated
March 20, 2020). The record also includes an updated statement from Dr. S in
response to OPM’s initial decision denying the appe llant’s disability retirement
application, dated April 3, 2021 —more than 1 year after the date of the
appellant’s disability retirement application —stating that based on his medical
opinion, the appellant had been disabled and unable to work in her positio n prior
to her removal in January 2019, that she continued to remain completely unable to
work in her position from the date of her removal up to the present date, and that
she would continue to remain permanently and indefinitely unable to do so into
the future. IAF, Tab 13 at 7, 17. Finally, the record includes a letter from one of
the appellant’s regular care providers dated June 26, 2020, stating that despi te her
continued treatment, the appellant would not “for the foreseeable future be able to
recov er sufficiently to meet the requirements and expectations for the position she
previously held.” IAF, Tab 18 at 117 -18. Accor dingly , we conclude that
appellant established that her conditions were exp ected to continue for at least
1 year beyond the date of her disability retirement application.3
ORDER
¶4 We ORDER OPM to grant the appellant’s application for disability
retirement benefits. OPM must complete this action no later than 20 days after
the date of this Order .
3 On review, the appellant filed a motion for leave to request interim relief. PFR File,
Tab 3. We deny the appellant’ s request as moot, as interim relief is in effect only
pending the disposition of a petition for review. See 5 U.S.C. § 7701 (b)(2)(A); Garcia
v. Department of State , 106 M.S.P.R. 583 , ¶ 7 (2007) .
4
¶5 We also ORDER OPM to tell the appell ant promptly in writing when it
believes it has fully carried out the Board ’s Order and of the actions it has taken
to carry out the Board ’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board ’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
¶6 No later than 30 days after OPM tells the appellant it has fully carried out
the Bo ard’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board ’s Order. The petition should contain
specific reasons why t he appellant believes OPM has not fully carried out the
Board ’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
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 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
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of rev iew rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requ irements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. I f you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
6
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or 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 representative receives this decision before you do, t hen you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal O perations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Emplo yment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Op portunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel p ractice 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
8
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 Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the 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 o f appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DOE_JOHN_AT_844E_21_0501_I_1_FINAL_ORDER_2051396.pdf | 2023-07-19 | null | AT-844E | NP |
2,878 | https://www.mspb.gov/decisions/nonprecedential/EDWARDS_CYRIL_L_NY_0752_15_0030_M_1_FINAL_ORDER_2051422.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYRIL L. EDWARDS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-0752 -15-0030 -M-1
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
William E. Burkhart, Jr. , Esquire, Rochester, New York, for the appellant.
Roderick D. Eves , Esquire, St. Louis, Missouri, 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 remand initial decision,
which sustained the penalty of a reduction in pay and grade . For the reasons
discussed below, we GRANT the appellant’s petition for review and AFFIRM the
remand initial decision AS MODIFIED to mitigate the penalty to a 30 -day
suspension .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Supervisor, Maintenance Operations , stationed at the
agency’s Rochester Processing and Distribution Center (P&DC) . Edwards v. U.S.
Postal Service , MSPB Docket No. NY -0752 -15-0030 -I-1, Initial Appeal File
(IAF), Tab 7 at 42. On March 17, 2014, when he was scheduled to work an
8-hour tour, he worked less than 2 hours. IAF, Tab 36 at 4. A few days later, he
told an acting supervisor, who was charge d with recording time and attendance, to
credit him with 8 work hours for the day. IAF, Tab 7 at 29. On July 2, 2014, the
agency proposed reducing the appellant in grade and pay to a Mail Handler
position based on a charge of improper conduct. Id. at 23 -26. Essentially, the
agency alleged that the appellant should have but failed to submit a PS Form 3971
to document his early departure, but even if he had, he would not have been
eligible to record his absence as work time anyway. Id. After the appella nt
responded orally to the proposed action , the deciding official upheld the reduction
in grade and pay . Id. at 15 -21, 28-30.
¶3 The appellant filed a Board a ppeal arguing , among other things , that the
agency treated him more harshly than several employees w ho worked in the same
unit and committed similar offenses . Edwards v. U.S. Postal Service , MSPB
Docket No. NY -0752 -15-0030 -I-1, Initial Decision (ID) at 14 -15 (June 9, 2015);
IAF, Tab 1, Tab 31 at 53 -57. After a hearing, the administrative judge issued a n
initial decision that sustained the reduction in grade and pay, finding that the
appellant failed to show that the charges and the circumstances surrounding the
charged behavior of two employees was substantially similar to his case as they
involved diff erent work units, deciding officials, and misconduct, and that he also
failed to establish that another employee was a valid comparator. ID at 15. She
further considered that the appellant’s supervisor, a manager of Distribution
3
Operations (MDO), was also reduced in grade to a nonsupervisory position for a
similar offense .2 Id.
¶4 The appellant filed a petition for review in which he challenged, among
other thin gs, the administrative judge’s findings on consistency of the penalty .
Edwards v. U.S. Postal Service , MSPB Docket No. NY -0752 -15-0030 -I-1,
Petition for Review (PFR) File, Tab 3. The Board affirmed the initial decision as
modified regarding the penalty analysis . Edwards v. U.S. Postal Service , MSPB
Docket No. NY -0752 -15-0030 -I-1, Final Order (Jan . 5, 2016). In particular, t he
Board found that the deciding official properly considered the similar penalty that
he imposed on MDO 2 . Id. at 10.
¶5 The appellant petitioned the Federal Circuit for review . Edwards v. U.S.
Postal Service , 662 F. App’x 951 (Fed. Cir. 2016). While the petition was
pending, a Merit Systems Protection Board administrative judge issued an initial
decision in MDO 2’s appeal, mitigating her penalty to a 30 -day suspension.3
Swan v. U.S. Postal Service , MSPB Docket No. NY -0752 -15-0020 -I-1, Appeal
File ( Swan AF), Tab 30, Initial Decision (June 7, 2016) . The cour t determined
that the Board should reassess the reasonableness of the penalty in the instant
appeal in light of Swan . It therefore vacated the Board’s Final Order and
reman ded for further proceedings. Edwards v. U.S. Postal Service , MSPB Docket
No. NY -0752 -15-0030 -M-1, Remand File (RF), Tab 1, Tab 8 at 17-34. On
remand, the administrative judge again sustained the reduction in grade and pay.
RF, Tab 12, Remand Initial Dec ision (RID).
2 The appellant’s supervisor, hereinafter referred to as MDO 2, was a witness in the
instant appeal.
3 The initial decision in Swan became final when neither party petitioned for review.
See 5 C.F.R. § 1201.113 .
4
¶6 The appellant has filed a petition for review, the agency has responded in
opposition to the appellant’s petition, and the appellant has filed a reply to the
agency’s response . Remand Petition for Review (RPFR) File, Tabs 2, 4 -5.4
ANALYSIS
¶7 Choice of penalty must be based on an individualized assessment of the
facts and circumstances surrounding the particular case. Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 303 (1981) . As pertinent to the issue of penalty
in this case, the record sets forth the following facts and circumstances .
¶8 The appellant was a Fair Labor Standards Act (FLSA) -special exempt
employee, and s uch employees are subject to particular pay rules. Hearing
Transcript ( Tr.) at 9, 40 -41 (testimony of the District Manager o f Labor Relations
(MLR )). As relevant here, a special exempt employee may only receive one
category of pay per work day. Whereas an FLSA -covered employee may work
for part of a shift, take leave for another part, and receive a combination of paid
work time and paid leave to account for the entire shift, a special exempt
employee in the same situation must account for the entire shif t with only a
single category of pay —either paid leave or paid work time. Tr. at 40-41
(testimony of the MLR). In other words, for pay purposes, a special exempt
employee must account for his time in 8 -hour increments.
¶9 One category of leave available to a special exempt employee is “personal
absence.” Personal absence is paid leave that does not count against an
employee’s accrued leave balance ; essentially, the employee is paid as though he
4 The appellant makes the following challenges to the administrative judge’s decision to
sustain the charge: the agency did not appropriately notify him either of the proper
leave -requesting procedures or that his actions could result in discipline; the agency
misinterpreted its own regulations; and his managers gave him permission to take leave.
RPFR File, Tab 2 at 10 -17. He also argues that the administrative judge misinterpreted
agency supervisory rules and that the administ rative judge’s credibility determinations
are not entitled to deference. Id. at 17 -23. However, the Federal Circuit remanded the
appeal for the sole purpose of considering the penalty determination. Thus, we have not
considered these arguments.
5
worked the entire shift even though he was absent for part of i t. Tr. at 41 , 45-46
(testimony of the MLR). Personal absence is available to a special exempt
employee who work s at least 4 hours of his scheduled shift . Generally, an
employee who works less than 4 hours of his shift is ineligible for personal
absence time and must cover the entire day with another form of leave. IAF,
Tab 27 at 86; Tab 29 at 39 -40; Tr. at 42 , 45-46 (testimony of the M LR). There is,
however, a limited exception to that rule; if an employee’s part -day absence was
occasioned by an emergency and he was unable to return to duty , he is eligible
for personal absence for that day even if he worked fewer than 4 hours. IAF,
Tab 27 at 86; Tab 29 at 39 -40; Tr. at 42 (testimony of the MLR ).
¶10 On March 17, 2014, the appellant was scheduled to work Tour 1, from
midnight to 8:30 a.m. IAF, Tab 30 at 43. He clocked in at 12:19 a.m. Id. at 20.
Shortly after he arrived, the appellant observed that the operation that he was
supposed to be supervising was already being covered by a nother superviso r. Tr.
at 221 (testimony of MDO 1 ). The appellant then approached the two MDOs on
duty and inquired about the situation.5 Tr. at 221 (testimony of MDO 1) , 449
(testimony of the appellant) . The MDOs informed the appellant that there had
been a schedulin g error, that his operation was already being covered, and that he
could go home. Tr. at 221 -22 (testimony of MDO 1) , 449 (testimony of the
appellant) . The appellant walked the workroom floor to ensure that everything
was in hand, performed some miscella neous tasks, and prepared to leave. Tr.
at 449 (testimony of the appellant). Before he left, the appellant asked the MDOs
whether they would “take care of” his time. Id. (testimony of the appellant).
After MDO 2 replied that she would, the appellant le ft the building at 1:49 a.m. ,
5 There were two MDOs at the facility when the appellant arrived because of the change
in shifts and the slight overlap during the transition; MDO 1 was closing out Tour 3
from the prior evening and MDO 2 was coming on duty to start the early morning
Tour 1 shift . Tr. at 222 (testimony of MDO 1).
6
but neglected to clock out. IAF, Tab 30 at 20; Tr. at 449 (testimony of the
appellant).
¶11 Before leaving early from a shift , a Postal Service employee is required to
obtain approved leave by submitting to his manager a PS Form 3971, Request for
Notification of Absence. IAF, Tab 29 at 8 ; Tr. at 24 -25 (testimony of the MLR ),
272-73 (testimony of Supervisor of Distribution Operations (SDO 1) ). However,
the appellant in this case did not submit a PS Form 3971 when he left work early
on the date in question. IAF, Tab 29 at 27.
¶12 At the end of the pay period, on March 20, 2014, the appellant’s
timekeeper, an acting s upervisor , notified him that, although the time and
attendance system indicated that he had clocked in on March 17, 2014, at
12:19 a.m., there was no clock ring to end his tour. IAF, Tab 7 at 39; Tr. at 454
(testimony of the appellant) . Annoyed that MDOs 1 and 2 had not already
adjusted his recor ds for him, t he appellant instructed the Acting Supervisor to
record for him a full 8 hours of work time for that shift . IAF, Tab 29 at 27; Tr.
at 454. Thus, instead of requesting personal absence or some other type of leave
on a PS Form 3971 like he sho uld have, the appellant saw to it that he was paid
for 8 hours of work for that day and that the clock rings reflected that he actually
worked 8 hours.
¶13 In reviewing an agency -imposed penalty, the Board must give due weight to
the agency’s primary discreti on in maintaining employee discipline and
efficiency; the Board’s function is not to displace management’s responsibility,
but to ensure that managerial judgment has been properly exercised within
tolerable limits of reasonableness. Douglas , 5 M.S.P.R. at 302. “When the Board
sustains all of an agency’s charges[,] the Board may mitigate the agency’s
original penalty to the maximum reasonable penalty when it finds the agency’s
original penalty too severe.” Lachance v. Devall , 178 F.3d 1246 , 1260 (Fed. Cir.
1999). In assessing the reasonableness of the penalty, the Board will consider the
7
nonexhaustive list of factors s et forth in Douglas , 5 M.S.P.R. at 305-06. Thomas
v. Department of the Army , 2022 MSPB 35, ¶ 18.
¶14 The first Douglas factor, and the one upon which the Board places primary
importance, is the nature and serious ness of the offense , and its relation to the
employee ’s duties, position, and responsibilities, including whether the offense
was intentional or technical or inadvertent, or was committed maliciously or for
gain, or was frequently repeated . See Spencer v. U.S. Postal Service ,
112 M.S.P.R. 132 , ¶ 7 (2009). In this case, the deciding official found, and the
administrative judge agreed, that this factor weighed heavily against the appellant
because the appellant violated the very time and attendance regulations that it was
his job to enforce, and he d id so intentionally. IAF, Tab 7 at 16 -17; ID at 15 ; Tr.
at 365 (testimony of the deciding official).
¶15 We agree that this misconduct was particularly problematic given the
appellant’s role as a supervisor and his responsibility for enforcing agency policy
against others. See Martin v. Department of Transportation , 103 M.S.P.R. 153 ,
¶ 13 (2006) (finding that offenses related to comput er misuse were especially
serious for a supervisor who was responsible for, among other things, enforcing
agency computer use policies) , aff’d , 224 F. App’x 974 (Fed. Cir. 2007) . We also
agree that the appellant’s conduct was intentional in the sense that he chose not to
submit a PS Form 3971 as required and deliberately instructed the timekeeper to
record 8 hours of work for the day in question. However, we do not find
sufficient evidence to show that the appellant intended thereby to defraud the
agency or otherwise gain some benefit to which he knew he was not entitled.
Instead, we find it more likely that this improper recording of work time resulted
from the confluence of the appellant’s failure to understand the personal absence
rules and his failure to submit the PS Form 3971 which would have acted as a
8
safeguard against such a mistake .6 We find that the appellant’s failure to
familiarize himself with the timekeeping rules and his lax time and attendance
practices were serious acts of negligence for an employee in his position, but they
were neither malicious nor the product of dishonesty. We further note the lack of
any evidence that the charged misconduct was anything more than a one -time
occurrence.
¶16 Regarding the second Douglas factor, the deciding official found that the
appellant ’s supervisory position was an aggravating factor. IAF, Tab 7 at 17; Tr.
at 365 -66 (testimony of the deciding official ). We agree. Agencies are entitled
to hold supervisors to a higher standard than nonsuperviso rs because they occupy
positions of trust and responsibility. Gebhardt v. Department of the Air Force ,
99 M.S.P.R. 49 , ¶ 21 (20 05), aff'd , 180 Fed.Appx. 951 (Fed. Cir. 2006).
¶17 Regarding the third factor, the appellant ’s lack of prior discipline weighs in
his favor. IAF, Tab 7 at 17; Tr. at 367 (testimony of the deciding official ).
Likewise, the appellant ’s 35 years of Federal ser vice, including 13 years of good
service with the agency , is significantly mitigating under Douglas factor 4. IAF,
Tab 7 at 17; Tr. at 367 -68 (testimony of the deciding official ).
¶18 Regarding the fifth factor, the effect of the offense upon the employee ’s
ability to perform at a satisfactory level and its effect upon supervisors ’
confidence in him, the deciding official found that this factor weighed against the
appellant . IAF, Tab 7 at 17 ; Tr. at 368 (testimony of the deciding official ).
Again, w e agree. As the deciding official explained, the appellant ’s misconduct
had caused him to lose trust and confidence in the appellant ’s ability to follow
6 It is clear from the record evidence that the appellant did not understand the personal
absence rules. IAF, Tab 27 at 86; Tab 29 at 39 -40; Tr. 433 -34 (testimony of the
appellant). Two other witnesses testified that t hey believed that the appellant would
have bee n eligible for personal absence under the circumstances. Tr. at 253-55
(testimony of MDO 2), 431-32 (testimony of SDO 2 ). Based on this testimony, we find
that other supervisors and managers at the Rochester P&DC shared the appellant’s
misunderstanding of the personal absence rules. We therefore find that, regardless of
whether the appellant’s misunderstanding was reasonable, it was probably genuine.
9
and enforce agency rules, as a supervisor is required to do. Tr. at 368 (testimony
of the appellant ’s supervi sor).
¶19 Regarding Douglas factor 6, consistency of the penalty with those imposed
upon other employees for the same or similar offenses , the deciding official stated
that there was only one similarly situated employee —the appellant ’s own
supervisor , MDO 2 —who had committed similar misconduct, and he had imposed
the same reduction in grade penalty against her. IAF, Tab 7 at 17 -18; Tr.
at 368-69 (testimony of the deciding official ). The Board agreed with the
deciding official ’s assessment, Final Order, ¶¶ 14-18; ID at 14-15, but this was
before it mitigated the penalty in MDO 2’s case to a 30 -day suspension.
Although it was the Board and not the agency that mitigated the penalty in the
comparator’s case, the Federal Circuit remanded this appeal for the Boa rd to
reassess this penalty factor in light of that mitigation. RF, Tab 1; see Norris v.
Securities and Exchange Commission , 675 F.3d 1349 , 135 5 57 (Fed. Cir. 2012)
(holding that t he Board’s penalty asses sment must account for any post –adverse
action mitigation evidence that was not available to the agency ).
¶20 On remand, the administrative judge found that the appellant’s supervisor
was similarly situated to him for purposes of this penalty factor because both
employees were supervisors, both left work early , and both neglected to complete
a PS Form 3971 requesting leave for the hours that they w ere not at work . RID
at 5-6. We agree with the administrative judge ’s finding . Although the
appellant ’s supervisor left work due to illness and therefore might have been able
to claim her 6 -hour absence as work time had she submitted the required PS
Form 3971 , the charged misconduct was essentially similar and the circumstances
of the appellant ’s case closely resemble those of his supervisor.7 Id.; see
7 The agency’s rules provide that a supervisor who is abse nt for more than 4 hours of
his 8 -hour shift may not record his absence as work time unless his absence was
occasioned by an emergency and he was unable to return to duty. IAF, Tab 27 at 86;
Tab 29 at 39 -40. An illness after 2 hours of work is specifical ly cited as an example of
when this exception may apply. IAF, Tab 27 at 86.
10
Williams v. U.S. Postal Service , 586 F.3d 1365 , 1368 -69 (Fed. Cir. 2009) ; Singh
v. U.S. Postal Service , 2022 MSPB 15 , ¶ 13. Indeed, the deciding official ’s
analysis of each and every Douglas factor was practically identical for both
employees . Compare IAF, Tab 7 at 16 -19 with Swan AF, Tab 9 at 15 -18. We
find that the chief difference between the appellant and MDO 2 was that MDO 2
occupied a higher -graded managerial position that carried with it even greater
responsibility . Nevertheless, the administrative judge found that the miti gation in
Swan did not warrant a different outcome for the instant appeal because it was the
Board rather than the agency that treated these two employees differently. For
the following reasons, we do not agree with that analysis.
¶21 First, the Federal Cir cuit specifically instructed the Board to reassess this
penalty factor for the appellant in light of its decision in Swan . RF, Tab 1 at 6-7.
Discounting the Swan decision as irrelevant to this penalty factor is contrary to
the court’s explicit instructio ns. Second, the Board has always been guided by its
own precedent in these matters and has looked to what it has previously
determined to be a reasonable penalty for a given offense. E.g., Marcell v.
Department of Veterans Affairs , 2022 MSPB 33 , ¶ 14; Dias v. Department of
Veterans Affairs , 102 M.S.P.R. 53 , ¶ 16 (2006) , aff’d , 223 F. App’x 986 (Fed.
Cir. 2007) ; Seas v. U.S. Postal Service , 78 M.S.P.R. 569 , 573 -74 (1998); Gibbs v.
Department of the Treasury , 21 M.S.P.R. 646 , 650 -51 (1984). Although Swan is
not a precedential decision and is not binding on the Board , considering how
closely the two cases are linked, we find that it is appropriate for us to consider
Swan in assessing the reasonableness of the penalty in the instant appeal. We
therefore find th at the consistency of the penalty factor weighs in favor of
mitigation.
11
¶22 The eighth penalty factor concerns the notoriety of the offense .8 Douglas ,
5 M.S.P.R. at 305. The deciding official found that this factor weighed in the
appellant ’s favor because his misconduct was not known outside the agency and
was not likely to damage the agency ’s reputation. IAF, Tab 7 at 18; Tr. at 369-70
(testimony of the deciding official ).
¶23 Factor 9, however, concerns the clarity with which the employee w as on
notice of any rules that were violated, and the deciding official found that this
factor weighed against the appellant . Tr. at 370 (testimony of the deciding
official ). Specifically, he found that, although the appellant had not been
specifically i nstructed about this, time and attendance rules for supervisors were
widely known within the agency , and he did not see how anyone could think that
1.5 hours of work could entitled an employee to 8 hours of pay without
documentation to support it. Tr. at 370 (testimony of the deciding official ). We
agree with the deciding official . Although the appellant was not actually aware
that his absence was ineligible to be recorded as personal absence work time, he
was aware of the need to submit a PS Form 3971 to request such leave . IAF,
Tab 7 at 28 ; Tr. at 157 (testimony of the proposing official ).
¶24 Doug las factor 10 concerns the employee’s potential for rehabilitation .
Douglas , 5 MSPR at 305. The decision letter indicates that the deciding official
found th is factor neutral, IAF, Tab 7 at 18, but at the hearing, the deciding
official testified that this factor weighed against the appellant, Tr. at 370
(testimony of the deciding official). His rationale in both instances , however,
was consistent. The decisi on letter indicates that, although the deciding official
believes in rehabilitation, his loss of trust and confidence in the appellant requires
that the appellant demonstrate rehabilitation in a nonsupervisory role. IAF, Tab 7
8 It is undisputed that Douglas factor 7 is inapplicable to these proceedings because the
U.S. Postal Service does not have a table of penalties. IAF, Tab 7 at 18; Tr. at 369
(testimony of the deciding official); see Farris v. U.S. Postal Service , 14 M.S.P.R. 568 ,
575 (1983).
12
at 18. Similarly, the decid ing official testified that , in light of the breach of trust,
he could no longer support the appellant in a supervisory or managerial role. Tr.
at 370 -71 (testimony of the deciding official ). We find that the deciding official
did not give due considerat ion to this factor. The agency ’s loss of trust and
confidence in an employee is not the same as the employee’s potential for
rehabilitation. See Douglas , 5 MSPR at 305 . Based on the record before us, we
find that the appellant now understands that he should have used a PS Form 3971
to request written approval for leave, and that he would not be likely to commit
similar misconduct in the future. Tr. at 461 -63 (testimony of the appellant ).
¶25 Douglas factor 11 concerns other mitigating circumstanc es, such as unusual
job tensions , provocation, or other circumstances that may have contributed to the
misconduct in question. 5 M.S.P.R. at 305. The deciding official found that this
was a neutral factor because there were no such circumstances present in the
appellant ’s case. IAF, Tab 7 at 18-19; Tr. at 371 (testimony of the deciding
official ). However, we observe that the agency contributed to this problem by
overscheduling supervisors on the night in question, whereupon MDO 2
dismiss ed him from his shift early with the ambiguous assurance that she would
“take care of” his time. Tr. at 449 (testimony of the appellant ). Although the
appellant took too much license from this, and these circumstances do not justify
his subsequent actions , they are a factor to consider. Furthermore, we find
evidence that unfamiliarity with personal absence rules and lax timekeeping
practices were endemic at the Rochester P&DC during the time period in
question , and it was not unusual for employees to take leave by verbally notifying
their supervisors without obtaining written approval as required . IAF, Tab 7
at 28, Tab 21 at 19 ; Tr. at 115 -17, 132 -33 (testimony of the Acting Supervisor) ,
254-56 (testimony of MDO 2) , 429 -32 439 ( testimony of the Supervisor of
District Operations ), 463-64, 475 -76 (testimony of the appellant ).
¶26 Finally, as to Douglas factor 12, the adequacy of alternative sanctions, the
deciding official testified that he considered this factor but determined that a
13
reduction in grade was fair under the circumstances, especially given the breach
of trust. IAF, Tab 7 at 19; Tr. at 371 -72 (testimony of the deciding official ).
Although we find that the deciding official gave serious consideration to this
factor, we do not agree with his overall assessment.
¶27 The appellant’s offense in this case can fairly be characterized as one of
negligence. His failure to familiarize himself with the personal absence rules ,
combined with his failure to follow leav e requesting procedur es, created a
situation in which he was paid for 8 hours of work time that should have been
charged to his accrued leave. Not only that, but the appellant also failed to
correct the problem through proper procedures with his timekeeper when he had
the opp ortunity to do so by filling out a PS Form 1260 to correct the clock ring
error and submitting a PS Form 3971 to request written approval for leave . Had
the appellant corrected any of these deficiencies, this entire matter could have
been avoided. This cavalier approach to time and attendance is not appropriate
for a Federal employee , particularly a supervisor. Nevertheless, the appellant’s
one-time infraction was not malicious, and his many years of good service weigh
heavily in his favor . Furthermore, we find that the appellant has rehabilitative
potential and that lesser discipline will be sufficient to impress upon him the
importance of learning and following the time and attendance rules and dissuade
him from repeating the offense. Considering the totality of the circumstances, we
find that the maximum reasonable penalty in this case is the same penalty that
MDO 2 received for substantially the same offense —a 30-day suspension.
ORDER
¶28 We ORDER the agency to cancel the appellant’s reduction in grade a nd pay
and restore him to his former position of EAS -17 Supervisor, Maintenance
Operations, effective October 14, 2014, and substitute a 30 -day suspension . See
Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The
14
agency must complete this action no later than 20 days after the date of this
decision.
¶29 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 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 appellan t 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 amou nt 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.
¶30 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).
¶31 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 a ppeal 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 an d results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶32 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agricultur e (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 wi th all
documentation necessary to process payments and adjustments resulting from the
15
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 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), o r 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 HTS9
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
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 indicate d in the notice, the
Board cannot advise which option is most appropriate in any matter.
16
within t he applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for re view with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
17
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on 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, 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 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:
18
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 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
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.10 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
Decem ber 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for th e Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
19
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
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.
Contact information for the courts of appeals can be 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 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. | EDWARDS_CYRIL_L_NY_0752_15_0030_M_1_FINAL_ORDER_2051422.pdf | 2023-07-19 | null | NY-0752 | NP |
2,879 | https://www.mspb.gov/decisions/nonprecedential/MULLIGAN_SEAN_SF_0752_16_0093_I_2_FINAL_ORDER_2051436.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEAN MULLIGAN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -16-0093 -I-2
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean Mulligan , Federal Way, Washington, pro se.
Lawrence J. Lucarelli , Seattle, 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
affirmed his removal from Federal service. For the reasons set forth below, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 On October 7, 2015, t he appellant was removed for misconduct , and he filed
this appeal on November 3, 2015. Mulligan v. Department of Homeland Security ,
MSPB Docket No. SF -0752 -16-0093 -I-1, Initial Appeal File, Tab 1. On April 4,
2017, the administrative judge issued an initial decision affirming the appellant’s
removal. Mulligan v. Department of Homeland Security , MSPB Docket No. SF -
0752 -16-0093 -I-2, Refiled Appeal File (RAF), Tab 59, Initial Decision (ID). The
initial decision stated that it would become final on May 9, 2017, unless a
petition for review was filed by that date. ID at 45.
¶3 On May 9, 2017, the Board received a request for an extension of time for
the appellant to file a petition for review. Mulligan v. Department of Homeland
Security , MSPB Docket No. SF -0752 -16-0093 -I-2, Petition for Review (PFR)
File, Tab 1. The request was filed by the appellant’s representative below, who
noted tha t her office no longer represented the appellant but was assisting him
with obtaining an extension. Id. at 3. The representative requested an additional
60 days , or until July 8, 2017, for the appellant to file his petition. Id.
¶4 On May 10, 2017, the Office of the Clerk of the Board granted the request
in part and informed the appellant that he may file a petiti on for review on or
before June 8, 2017. PFR File, Tab 2 at 1. The Clerk’s Office informed the
appellant that if he did not file a petition by June 8, 2017, the initial decision
would remain the Board’s final decision. Id.
¶5 On June 9, 2017, the appellant filed his petition for review. PFR File,
Tab 3. His petition contained argument and evidence regarding why the initial
decision should be reversed but no explanation for the apparent untimeliness of
his petition . Id.
3
¶6 On June 15, 2017, the Clerk’s Office acknowledged June 9, 2017, as the
filing date of the appellant’ s petition for review and info rmed the appellant that
his petition for review appeared untimely. PFR File, Tab 4 at 1. The Clerk’s
Office set a deadline of June 30, 2017, for him to file a motion to either accept
the filing as timely or waive the time limit for good cause. Id. at 1-2.
¶7 To date, the appellant has filed no such motion with the Board. The agency
has filed a response to the petition for review, arguing, among other things, that it
should be dismissed as untimely filed. PFR File, Tab 5 at 4 -5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 A petition for review generally must be filed within 35 days after the date
of the i ssuance of the initial decision or, if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. 5 C.F.R. § 1201.114 (e). The
Board, however, may grant an extension of the time limit upon a showing of good
cause. 5 C.F.R. § 1201.114 (f).
¶9 Here, the Clerk’s Office granted the appellant an extension of time beyond
the deadline set forth in section 1201.114(e), until June 8, 2017, to f ile his
petition for review. T he appellant did not file his petition until June 9 , 2017. It
was therefore 1 day late.
¶10 The Board will excuse the untimely filing of a petition for review only upon
a showing of good cause for the delay. Via v. Office of Personnel Manageme nt,
114 M.S.P.R. 632 , ¶ 5 (2010); 5 C.F.R. § 1201.114 (g). To de termine whether an
appellant has shown good cause, the Board will consider the length of the delay,
the reasonableness of his excuse and h is showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the exist ence o f
circumstances beyond his control tha t affected his ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly sh ows a causal
relationship to his inability to timely file his petition for review. Moorman v.
4
Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed.
Cir. 1996) (Table). Upon applying these factors, we find th at the appellant has
not shown good cause for his filing delay.
¶11 In the request for an extension, the appellant’s former representative stated
that the appellant’s mother -in-law had been ill and passed away on April 30,
2017. PFR File, Tab 1 at 3. She asserted that, due to this hardship, as well as the
length of the appeal file and initial decision, he was requesting an extension of
time to file his petition through July 8, 2017. Id. As previously noted, the
Clerk’s O ffice granted the appellant an extension, until June 8, 2017, to file his
petition for review. PFR File, Tab 2; see King v. Maritime Administration ,
18 M.S.P.R. 409 , 410 n.2 (1983) (finding that an appellant failed to establish
good cause for an additional extension of time, beyond the 1 -month extension
previously granted, to file her complete petition for review).
¶12 In his petition for review, the appellant failed to acknowle dge that his
petition was untimely filed or otherwise offer any excuse for why it might have
been untimely filed. PFR File, Tab 3. Nor did he respond to the notice from the
Clerk’s Office providing him an additional oppor tunity to explain the
untimeliness of his petition. PFR File, Tab 4. T hese circumstances indicate that
he has failed to act with due diligence, even though the length of the delay was
relatively short and he is proceeding pro se . See Smith v. Department of the
Army , 105 M.S.P.R. 433 , ¶ 6 (2007); Pangelinan v. Department of Homeland
Security , 104 M.S.P.R. 108 , ¶ 9 (2006); see also Minor v. Department of the Air
Force , 109 M.S.P.R. 692 , ¶¶ 5, 7 (2008) (finding that the appellant’s statement
that he was busy due to his wife’s and mother -in-law’s signif icant health
problems, without a specific showing of how such difficulties affected his ability
to timely file a petition for review or request an extension , failed to constitute
good cause for his untimely filing).
5
¶13 Accordingly, we dismiss the petition for review as untimely filed with no
good cause shown . This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for review. The initial decision
remains the final decision of the Board regarding the removal a ppeal.
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 th e appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit you r petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono repres entation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit . The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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,
7
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 may request review by the 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:
8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 23 02(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 pet ition 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 Ci rcuit, you must submit your petition to the court at the
following address:
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.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit i s available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested i n securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 websit es, 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 | MULLIGAN_SEAN_SF_0752_16_0093_I_2_FINAL_ORDER_2051436.pdf | 2023-07-19 | null | SF-0752 | NP |
2,880 | https://www.mspb.gov/decisions/nonprecedential/EPLEY_SANDRA_DC_0432_15_0032_B_1_FINAL_ORDER_2051455.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SANDRA EPLEY,
Appellant,
v.
INTER -AMERICAN FOUNDATION,
Agency.
DOCKET NUMBER
DC-0432 -15-0032 -B-1
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debra D’ Agostino , Esquire, Washington, D.C., for the appellant.
Andrew David Linenberg and Ravi Kambhampaty , Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The a ppellant has filed a petition for review of the remand initial decision,
which sustained her removal . Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
statute or regulation or the erroneou s application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error af fected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the remand initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant held the Program Adm inistrator position at the
Inter -American Foundation (Foundation). Epley v. Inter -American Foundation ,
MSPB Docket No. DC -0432 -15-0032 -I-1, Initial Appeal File (IAF), Tab 11 at 23.
The Foundation proposed her removal for unacceptable performance. Id. at 5-13.
After the appellant responded, the Foundation issued its decision, removing her
from service, effec tive September 9, 2014. Id. at 14 -23.
¶3 The appellant filed a Board appeal challenging her removal. IAF, Tab 1.
The administrative judge dismissed the appeal for lack of jurisdiction based on
the Foundation’s status as a Government corporation, excluded from chapter 43
of title 5. IAF, Tab 17, Initial Decision. On review, the Board reversed and
remanded. Epley v. Inter -American Foundation , 122 M.S.P.R. 572 (2015) . The
Board found that while the Foundation is excluded from chapter 43 coverage , the
Board had jurisdiction over the appella nt’s removal under chapter 75. Id., ¶ 5-14.
¶4 On remand, the administrative judge developed the record and held the
requested hearing before susta ining the appellant’s removal. Epley v.
Inter -American Foundation , MSPB Docket No. DC -0432 -15-0032 -B-1, Remand
File (RF), Tab 36, Remand Initial Decision (RID). She found that the Foundation
met its burden of proving the charge, nexus, and reasonableness of the penalty.
3
RID at 6 -37. The administrative judge further found that the appellant failed to
prove her affirmative defenses of harmful procedural error ; discrimination on the
base s of gender and national origin ; reprisal for equal employment opportunity
activities ; and reprisal for testifying on behalf a coworker in a Board appeal , an
activit y protec ted by 5 U.S.C. § 2302 (b)(9)(B) . RID at 37 -48.
¶5 The appellant has filed a petition for review. Epley v. Inter -American
Foundation , MSPB Docket No. DC -0432 -15-0032 -B-1, Remand Petition for
Review ( RPFR) File, Tab 3. The Foundation has filed a response and the
appellant has replied. RPFR File, Tabs 9 -10.
The administrative judge properly sustained the charge of unacceptable
performance.
¶6 In or around February 2014, the Foundation completed the appel lant’s
performance appraisal for fiscal year 2013, finding that her performance was
unacceptable in three of four critical elements. RF, Tab 30 at 14 -28. As a result,
the Foundation placed the appellant on a 90 -day perfo rmance improvement plan
(PIP). Id. at 52 -58.
¶7 After the appellant’s PIP ended , the Foundation proposed her removal for
unacceptable performance . Id. at 4 -12. The proposal provide d a lengthy
narrative concerning the appellant’s unacceptable performance in two critical
elements and each of their subparts.2 Id. at 5 -11. The first was (1) Grant
Administration, with subparts of (a) Quality Control of Grant Documents , and
(b) Grant Database Management. Id. at 5 -7. The second critical element was
(2) Budget and Financial Management, with subparts of (a) Budget Preparation,
(b) De -obligations, and (c) Liaison with the Bureau of Public Debt (BPD)
Regarding Contract Management. Id. at 7-10. For each subpart, the Foundation’s
2 The proposal to remove the appellant did not rely on the third cri tical element for
which she previously was rated unacceptable —Program Office Management and
Support to the Vice President for Programs. RF, Tab 30 at 24 -26.
4
narrative generally follows a similar pattern of alleging that the appellant’s
performance was unacceptable, she was given an opportunity to improve during
the PIP, and her performance remained unacceptable. Id. at 5 -10. The deciding
official sustained the appellant’ s removal for t he same reasons. RF, Tab 19
at 39-47.
¶8 The appellant argues that the administrative judge erred by applying a
chapter 43 , instead of a chapter 75 , framework to the charge of unacceptable
performance. RPFR File, Tab 3 at 20 -21. Contrary to her contention, however,
the administrative judge properly analyzed the agency’s removal action under
chapter 75. RID at 6. Further , the only limit on an agency’s use of chapter 75 for
performance -based actions is a prohibition on its use to circumvent chapter 43 by
charging that the appellant should have performed better than required under the
standards communicated to her in accordance with chapter 43 requirements.
Moore v. Department of the Army , 59 M.S.P.R. 261 , 265 (1993) . The appellant
does not claim that the agency charged her with failing to perform better than was
required under her performance standard s. Nor do w e see a basis on which to
conclude the agency held the appellant to a higher standard . RF, Tab 19 at 15-27,
50-58, 73-76. Rather, as discussed below, the appellant disputes whether the
agency proved the specific facts alleged in the proposed removal. RPFR File,
Tab 3 at 20-23.
¶9 The appellant contends that the administrative judge erroneously focused on
her performance as compared to the PIP, rather than her performance as compared
to the allegations described in the proposal notice. RPFR File, Tab 3 at 20-23.
By way of example, the appellant refers to subpart (1)(a), Quality Control of
Grant Documents. Id. at 21. She notes that the PIP required that she review all
funding actions and ensur e an error rate of 5% or less. Id.; RF, Tab 30 at 54. She
further not es that her proposed removal alleged that 11 of 21 funding actions she
reviewed during the PIP “contained material errors serious enough to require
returning the packages to the Program Office for correction.” RPFR File, Tab 3
5
at 21; RF, Tab 30 at 6. According to the appellant, only 3 of the 21 funding
actions were actually returned, so the Foundation failed to prove the allegation
contained in her proposed removal, even if the Foundation showed that she failed
to meet the 5% error rate contained in the P IP. RPFR File, Tab 3 at 21. We are
not persuaded.
¶10 A specific standard of performance need not be established and identified in
advance for the appellant in a performance -based action brought under
chapter 75. Shorey v. Department of the Army , 77 M.S.P.R. 239 , 244 (1998) .
Rather, when an agency takes such an action under that chapter, it merely must
prove that i ts measuring the appellant’ s performance was both accurate and
reasonable and that the appellant’s performance was deficient. See Lovshin v.
Department of the Navy , 767 F.2d 826 , 844 (Fed . Cir. 1985) (finding that an
agency proved the appellant’s performance was deficient) ; Shorey , 77 M.S.P.R.
at 244 (discussing the agency’s burden to prove the accuracy and reasonableness
of its performance measurement ). An agency is required to prove onl y the
essence of its charge, however, and need not prove each factual specification
supporting the charge . Burroughs v. Department of the Army , 918 F.2d 170 , 172
(Fed. Cir. 1990) ; Cole v. Department of the Air Force , 120 M.S.P.R. 640, ¶ 8
(2014) . For example, if an agency charged an employee with theft of
Government property and the corresponding narrative described a single occasion
on which he stole three items, the charge would not fai l if the agency could only
prove that he stole only two of those items. Otero v. U.S. Postal Service ,
73 M.S.P.R. 198 , 204 (1997).
¶11 Turning to the instant case , the Foundation charged the appellant with
unacceptable performance. RF, Tab 30 at 4-10. For (1)(a), Quality Control of
Grant Documents, the agency’s allegations describe the appellant’s quality
control errors, both before and during the PIP. Id. at 5 -6. Although the appellant
would have us construe the allegations pertaining to the PIP per iod i n a very
technical manner, supra ¶ 9, we decline to do so. In any event, t he record shows
6
that 11 of 21 funding actions the appellant was responsible for reviewing during
the PIP contained errors, despite her review. E.g., RF, Tab 31 at 5 -34. As the
administrative judge recognized, many of these errors appeared to be ones that
should have been discovered easily , for example omitting entire sections or
attachments. E.g., id. at 11; RID at 14. The fact that Foundation officials caught
and corrected many errors that the appellant was responsible for, rather than
catching them and returning them for someone else to correct, is not dispositive.
¶12 The appellant presents similarly unavailing arguments pertaining to each of
the other critical element subparts. RPFR File, Tab 3 at 22 -23. Regarding (1)(b),
Grant Database Management, the appellant was responsible for reconciling
critical data in the Grant Evaluation and Management System (GEMS). RF,
Tab 30 at 6 -7, 16. According to the proposed removal, the appellant had failed to
do so, resulting in a significant discrepancy by January 2014, after which she
repeatedly missed deadlines to resolve the problem. Id. at 6 -7. The proposal
further alleged th at the February 2014 PIP directed the appellant to keep GEMS
up to date by entering data within 3 days of actions taken, but a subsequent report
showed a GEMS discrepancy of over $155,000 and four altogether missing
entries. RF, Tab 30 at 7, Tab 31 at 54 -55.
¶13 On review, the appellant does not dispute those discrepancies or missing
entries, nor does she argue that she performed successfully before or during the
PIP. RPFR File, Tab 3 at 22. Instead, she summarily argues that the proposed
removal referred to the PIP’s 3 -day requirement and the Foundation’s report does
not establish that specific delay. Id. We disagree. The appellant’s argument
seems to overlook the fact that the report was run on April 19, 2014, for the
period ending March 30, 2014, thereb y including at least 19 days of unreconciled
data. RF, Tab 31 at 54 -55. Moreover, this argument similarly suggests that we
should construe the agency’s allegations in a technical manner and one that is
inconsistent with the essence of the agency’ s charge , which we will not do.
7
Therefore, the administrative judge properly sustai ned this specification. RID
at 15-20.
¶14 Regarding (2)(a), Budget Preparation, the appellant was responsible for
preparing and recommending the budget and budget projections for t he
Foundation’s Program Office. RF, Tab 30 at 7, 21. According to the proposed
removal, the appellant’s participation in this process had been passive, included
many errors, and did not demonstrate that she underst ood key steps and
requirements. Id. at 7. The proposal further recognized that, as a result, the PIP
instructed the appellant to develop a robust plan for how she would plan,
schedule, and execute the standards of her Budget and Financial Management
critical element. Id. at 7 -8, 54. In other words, the PIP did not instruct the
appellant to develop the next budget, it instructed her to develop a robust plan for
how she would do so. Nevertheless, the appellant reportedly failed to develop an
appropriate plan, despite repeated clarific ation s of expectations, explanations of
the inadequacies of her drafts, extensions of the associated deadlines, and
definitive guidance from several senior officials. Id. at 7 -8.
¶15 On review, the appellant suggests that the administrative judge erroneously
found her performance unacceptable because she failed to produce a budget, and
not because she failed to produce the r obust plan required by the PIP. RPFR File,
Tab 3 at 22 -23. We disagree. Although the administrative judge did refer to the
appellant’s failure to complete a “budget plan” while discussing (2)(a), she did so
in the context of finding that the appellant failed to meet the PIP’s requirement
for a robust plan. RID at 23 -26. The appellant argues that the administrative
judge did not evaluate the third and fourth drafts of the plan she submitted before
the PIP ended . PFR File, Tab 3 at 23. However, that argument also fails because
the administrative judge did in fact discuss drafts submitted on April 3, April 21,
April 23, and May 16, 2014, as well as their inadequacies, as reflected by the
drafts th emselves and witness testimony. RID at 24 -26.
8
¶16 Regarding (2)(b), De -obligations, and (2)(c) Liaison with the BPD, the
appellant suggests that her supervisor essentially has penalized her for perio ds of
leave, and the administrative jud ge failed to recognize as much. RPFR File,
Tab 3 at 23. Once more, we are not persuaded. The proposal to remove the
appellant alleged that, pursuant to (2)(b), the appellant was responsible for , but
altogether fail ed to prepare , a de -obligation rep ort at any time during the PIP.
RF, Tab 30 at 8 -10. It described the appellant’s actions on the report between
March and June 2014, culminating in her departure for vacation without having
completed the de -obligation rep ort or explaining to others how do so.3 Id.
at 9-10. The proposal also alleged that, pursuant to (2)(c), the appellant was
responsible for , but failed to , develop a plan to keep her supervisor informed of
contract statuses, which ultimately resulted in a failure to timely renew key
contractor bidding. Id. at 10. The agency observed that , despite criticism of the
appellant in her fiscal year 2013 performance evaluation that she failed to keep
her supervisor informed of the need to renew or rebid contract , she repeated her
failure by leaving for vacation without ensuring that support staff was aware of
required timelines on four key contracts. Id. at 10, 23. Under the circumstances,
we find no merit to the appellant’s argument. The Foundation’s allegati ons
clearly explain that the appellant failed to perform as expected, not because she
took leave, but because she failed to ensure that time -sensitive work was
completed either before or during her vacation.
¶17 Based on the above, we agree with the administra tive judge’s conclusion
that the Foundation met its burden of proving the charge.
3 One of the appellant’s subordinates prepared the plan while the appellant was on
vacation. RF , Tab 30 at 10.
9
The administr ative judge properly deferred to the Foundation ’s selecti ng removal
as a reasonable penalty.
¶18 When an agency proves its sole charge of poor performance, its p enalty
decision is entitled to deference and is reviewed only to determine whether the
agency responsibly balanced the relevant factors in the individual ca se. Winlock
v. Department of Homeland Security , 110 M.S.P.R. 521, ¶ 20 (2009) , aff’d per
curiam , 370 F. App’x 119 (Fed. Cir. 2010) ; see Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 305 -06 (1981) (providing a nonexhaustive list of
factors that may be relevant in selecting an appropriate penalty).4 In determining
whether the selected penalty is reasonabl e, the Board defers to the agency’s
discretion in exercising its managerial function of maintaining employee
discipline and efficiency. Davis v. U.S. Postal Service , 120 M.S.P.R. 457 , ¶ 6
(2013) . The Board will independently weigh the relevant factors only if the
deciding official failed to demonstrate that he considered any speci fic, relevant
mitigating factors before deciding upon a penalty , or if he clearly exceeded the
4 The Douglas factors include, but are not limited to : (1) the nature and seriousness of
the offense, and its r elation to the employee’s duties, position, and responsibilities,
including whether the offense was intentional or technical or inadvertent, or was
committed maliciously or for gain, or was frequently repeated; (2) the employee’s job
level and type of empl oyment, including a supervisory or fiduciary role, contacts with
the public, and prominence of the position; (3) the employee’s past disciplinary record;
(4) the employee’s past work record, including length of service, performance on the
job, ability to g et along with fellow workers, and dependability; (5) the effect of the
offense upon the employee’s ability to perform at a satisfactory level and its effect upon
supervisors’ confidence in the employee’s ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or
similar offenses; (7) consistency of the penalty with any applicable agency table of
penalties; (8) the notoriety of the offense or its impact upon the agency’s reputation ;
(9) the clar ity with which the employee was on notice of any rules that were violated in
committing the offense, or had been warned abou t the conduct in question;
(10) potential for the employee’s rehabilitation; (11) mitigating circumstances
surrounding the offense s uch as unusual job tensions, personality problems, mental
impairment, harassment or bad faith, malice or provocation on the part of others
involved in the matter; and (12) the adequacy and effectiveness of alternative sanctions
to deter such conduct in the future by the employee or others. Douglas , 5 M.S.P.R.
at 305-06.
10
limits of reasonableness . Gmitro v. Department of the Army , 95 M.S.P.R. 89 , ¶ 8
(2003), aff’d per curiam , 111 F. App’x 610 (Fed. Cir. 2004).
¶19 In this case, the Foundation did not include a Douglas factor analysis in its
proposal to remove the appellant or the subsequent decision letter. RF, Tab 19
at 39-47, Tab 30 at 4-12. In fact, as recognized in the remand initial decision, the
deciding official indicated that his written decision did not discuss each Douglas
factor because he mistakenly believed that he had the authority to effectuate t he
removal under procedures other than those required f or a chapter 75 adverse
action. RID at 37 (citing RF, Tab 34, Hearing Compact Disc (HCD1) (testimony
of the deciding official)) ; see Lisiecki v. Merit Systems Protection Board ,
769 F.2d 1558 , 1567 -68 (Fed. Cir. 1985) (observing that t he Board does not have
authority to mitigate the penalty in a chapter 43 action ). Nevertheless, the
deciding official i nsisted that he considered the relevant Douglas factors. Id.
¶20 Before the administrative judge, the appellant argued that the Foundation
committed a harmful error by failing to consider the Douglas factors pertaining to
prior discipline and length of Govern ment service. RF, Tab 26 at 6. The
appellant alleged, b ased on the deciding official’s statements during a deposition,
that he failed to consider her more than 20 years of Government service and lack
of prior di scipline as mitigating factors. Id. at 6, 99. The administrative judge
disagreed . RID at 36-38. She found that while the deciding official did not
explicitly discuss each Douglas factor in his written decision, he testified in a
credible manner that he considered all relevant factors. RID at 38 (citing HCD1
(testimony of the deciding official)). The appellant does not appear to argue
otherwise on review and we find no basis for disturbing the adm inistrative
judge’s conclusion. See Haebe v. Department of Justice , 288 F.3d 1288 , 1301
(Fed. Cir. 2002) (recognizing that the Board must defer to an administrative
judge’s credibility determinations when they are based, e xplicitly or implicitly,
on observ ing the demeanor of witnesses testifying at a hearing).
11
¶21 In discussing the appellant’s harmful error claim, the administrative judge
relied, in part, on a nonprecedential Board decision, where in the majority of the
Board found no due process violation in the conte xt of an appeal that was
converted from chapter 43 to chapter 75, somewhat similar to the appeal currently
before us. RID at 38-39 (citing Miller v. General Services Administration , MSPB
Docket No. SF -0752 -12-0189 -I-1, Final Order (Aug. 29, 2013)). Based largely
on the dissent ing opinion in that nonprecedential Miller decision, the appellant
now argues that the deciding official committed a due process violation. RPFR
File, Tab 3 at 24-30. She alleges that the deciding official improperly considered
aggravating Douglas factors without providing her notice and an opportunity to
respond. Id.
¶22 As an initial matter, we find no indication that the appellant presented any
argument concerning a denial of due process below. RF, Tabs 26 -27; see Banks
v. Departme nt of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (finding that the
Board generally will not consider an argument raised for the first time on review
absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence); 5 C.F.R. § 1201.115 (d) ( reflecting
that the Board generally does not grant a petition for review based on new legal
argument) . Moreover, even if she had, we find the appellant’s due process
arguments unav ailing.
¶23 Pursuant to the U.S. Court of Appeals for the Federal Circuit’s decisions in
Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir. 2011), and Stone
v. Fede ral 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 decisions on
the merits of a proposed charge or the penalty to be imp osed. The court
explained that, if an employee has not been given “notice of any aggravating
factors supporting an enhanced penalty,” an ex parte communication with the
12
deciding official regarding such factors may constitute a constitutional due
process violation. Ward , 634 F.3d at 1280.
¶24 In this case, the appellant attempts to cast virtually all of the deciding
official’s considerations as unnotice d aggravating factors. For example, the
appellant points to the deciding official’s testimony that he considered the nature
and seriousness of the offense, the frequency with which it was repeated , and the
impact on the agency. RPFR File, Tab 3 at 25. The appellant also points to his
considering her job level in “a grade that should have prepared her to be
self-directed in many respects.” Id. (quoting HCD1 (testimony of the deciding
official)). Further, the appellant points to the deciding official’s testimony that
the appellant “was unable to perform during the PIP period and that was a strong
indication that she was unable to perform the job,” as well as his r ecognition that
the appellant “did not seem to take accountability for her performance
defici encies.” Id. at 26 -27.
¶25 Although we have reviewed each of the appellant’s arguments considering
improper considerations by the deciding official, none is persuasive. We find no
indication that the deciding official considered any unnoticed aggravating fac tor
in sele cting the appropriate penalty. While the appellant suggests that she lacked
prior notice regarding considerations such as the nature and seriousness of the
offense, the proposed removal is filled with corresponding details concerning her
perfor mance deficien cies and their resulting harm. See RF, Tab 30 at 4-11.
Similarly, while the appellant suggests that she lacked prior notice that the
deciding official would consider the fact that she did not take responsibility for
her actions , the proposed removal specifically discussed her alleged pattern of
shifting blame to others. Id. at 9. Moreover, as recognized in the decision letter,
the appellant responded to her proposed removal by denying all the allegations
and claiming that her p erformance was satisfactory. RF, Tab 19 at 39, 48; see
also Mathis v. Department of State , 122 M.S.P.R. 507 , ¶ 9 (2015) (holding th at a
deciding official did not violate an employee’s due process rights by considering
13
issues raised in an appellant’s response). The proposal notice also discussed the
appellant’s past instances of poor performance and the background materials
referred t o in the proposal notice reference the expectation that she exhibit
initiative . RF, Tab 30 at 4 -5, 18, 25 -26.
¶26 Accordingly, we find that the administrative judge properly sustained the
appellant’s removal.5
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of ho w courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Fail ure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please 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.
5 Because the appellant has not challenged the administrative judge’s other findings,
including those pertaining to her discrimination and reprisal affirmative defenses, we
will not revisit those matters.
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 ma tter.
14
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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
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 later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, 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:
16
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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 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 | EPLEY_SANDRA_DC_0432_15_0032_B_1_FINAL_ORDER_2051455.pdf | 2023-07-19 | null | DC-0432 | NP |
2,881 | https://www.mspb.gov/decisions/nonprecedential/SCHULTZ_ALBERT_P_PH_0752_94_0233_C_7_FINAL_ORDER_2051469.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALBERT P. SCHULTZ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
PH-0752 -94-0233 -C-7
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alexander Schultz , Esquire, Lake Worth, Florida, for the appellant.
Mark Manta , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appell ant has filed a petition for review of the initial decision, which
denied his petition for enforcement. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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 availabl e 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 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).
BACKGROUND
¶2 This case has a lengthy and complex procedural history that is largely
irrelevant to the current proceedin g, and we recount only the pertinent history
here.2 In a December 16, 2016 Final Order , the Board awarded the appellant
$100,733.89 in attorney fees and costs and ordered the agency to pay the
appellant the amount awarded within 20 days of the date of the Order. Schultz v.
U.S. Postal Service , MSPB Docket No. PH -0752 -94-0233 -M-1, Final Order , ¶ 56
(Dec. 16, 2016). On January 31, 2017, the appellant filed a petition for
enforcement of the Final Order. Schultz v. U.S. Postal Service , MSP B Docket
No. PH -0752-94-0233 -C-7, Compliance File (C -7 CF) , Tab 1. He alleged that,
although the agency had paid him the amount owed by check , the agency had
declined his request to stipulate that his deposit of the check did not waive his
right to pursue a further appeal of the fee award, thus he returned the check.
C-7 CF, Tab 1 at 4 -7. He also noted that, although he returned the check, he still
2 For a summary of the underlying proceedings, see Schultz v. U.S. Postal Service ,
MSPB Docket No. PH -0752 -94-0233 -M-1, Final Order , ¶¶ 2-7 (Dec. 16, 2016).
3
received an Internal Revenue Service Form 1099 -MISC reflecting the payment.
Id. at 7. He requested that the Board “determine the parties’ rights and
obligations” regarding the check and direct the agency to correct the 1099 -MISC
to reflect the returned payment. Id. The agency opposed the petition on the
grounds that it was untimel y and that the agency had fully complied with the
Board’s Final Order .3 C-7 CF, Tab 3 at 4-6.
¶3 The administrative judge issued a compliance initial decision finding that
the agenc y had fully c omplied with the Board’s Final O rder by issuing the check
for th e full amount of the fee award to the appellant. C -7 CF, Tab 8, Compliance
Initial Decision (CID) at 3. He also noted that the appellant was not contesting
the amount of fees awarded in the underlying appeal and had filed an appeal of
the fee award with the Equal Employment Opportunity Commission (EEOC),
which subsequently concurred in the Board’s December 16, 2016 Final Order.
Id.; C-7 CF, Tab 7 at 5-8. Accordingly, he denied th e petition for enforcement.
CID at 3.
¶4 The appellant has filed a petition f or review of the compliance initial
decision in which he argues that the administrative judge erred in finding that he
did not contest the amount of attorney fees awarded to him in the underlying
appeal and renews his request for an order directing the age ncy to pay the
appellant without any restriction on his right to appeal the fee award. Schultz v.
U.S. Postal Service , MSPB Docket No. PH -0752 -94-0233 -C-7, Petition for
Review ( C-7 PFR) File, Tab 1 at 4-7. The agency has not responded to the
petition.
3 The administrative judge did not make findings as to the timeliness of the petition, but
we do not reach this issue because we agree with the administrative judge that the
petition must be denied on the merits.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The EEOC’s decision concurring with the Board’s December 16, 2016 Final
Order concluded the administrative process available to the appellant to contest
the Board’s fee award, and there is no indication that the appellant appealed the
decision to the applicable Federal district court . See 5 C.F.R. § 1201.161 (f).
Enforcement proceedings are not to be used to revisit the merits of an underlying
appeal, thus we decline to consider any challenge to the attorney fee award in the
underlying appeal . Henry v. Department of Veterans Affairs , 108 M.S.P.R. 458 ,
¶ 24 (2008).
¶6 In addition , the administrative judge properly concluded that the agency had
complied with the Board’s Final Order. The appellant does not dispute that he
received the agency’s check for the awarded fee amount, and he cites no authority
under which the Board is obligated to order the agency to stipulate that the
appellant may deposit the check for attorney fees without risking waiver of any
right to appeal the fee award. C-7 PFR File, Tab 1 at 6. Although the opinion s
the appellant has cited in support of his position indicate that he may risk waiver
of his right to appeal the fee award in F ederal district court by depositing the
check, they do not mandate such an outcome, nor do they impose an obligat ion
upon the Boa rd to prevent this outcome.4 Id. at 6-7; compare St. John v. Potter ,
299 F. Supp. 2d 125, 129 (E.D.N.Y. 2004) (find ing that the plaintiff’s accepting a
check representing the entire EEOC award satisfied her claims against the
defendant), with Massingill v . Nicholson , 496 F.3d 382 , 386 (5th Cir. 2007)
(finding that 42 U.S.C. § 2000e -16(c) does not preclude suit if an award has been
partially or completely rendered) . The appellant ’s acceptance of the fee award
and subsequent appeal of it are at his own peril.
4 Moreover, the opinions of the Eastern District of New York and the Eastern Distri ct of
Virginia constitute persuasive authority that is not binding on the Board. See Lind sley
v. Office of Personnel Management , 96 M.S.P.R. 259 , ¶ 17 (2004) , aff’d , 126 F. App’x
959 (Fed. Cir. 2005).
5
¶7 The compliance initial decision is affirmed .
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review a nd the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advi ce on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you shou ld
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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).
5 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.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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 disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (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
7
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact informat ion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any s uch request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your repres entative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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.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 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
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
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.
Contact information for the courts of appeals can be 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 | SCHULTZ_ALBERT_P_PH_0752_94_0233_C_7_FINAL_ORDER_2051469.pdf | 2023-07-19 | null | PH-0752 | NP |
2,882 | https://www.mspb.gov/decisions/nonprecedential/STUART_CHRISTOPHER_PH_0841_16_0442_I_1_FINAL_ORDER_2051499.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER STUART,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
PH-0841 -16-0442 -I-1
DATE: July 19, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Stuart , Charles Town, West Virginia, pro se.
Joanne M. Halley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a pe tition for review of the initial decision, which
affirmed the agency’s decision finding that he is ineligible for enhanced Customs
Border Protection Officer (CBPO) retirement benefits. Generally, we grant
petitions such as this one only in the following c ircumstances: 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
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
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 jud ge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal arg ument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 decisio n, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The appellant is a GS-0895 -15 Supervisory CBPO (Program Manager) with
the agency’s U.S. Customs and Border Protection (CBP). Initial Appeal File
(IAF), Tab 5 at 21. From January 30, 2000, to July 24, 2004, the appellant
worked as a Customs Inspector with the U.S. Customs Service, a position in the
GS-1890 job series. IAF, Tab 12 at 44-46. On July 25, 2004, he was reassigned
to a CBPO position with CBP, and he has held several CBPO and Supervisory
CBPO positions since then. Id. at 12-44.
¶3 By letter dated October 26, 2015, a Supervisory Human Resources
Specialist (HRS) with CBP’s Minnesota Hiring Center notified the appellant that
his personnel records had been incorrectly coded since April 1, 2007, to indicate
he had law enforcement officer (LEO) retirement coverage or enhanced CBPO
retirement coverage when, in fact, he was covered under the Federal Empl oyees’
Retirement System . IAF, Tab 5 at 37 -38. The HRS informed the appellant that
the Hiring Center had adjusted h is records to correct the error effective July 12,
3
2015. Id. The appellant filed an administrative grievance with the agency,
seeking enh anced CBPO retirement benefits . Id. at 25-36. The agency issued a
decision denying the appellant’s request . Id. at 13-20.
¶4 The appellant filed a Board appeal challenging the agency’s decision. IAF,
Tab 1. The administrative judge issued an initial decision that affirmed the
agency’s decision , finding that the appellant failed to show that he is entitled to
enhanced CBPO retirement benefits . IAF, Tab 21, Initial Decision (ID) at 6.2
The appellant has filed a petition for review of the initial decision and t he agency
has filed a response in opposition to the petition. Petition for Review (PFR) File,
Tabs 1, 3.3
2 On the first page of the initial decision, the administrative judge mistakenly states that
the appellant is seeking law enforcement retirement service credit, rather than enhanced
CBPO retirement b enefits, and that she is affirming the agency’s decision to deny the
appellant such credit. ID at 1. These errors provide no basis to reverse the initial
decision, however, as the rest of the decision shows that the administrative judge
properly consider ed the appellant’s eligibility for enhanced CBPO retirement benefits
and affirmed the agency’s decision finding the appellant ineligible for those benefits.
ID at 2 -6; 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 fo r reversing an initial decision ).
3 With his petition for review, the appellant submits two Standard Form (SF) 50s dated
June 17, 2012. PFR File, Tab 1 at 9 -10. These documents are already part of the record
below and thus are not new. Compare id., with IAF, Tab 12 at 18, 20. See Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (stating that evidence that is
already part of the recor d is not new). Therefore, the Board need not consider these
documents. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980).
On review, t he appellant also asks the Board to consider the two personnel actions that
were documented in these SF -50s, but were not included in the list of his positions set
forth in the initial decision: his appointment to a GS -12 Supervisory CBPO
(Enforcement) po sition and his promotion to a GS -13 Supervisory CBPO (CDI). PFR
File, Tab 1 at 6 -7; ID at 2 -3. We have considered these personnel actions and find that
they provide no basis for disturbing the initial decision.
4
ANALYSIS
¶5 Federal civil service retirement laws provide enhanced retirement coverage
to persons who serve in physically rigorous positions, such as LEOs and
firefighters. Section 535 of the Consolidated Appropriations Act of 2008 (CAA) ,
Pub. L. No. 110 -161, div. E, title V, § 535(b)(1)(C), 121 Stat. 1844, 2076 (2007)
(codified at 5 U.S.C. § 8401 (36)) extends these benefits to CBPOs. Because
enhanced benefits are more costly and may result in the untimely retirement of
valuable employees, the eligibility rules governing coverage for the benefits are
strictly constru ed. See Kroll v. Department of Homeland Security , 121 M.S.P.R.
526, ¶ 6 (2014). An employee seeking enhanced retiremen t benefits bears the
burden of proving h is entitlement thereto by preponderant evidence. Id. (citing
Olszak v. Department of Homeland Security , 117 M.S.P.R. 75, ¶ 5 (2011), aff’d
per curiam , 475 F. App’x 757 (Fed. Cir. 2012)) .
¶6 An employee’s service in both “primary” and “secondary” positions may
count toward his eligibility for enhanced CBPO retirement coverage. 5 C.F.R.
§§ 842.1002 , 842.1003. Under the eligibility rules, a primary covered position is
a position in the CBPO ( GS-1895 ) job series or any successor position, the duties
of which inc lude activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry.4 5 U.S.C. § 8401 (36); see
4 For periods of service before September 1 , 2007, Office of Personnel Management
regulations define a primary covered position as:
(i) A position whose duties included the performance of work directly
connected with activities relating to the arrival and departure of persons,
conveyances, and merc handise at ports of entry that was classified within
the Immigration Inspector Series (GS -1816), Customs Inspector Series
(GS-1890), Canine Enforcement Officer Series (GS -1801), or any other
series which the agency head determines were predecessor series t o the
Customs and Border Protection Series (GS -1895), and that would have
been classified under the GS -1895 series had it then existed; and
(ii) A position within the Customs and Border Protection Series
(GS-1895) whose duties included the performance of work directly
5
5 C.F.R. § 842.1002 . A secondary covered position is a position in the
Department of Homeland Security that is either supervisory or administrative.
5 C.F.R. § 842.1002 .
¶7 To be eligible for enhanced CBPO retirement coverage, an employee must
occupy a primary cover ed position , or have transferred directly to a secondary
covered position with the agency without a break in service of more than 3 days,
after occupying a primary covered position for at least 3 years. See 5 U.S.C.
§ 8401 (36). Thus, employees occupying secondary covered positions are only
eligible for enhanced CBPO retirement coverage if they transferred directly
(without a break in service of more than 3 days) from a primary covered position
and completed 3 years of service in a primary position . 5 C.F.R.
§ 842.1003 (b)(1) -(2).
¶8 The appellant served in CBPO primary covered positions from January 30,
2000, until July 22, 2006, and from April 1, 2007, until March 29, 2008 . IAF,
Tab 12 at 40-46. On March 30, 2008, the appellant transferred to a position that
was eligible for law enforc ement officer (LEO) special retirement coverage as a
secondary position , not enhanced CBPO retirement coverage . Id. at 38 -39. He
transferred from that position to a CBPO secondary covered position on
September 14, 2008, and has held various CBPO secondar y covered positions
since then, including his current position. Id. at 12-37.
¶9 Based on the eligibility rules set forth above, the administrative judge found
that, although it is undisputed that the appellant had the requisite amount of
primary covered service, he is ineligible for enhanced CBPO retirement coverage
because he did not transfer directly from a CBPO primary covered position to a
CBPO secondary covered position as required by statute. ID at 4-5. The
connected with activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry.
5 C.F.R. § 842.1003 (c)(1).
6
administrative judge considered the appellant’s argument that denying him CBPO
retirement coverage is un just, given all of the positions he has held that offer
enhanced retirement benefits and the agency’s error in placing him in the wrong
retirement system until 2015 . ID at 5. The administrative judge explained that ,
although she understood the appellant’s frustration, neither the agency nor the
Board can provide benefits when an appellant is not statutorily entitled to them.
Id. The administrative judge added that, becaus e the appellant is not statutorily
entitled to CBPO enhanced retirement benefits , she could not provide an equitable
remedy, as t he G overnment cannot be estopped from denying benefits when the
individual does not meet the statutory requirements for that be nefit. ID at 6
(citing Office of Personnel Management v. Richmond , 496 U.S. 414 , 416, 434
(1990) ).
¶10 On review, the appellant reiterates his assertion that h e accepted the
Supervi sory CBPO (Enforcement) position —i.e., the LEO secondary covered
position that he occupied from March 30 through September 13, 200 8—because
the vacancy announcement for the position stated that the selectee would serve as
a secondary LEO , thereby clearly indicating that he would be eligible for LEO
retirement coverage upon acceptance of the position. PFR File, Tab 1 at 5; IAF,
Tab 17 at 6 -7, 17 . He contends that he should be allowed to revoke his
acceptance of the LEO secondary covered position because he would not have
accepted the position if it did not include special retirement coverage . PFR File,
Tab 1 at 5.
¶11 This argument is unavailing. As the administrative judge explained in the
initial decision, serving in a position does not mean that an employee will
eventually receive the type of retirement associated with the position. ID at 5.
Thus, it was not reasonable for the appellant to assume that he would be eligible
for LEO special retirement coverage upon accepting the Supervisory CBPO
(Enfo rcement) position. Moreover, LEO and CBPO service are not
interchangeable and service under one enhanced retirement system is not
7
creditable under the other system . IAF, Tab 17 at 13 ( division E, title V,
§ 535(e)(5) of the CAA ).
¶12 We also find unpersuasiv e the appellant’s argument on review that he is
entitled to enhanced CBPO retirement benefits because the agency stat ed in its
January 17, 2 014 letter notifying him of his selection for a GS-14 Program
Manager ( Watch Commander ) position that his retirement coverage in that
position would be “ Secondary CBPO Enhanced ,” and he accepted the position
based on this statement .5 PFR File, Tab 1 at 6 ; IAF, Tab 17 at 23. Regardless of
whether the appellant accepted th at position, he would have been ineligible for
enhanced CBPO retirement benefits because h e did not transfer directly from a
CBPO primary covered position to a CBPO secondary covered position in 2008 .
Thus, even if the appellant accepted the Program Manager ( Watch Commander )
position base d on the erroneous information in the selection letter concerning his
retirement coverage, his reliance on th at mis information did not inure to his
detriment.
¶13 Therefore, based upon our review of the record, we find that the
administrative judge correctly found that the appellant is ineligible for enhanced
CBPO retirement benefits.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
5 In his petition for review, the appellant incorrectly identifies the date of the agency’s
letter as December 3, 2014, and the type of retirement coverage described in th e letter
as “Enhanced CBP Officer .” PFR File, Tab 1 at 6.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
9
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 before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations 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 t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a pro hibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision th at provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to 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 Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney 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 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/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STUART_CHRISTOPHER_PH_0841_16_0442_I_1_FINAL_ORDER_2051499.pdf | 2023-07-19 | null | PH-0841 | NP |
2,883 | https://www.mspb.gov/decisions/nonprecedential/SMITH_WHITE_GRACIE_V_DC_831M_16_0202_I_1_FINAL_ORDER_2050810.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GRACIE V. SMITH -WHITE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-831M -16-0202 -I-1
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gracie V. Smith -White , Greenbelt, Maryland, pro se.
Karla W. Yeakle , 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
denied the appeal of he r annuity benefit reduction . 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
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
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, sect ion 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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 retired from the Departme nt of Health and Human Services
on March 3, 2005, and at the time of her retirement , she elected not to make a
deposit for her post -1956 military service. Initial Appeal File (IAF ), Tab 8
at 17-24, 35 -37. On November 1 6, 2015 , the Office of Personnel Management
(OPM) issued a final decision informing the appellant that, because she had now
reached the age of 62 and was eligible for Social Security benefits, it had
recalculated her annuity to remove credit for her post-1956 military service. IAF,
Tab 8 at 6-7.
¶3 Following receipt of OPM ’s final decision, the appellant timely filed an
appeal seeking to challenge the recalculation . IAF, Tab 1. Because the appellant
did not request a hearing, id. at 1, the administrative judge issued a close of
record order and set a date for a close of record conference , IAF, Tab 3. OPM
failed to appear for the initial close of record conference, but the appellant failed
to appear for the rescheduled close of record con ference and failed to contact the
administrative judge , as she was repeatedly ordered to do regarding rescheduling
the close of record conference. IAF, Tabs 5, 10 -13. Based on the appellant’s
3
failure to comply with multiple orders, the administrative jud ge imposed the
sanction of canceling the close of record conference and issuing the initial
decision based on the written record. IAF, Tab 14. Before issuing the initial
decision, t he administrative judge afforded the parties an opportunity to make
addit ional submissions , but neither party took advantage of that opportunity. Id.
¶4 In the initial decision, the administrative judge found that the appellant was
provided with the necessary information regarding her need to make a deposit to
obtain credit for her post -1956 military service , and of the consequences of
failing to make the deposit . IAF, Tab 15, Initial Decision ( ID) at 5-8. Further,
the administrative judge found that the appellant failed to show that OPM
committed an administrative error in pr ocessing her retirement application , and
that she offered no evidence to support her unsworn claim that she provided OPM
with the required deposit at the time of her retirement. ID at 6 -7. Accordingly,
the administrative judge affirmed OP M’s final decisi on. ID at 1, 8.
¶5 The appellant has filed a petition for review .2 Petit ion for Review (PFR)
File, Tab 1. OPM has filed a response . PFR File , Tab 6 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 On review , the appellant alleges that her employing agency ’s Human
Resources D epartment and OPM completed her retirement application for her and
provided her with incorrect information about her annuity. PFR File, Tab 1 at 3.
She also asserts that the recalculation has resulted in financial hardship. Id.
2 The appellant ’s petition for review was untimely filed on January 16, 2017, over
8 month s after the May 11, 2016 filing deadline. ID at 8; Petition for Review (PFR)
File, Tab 1. In a motion to waive the time limit, the appellant asserts that good cause
exists for her untimely filing because she was forced to leave her home for a period of
time due to a sewage spill , and all of her documents related to this appeal were boxed
up during that time . PFR File, Tab 4 at 1 -3; see 5 U.S.C. § 7701 (e)(1)(A); 5 C.F.R.
§ 1201.114 (e). In light of our disposition in t his appeal, we do not reach the issue of
the timeliness of the appellant ’s petition for review. See Dean v. U.S. Postal Service ,
115 M.S.P.R. 56 , ¶ 13 n.5 (2010).
4
¶7 A retiring civ il service annuitant is entitled to receive credit for active duty
military service performed after 1956 under both the Civil Service Retirement
System (CSRS) and the Social Security System, but only if the annuitant deposits
with the Civil Service Retirem ent Fund an amount equal to 7% of the person ’s
total post -1956 military pay before their separation from the service upon which
her entitlement to an annuity is based . McCrary v. Office of Personnel
Management , 459 F.3d 1344 , 1347 (Fed. Cir. 2006); see 5 U.S.C. § 8334 (j);
5 C.F.R. § 831.2104 (a). If the deposit is not made before separation, OPM is
required to recalculate the employee ’s annuity to exclude credit for post -1956
military service when the individual first becomes eligible for Social Security
benefits, i.e., as of the first day of the month in which she becomes 62 years of
age. 5 U.S.C. § 8332 (j)(1) ; see McCrary , 459 F.3d at 1347 .
¶8 When an employee did not make or complete the required deposit before
separation due to an administrative error, she may be able to make the deposit in
a lump sum payment within a time set by OPM. 5 C.F.R. § 831.2107 (a)(1). The
Board may find administrati ve error and waive the deposit deadline when: (1) the
appellant shows that she relied on misinformation in el ecting not to make the
deposit; (2) an application package contains obvious errors or internal
inconsistencies in which OPM or the employing agenc y has an obligation to
investigate and resolve before processing the application; or (3) an employee
elected to make the deposit and the paperwork is in order, but neither the
employing agency nor OPM followed through to ensure the deposit was made.
McDev itt v. Office of Personnel Management , 118 M.S.P.R. 204 , ¶ 7 (2012).
¶9 OPM ’s provided evidence included the retirement application in structions
given to the appellant prior to her separation. IAF, Tab 8 at 13 -16. Those
instructions specify that failure to make a deposit for post -1956 military service
would result in the benefit reduc tion now being appealed. Id. at 16. In addition
to the instructions, the appellant ’s retirement application, Standard Form 2801
(SF-2801) , included the following question:
5
If any of your military service occurred on or after January 1,
1957, have you paid a deposit to your agency for this service?
(You m ust pay this deposit to your agency before separation.
You cannot pay OPM after you retire.)
Id. at 18. The appellant answered “No” to that question and signed the form. Id.
Further, the provided “Agency Checklist ” of retirement procedures, signed b y a
Human Resources Specialist at the appellant’s employing agency, also has the
box checked indicating that the appellant was counseled about the effects of her
decision not to make a post -1956 military service deposit . Id. at 23-24.3 Finally,
OPM ’s Form 1 515 includes instructions explaining the consequences of failing to
make the 7% post -1956 military service deposit. Id. at 36-37. T he appellant
checked the box on this form indicating that she did not want to make the deposit
and she understood that such decision was irrevocable , and signed that form on
March 24, 2005 . Id. at 34-35.
¶10 The Board has found that the provided 1990 version of the SF-2801 , which
asks whether the retirement applicant submitted a deposit for post -1956 military
servic e, is clearly worded . King v. Office of Personnel Management , 97 M.S.P.R.
307, ¶ 25 (2004) , aff’d sub nom. Grant v. Office of Personnel Management ,
126 F. App’x 945 (Fed. Cir. 2005) . Additionally, the instructions plainly explain
that an individual will receive credit for post -1956 military service after
becoming eligible for Social Security benefits only if she makes a deposit before
leaving Federal service, while failure to pay the deposit will result in elimination
of CSRS credit for the post -1956 military service when she becomes eligible for
Social Security benefits. IAF, Tab 8 at 13 -16. Accordingly, the appellant was
prop erly apprised of her opportunity to make a deposit for her post-1956 military
3 Although the Agency Checklist includes a section for the employing agency’s Payroll
Officer to certify a number of answers related to the appellant’s retirement application ,
it does not appear that the Payroll Officer signed off on that checkli st. IAF, Tab 8
at 24. However, because it is clear that the appellant was counseled by her employing
agency’s Human Resources Specialist regarding the consequences of failing to make a
post-1956 military service deposit, id. at 23, we attribute no significance to the absence
of the Payroll Officer’s certification.
6
service prior to separation and instructed of the consequences of not doing so.
King , 97 M.S.P.R. 307 , ¶¶ 7, 25; Drury v. Office of Personnel Management ,
79 M.S.P.R. 493 , ¶¶ 12-13 (1998 ).
¶11 The appellant compl eted the SF -2801 and the Form 1515 and signed both
documents . IAF, Tab 8 at 17-24, 35 -37. Her unsworn statement in her petition
for review alleging that the agency completed the paperwork for her fails to
outweigh OPM ’s documentary evidence, includi ng the signed SF -2801 and
Form 1515. PFR File, Tab 1 at 3; see Rint v. Office of Personnel Management ,
48 M.S.P.R. 69 , 72 (finding that normal office records, compiled in the ordinary
course of business, are admissible and entitled to substantial weight), aff’d ,
950 F.2d 731 (Fed. Cir. 1991) (Table). Therefore, we deny the petition for
review and affirm th e initial decision, upholding OPM ’s reduction of the
appellant ’s annuity benefits .
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 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.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
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
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.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. Th e All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 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 | SMITH_WHITE_GRACIE_V_DC_831M_16_0202_I_1_FINAL_ORDER_2050810.pdf | 2023-07-18 | null | DC-831M | NP |
2,884 | https://www.mspb.gov/decisions/nonprecedential/STAWNICZY_CHRISTINE_NY_0845_16_0276_I_1_FINAL_ORDER_2050817.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTINE STAWNICZY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-0845 -16-0276 -I-1
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christine Stawniczy , Bayshore, New York, 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
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) finding that she had been overpaid Federal Employees’ Retirement System
(FERS) disability retirement benefits and denying her request f or a waiver of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
collection of the overpayment . 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
interpretat ion 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 abu se of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED by this Final Order to find that the appellant was without fault in
creating the overpayment , we AFFIRM the initial decision.
BACKGROU ND
¶2 The appellant has appealed OPM’s reconsideration decision finding that she
received an overpayment of disability retirement benefits under FERS and she
was not entitled to a waiver of the over payment . Initial Appeal File (IAF), Tab 1 ,
Tab 9 at 7 -11. The appellant applied for disability retirement on December 29,
2005 , at age 54 with approximately 15 years of Federal service. IAF, Tab 9
at 85-87. On May 17, 2006, OPM notified her by letter that it had approved her
retirement application. Id. at 96 -98. The letter stated that the appellant would
have to confirm with OPM that she had applied for Social Security disability
benefits and that, if the Social Security Administration (SSA) grant ed such
benefits, she would have to immediately notify OPM of the amount and the
effec tive date of the monthly payments . Id. at 96 -97. The letter also explained
the formula for the recomputation of the appellant’s FERS disability annuity once
3
she started to receive Social Security benefits and informed her that she sh ould
refrain from negotiating Social Security checks until her FERS benefit had been
reduced, as the checks would be needed to reimburse OPM for any overpayments
she received prior to the recomputation of her FERS annuity. Id. at 97.
¶3 The appellant assert ed that she originally sought Social Security disability
benefits in 2006, as OPM instructed, but her application was denied. IAF, Tab 9
at 7, 99; see also Petition fo r Review (PFR) File, Tab 1 at 3.2 On July 30, 2006,
OPM finalized the appellant’s FERS disability annuity with no reduction for
Social Security benefits because she had not yet started receiving such benefits.
IAF, Tab 9 at 99. OPM advised her that, if she were to receive Social Securi ty
benefits in the future, she would have to inform OPM of that fact and she should
hold any retroa ctive payment received from SSA to repay OPM for the duplicate
benefits she had received. Id. The July 30, 2006 letter included instructions for
informing OPM if and when she started to receive Social Security benefits. Id.
at 99-100.
¶4 On March 14, 2010, SSA notified the appellant that she would receive
monthly disability benefits of $1 ,412.00 effective May 2008 and that she would
soon receive a retroactive payment of $20,888.50 for the period of May 2008
through February 2010. Id. at 101 -06. The appellant asserted that, on March 18,
2010, she mailed OPM a copy of SSA ’s award notice, and she called OPM several
times to follow up over the next few months . Id. at 18. She also emailed OPM
on August 12, 2010, to ascertain if th at agency had reviewed her award notice
from SSA. Id. at 25 -28. On September 16, 2010, OPM sent the appellant an
email message stating that her case was in its Washington , D.C. office for review
and a response would be forthcoming. Id. at 28. The appellant maintained that
2 The appella nt accurately points out in her petition for review that any mention of her
2006 application for Social Security benefits had been omitted from the initial decision.
PFR File, Tab 1 at 3; IAF, Tab 36 at 4 -6. We correct th at omission here.
4
she heard nothing more from OPM until she received the September 21, 2013
notice of overpayment. Id. at 18.
¶5 The notice of overpayment states that the appellant was overpaid
$53,970.0 0 for the period of May 1, 2008 , through August 30, 2013. Id. at 63 -67.
The notice also states that OPM would collect the full amount of the overpayment
from her annuity in 294 monthly installments of $183.16 and a final installment
of $120.96. Id. On October 15, 2013, the appellant requested that OPM waive
collection of the overpayment. Id. at 18. In her request, s he stated that a ny
decrease in her annuity would cause her great financial hardship. Id. The
appellant completed a Financial Resources Questionnaire (FRQ) at this time. Id.
at 19 -21. The October 15, 2013 FRQ states that the appellant’s total monthly
income was $2,383.00 and her total monthly expenses were $2,603.00. Id. at 19.
¶6 On June 16, 2016, OPM requ ested updated information from the appellant
regarding he r financial circumstances and gave her a new blank FRQ form to
complete. Id. at 15. On June 29, 2016, the appella nt submitted an updated FRQ ,
which showed her total monthly income as $2,764.00 and her monthly expenses
as $2,744.24 . Id. at 12 -14. A gain , she requested waiver of collection of the
overpayment. Id. at 14. She stated that she was not at fault in creating the
overpayment, had difficulty meet ing her other monthly obligations, and suffer ed
from mobility problems caused by her knees. Id.
¶7 OPM rendered its reconsideration decision on August 8, 2016, affirming its
initial decision. Id. at 7-11. OPM denied the appellant ’s request for waiver of
the collection of the overpayment and found tha t collection at the scheduled rate
of repayment would not cause her a financial hardship . Id. at 10. In doing so,
OPM examined the appellant’s claimed expenses and found that some of them did
not meet the ordinary and necessary criteria based on a standa rd of
reasonableness , including purchases and repairs that were infrequently made or
unlikely to recur during the period of recovery. Id. OPM retained the existing
5
collection schedule of 294 monthly installments of $183.16 with a final
installment of $120.96. Id. This appeal followed. IAF, Tab 1.
¶8 The administrative judge held a hearing at the appellant’s request. IAF,
Tab 25. The administrative judge found that OPM proved the existence and
amount of the overpayment and that the appellant was not entitled to a waiver of
the collection of the overpayment, i.e., she knew of her obligation to set aside the
SSA payments, but she failed to do so, and there were no exceptional
circumstances precluding OPM’s recovery of the overpaym ent. IAF, Tab 36,
Initial Decision (ID) at 7 -8. She further found that the appellant was not entitled
to an adjustment in the recovery schedule. ID at 8 -10. The administrative judge
specifically pointed out that, during the course of the appeal, the ap pellant sold
her home and moved in with one of her daughters. ID at 9. Although the
appellant paid her daughter $450 to $500 per month in rent, the move had reduced
her monthly expenses from $2,744.24 to $1,979.97 because she was no longer
paying a mortg age, utilities, or household maintenance expenses. ID at 9-10.
Additionally, the sale of her home left the appellant with liquid assets, including
balances of $80,058.09 in a savings account, $4,001.75 in a checking account,
and $1,205.63 in another chec king account. ID at 9. The administrative judge
thus found OPM’s collection schedule to be reasonable. ID at 10. Should the
appellant’s expenses increase in the future, t he administrative judge noted, s he
could ask OPM to lower her payments or to compr omise, suspend payment of, or
write off the debt. Id. The appellant has filed a petition for review. PFR File,
Tab 1.
ANALYSIS
¶9 We have considered the appellant’s arguments and find that the
administrative judge reached the correct conclusions in this ca se. A waiver of the
collection of an annuity overpayment may be granted when the annuitant is
without fault and recovery would be against equity and good conscience.
6
5 U.S.C. § 8470 (b); 5 C.F.R. § 845.301 . At the outset, we find that the
administrative judge made no direct finding as to whether the appellant was
without fault in her assess ment of whether the appellant was entitled to a waiver
of collection of the overpayment .3 A recipient of an overpayment is without fault
if she performed no act of commission or omission that resulted in the
overpayment. 5 C.F.R. § 845.302. One of the pertinent considerations when
considering whether the recipient of an overpayment is at fault is whether “she
accepted a payment that . . . she knew or should have known to be erroneous.”
5 C.F.R. § 845.302 (a)(3) . However, even an individual who accepts a n
overpayment will automatically be found without fault , regardless of whether she
knew or should have known that the payment was erroneous , if she notified OPM
within 60 days of recei ving the overpayment. Gulan v. Office of Personnel
Management , 86 M.S.P.R. 16, ¶ 8 (2000). Here, the appellant contacted OPM
within 4 days after she received her SSA award notice and periodically
recontacted OPM until an initial decision was issued. IAF, Tab 9 at 18, 25 -28.
We thus find that the appellant was without fault. The remaining issu e, therefore,
is whether she proved by substantial evidence4 that recovery of the overpayment
is against equity and good conscience. See 5 U.S.C. § 8470 (b); Hunter v. Office
of Personnel Managemen t, 109 M.S.P.R. 514 , ¶ 11 (2008) , aff’d , 2009 WL
174169 (Fed. Cir. Jan. 27, 2009) ; 5 C.F.R. §§ 845.301 , 1201.56(b)(2)(ii) .
¶10 On review, the appellant reasserts her argument that OPM should waive
collection of the overpayment because the agency “did not respond in a timel y
manner which caused additional overpayment from March 22, 2010 [,] thr[ough]
August 30, 2013.” PFR File, Tab 1 at 1. She asserts that she timely filed all
3 Without making an explicit finding, OPM’s reconsideration decision implied that the
appellant was at fault. IAF, Tab 9 at 9 -10.
4 Substantial evidence is the degree of relevant evidence that a reaso nable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4 (p).
7
required documents with OPM, including the March 14, 2010 SSA award notice ,
but OPM “grossly negle cted the handling of [her] case.” Id. She argues that
OPM caused an exceptionally lengthy delay in adjustin g her annuity, failed to
reply within a reasonable length of time in response to her inquiries regarding
overpayment, failed to act expeditiously t o adjust her annuity in the face of
specific notice, and was otherwise grossly negligent in the handling of her case.
Id. For these reasons, she asserts, she is entitled to a waiver.5
¶11 The appellant’s a rgument s are unavailing. Generally, recovery is against
equity and good conscience in the following circumstances: (1) it would cause
financial hardship ; (2) the annuitant can show that, because of the overpayment,
she relinquished a valuable right or changed positions for the wo rse; or
(3) recovery could be unconscionable under the circumstances. Zucker v. Office
of Personnel Management , 114 M.S.P.R. 288 , ¶ 7 (2010) ; 5 C.F.R. § 845.303 .
Individuals who know or suspect that they are receiving overpayments , however,
are expected to set aside the amount overpaid pending recoupment . Zucker ,
114 M.S.P.R. 288 , ¶ 7. Absent exceptional circumstances, i.e., where collection
would be unconscionable, recovery in these cases is not against equity and good
conscience. Id.
¶12 The standard for finding collection to be unconscionab le is high. Boone v.
Office of Personnel Management , 119 M.S.P.R. 53 , ¶ 9 (2012 ) (citing Spinella v.
Office of Personnel Management , 109 M.S.P.R. 185 , ¶ 7 (2008); Aguon v. Office
of Personnel Management , 42 M.S.P.R. 540 , 549 (1989) ). Because
5 The appellant appended three documents to her petition for review. PFR File, Tab 1
at 4-6. Copies of t wo of these documents are already contained in the record of this
appeal . Id. at 5-6; IAF, Tab 10, Items 3, 7 . The third document, dated September 21 ,
2013, shows OPM’s computation of the amount of the annuity overpayment . PFR File,
Tab 1 at 4. A similar worksheet, dated August 19, 2016, is already in the record. IAF,
Tab 9 at 68. None of these documents contain information of sufficient weight to
change the outcome. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980)
(holding that the Board will not grant a petition for review ba sed on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different from
that of the initial decision) ; 5 C.F.R. § 1201.115 (a)(1) .
8
unconscionability is generally defined in terms of broad, equitable considerations,
the Board will consider all relevant factors using a “totality -of-the-
circumstances” approach to determine whether recovery of an annuity
overpayment is unconscionable in a given case. Id. Such circum stances may
include, for example, the following: (1) t here has been an exceptionally lengthy
delay by OPM in adjusting an annuity; (2) OPM failed to respond within a
reasonable length of time to an annuitant ’s inquiries regarding an overpayment;
(3) OPM f ailed to act expeditiously to adjust an annuity in the face of sp ecific
notice; and/or (4) OPM is otherwise grossly negligent in handling the case.
Aguon , 42 M.S.P.R. at 550. The Board also will consider general principles of
equity and fairness , such a s mi sinformation given to the annuitant or the
annuitant’s personal limitations such as lack of education, physical or mental
disability, or other factors that would make the collection of an overpayment
manifestly unfair. Id. Exceptional circumstances , however, do not include
financial hardship when an annuitant was required to set the overpayment aside .
Zucker , 114 M.S.P.R. 288 , ¶¶ 6-8.
¶13 Here, t he delay between the appellant’s notice of her SSA award and OPM’s
finalization of her annuity was 3 years and 6 months. The delay between he r
request for waiver and OPM’s reconsideration decision was 2 years and
10 months.6 The appellant, however, had received advance notice from OPM
warning her that an overpayment w ould be possible in the event she started to
receive Social Security benefits. IAF, Tab 9 at 99. OPM instructed her to set
aside the amount overpaid pending recoupment . Id. at 97, 99. The appellant also
6 The appellant argued before the administrative judge that collection of her debt was
barred by the statute of limitations. On review, she argues that the administrative judge
never apprised her of the applica ble statute of limitation s that would bar coll ection of
her debt . PFR File, Tab 1 at 2. That is not the case. The administrative judge apprised
the appellant of the applicable time limitations for the collection of overpayment debts ,
IAF, Tab 13 at 3, 5, and she later ruled that such limitations wo uld not apply in this
case, IAF, Tab 21.
9
likely believed that she was receiving an overpayment because she contacted
OPM several times to request information about her overpayment status. Id.
at 18, 25, 28. However, s he simply did not set aside funds to apply to the
overpayment as she had been instructed. Id. at 14 , 21.
¶14 Although OPM’s delays here have been somewhat lengthy , they would not
trigger OPM’s Delay -in-Response Rule , wherein recovery would be deemed
inequitable automatically because OPM failed to issue a waiver or reconsideration
decision within 4 years of a without -fault debtor’s request for one . Newcomb v.
Office of Personnel Management , 42 M.S.P.R. 552, 558 (1989). OPM issued its
reconsideration decision less than 3 years after the appellant’s October 15, 2013
request for a waiver . IAF, Tab 9 at 7-11, 17-18. During th e delay , moreover,
OPM communicat ed with the appel lant, e.g., OPM asked her to update her FRQ.
Id. at 12 -15. The appellant has offered no evidence of gross or egregious errors
or other exceptional circumstances in her case. Cf., e.g., Gordon v. Office of
Personnel Management , 689 F. App’x 977, 984 -88 (Fed. Cir. 2017) (finding that
repayment was unconscionable and against equity and good conscience when the
annuitant was without fault, OPM delayed finalizing calculations for his annuity
for 3 years, followed by a nearly 4 -year in responding to his recon sideration
request , and the delays affected his qualification for benefits from local and state
agencies, and the Veterans Administration for which he would have likely
qualified absent the overpayment) .7 Although the appellant described medical
limitatio ns in her 2016 FRQ, including knee problems that require her to use a
walker, she has not submitte d any evidence that her condition would increase her
living costs or otherwise affect her ability to repay the debt. IAF, Tab 9 at 14 .
¶15 The appellant asserts that the administrative judge gave too much
consideration to the fact she had sold her home and too little consideration to her
7 The Board may follow unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds the reasoning per suasive . See Herring v.
Department of the Navy , 90 M.S.P.R. 165, ¶ 13 n.* (200 1).
10
indebtedness and medical problems. PFR File, Tab 1 at 1 -2. We find n either of
these arguments to be persuasive. OPM r egulations require us to consider an
annuitant’s current a bility to repay the overpayment , rather than just her net
worth. Fusco v. Office of Personnel Management , 42 M.S.P.R. 501 , 505 (1989).
Financial hardship may be deemed to exist in, but is not limited to, those
situations when the annuitant needs substantially all of her current income and
liquid assets to meet current ordinary and nec essary living expenses and
liabilities. 5 C.F.R. § 845.304 . The Board considers liquid assets to be those
assets that are readily convertible into cash with little or no loss of value, such as
cash on hand, checking accounts, savings accounts, certificates of deposit, mutual
funds, and marketable securities. Fusco, 42 M.S.P.R. at 506 & n.5. Nonliquid
assets include retirement accounts, id., though real property also would be
challenging to convert into cash with little or no loss of value. Nonliquid assets
generally should not be considered as available for re covery. Id.; see, e.g. ,
Martin v. Office of Personnel Management , 49 M.S.P.R. 134 , 138 (1991)
(classifying the appellant’s cash and mut ual funds to be liquid assets available for
recovery and his partnerships, insurance, and trust to be nonliquid ass ets
unavailable for recovery) , aff’d , 960 F.2d 156 (Fed. Cir. 1992) .
¶16 Here, t he appellant’s sale of her home converted a nonliquid asset to
collectible liquid assets considerably in excess of the amount OPM considers
unavailable for debt repayment, while at the same time reducing her mont hly
expenses by $764.27. ID at 9 -10. When the appellant’s current ordinary and
necessary living expenses of $1,979.97 are subtracted from her current income of
$2,764.00 , the appellant is left with a monthly surplus of $784.03 . ID at 10 .
Even after OPM deducts a monthly payment of $183.16, her monthly surplus is
$600.87. Id. In these circumstances, the record does not show that t he appellant
needs substantially all of her current income and liquid assets exceeding $85,000
to meet her current ordinary and necessary living expenses. Cf., e.g. , Martin ,
49 M.S.P.R. at 138-39 (finding that, although the appellant had a negative
11
monthly balance of $21.62 , there was no evidence in the record that he needed al l
of his $41,200 in liquid assets to meet his current ordinary and necessary living
expenses) .
¶17 As for the appellant’s allegation that the administrative judge failed to
consider the personal information she listed on the 2016 FRQ, it is true that the
administrative judge did not mention h er knee problems described in Section X .
IAF, Tab 9 at 14. Nevertheless , the appellant has not offer ed medical or other
evidence that would show these problems increased her monthly expenses. Cf.,
e.g., Boone , 119 M.S.P.R. 53 , ¶ 10 (rejecting an appellant’s argument that
collection would be unconscionable given her medical condition in part be cause
she “provided limited medical evidence below and no such evidence on review”).8
¶18 The appellant also argues that OPM reduced the number of payment s to
99 monthly installments of $183.16 in its reconsideration letter and that the initial
decision does n ot reflect this reduction. PFR File, Tab 1 at 2. Her assertion is
incorrect. The reconsideration letter shows 294 monthly payments of $183.16,
and a final installment of $120.96 . IAF, Tab 9 at 10. Accordingly , we find that
the appellant’s argument s on review are unpersuasive.9 She has failed to show
that the administrative judge erred in finding that there were no exceptional
circumstances precluding OPM’s recovery of the overpayment and that she was
not entitled to an adjustment in the recovery sched ule.10 We thus affirm the
initial decision.11
8 The appellant also asserts that the sum of her income on the 2016 FRQ includes the
amount she was being overpaid. PFR File, Tab 1 at 3. She has not offered any
evidence proving th at assertion to be accurate.
9 Although at one point it appeared that the parties’ may have reached a settlement
agreement that would resolve her appeal, the appellant subsequently elected to move
forward with the adjudication of her appeal. IAF, Tabs 18, 21.
10 After the close of the record on review, the appellant filed an add itional pleading,
asserting that OPM deducted a repayment installment from her June 2017 annuity
paymen t, despite the fact that her appeal wa s still pending before the Board. PFR File,
Tab 5. She explains that she notified OPM of the error . Id. The app ellant has not
12
NOTICE OF APPEAL RIGHTS12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appro priate
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 immediate ly review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
explained how such a deduction is a basis for disturbing the initial decision . OPM
corrected a similar error when this appeal was pending before the administrative judge.
IAF, Tab 33, Tab 34 at 2.
11 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other credit ors
in accordance with 31 U.S.C. § 3713 (b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103 , ¶ 13 (2016).
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisio ns. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc. uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an app eal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neithe r endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed tha t you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
14
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition , you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Fede ral Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
15
Office of Federal Operations
Equal Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court o f Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for a n appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board n either 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 li nk below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STAWNICZY_CHRISTINE_NY_0845_16_0276_I_1_FINAL_ORDER_2050817.pdf | 2023-07-18 | null | NY-0845 | NP |
2,885 | https://www.mspb.gov/decisions/nonprecedential/MILLER_JIMMIE_L_AT_3330_15_0721_I_1_FINAL_ORDER_2050823.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JIMMIE L. MILLER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-3330 -15-0721 -I-1
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jimmie L. Miller , Memphis, Tennessee, pro se.
Bradley Flippin , Esquire, Nashville, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petit ion for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) . Generally, we grant petitions such as this
one only in the following circumstances: the initial decisio n 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
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
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 cou rse of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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 is a preference -eligible veteran who, since October 7, 2012,
has held a GS-0640 -03 Health Aid position with the agency’s V eterans Affairs
(VA) Medical Center in Memphis, Tennessee. Initial Appeal File (IAF), Tab 5
at 6-7, Tab 6, Subtab 2h.2 The appellant applied for the GS -0621 -05 Certified
Nursing Assistant (CNA) position under Job Announcement N umber RZ -14-JF-
1208427 -BU, which the agency held open from September 18 t hrough October 1,
2014 . IAF, Tab 6 , Subtab s 2u, 2x. The CNA position was advertised under the
full performance level as a GS -05, which required either (1) “[o]ne year of
progressively responsible assignments and experience equivalent to the GS -4
level” and demonstrated knowledg e, skills, and abilities (KSAs) or (2) possession
of a bachelor’s degree and demonstrated KSAs . Id., Subtab 2u at 4. The
2 The position description for the GS -0640 -03 Health Aid position alternatively refers
to the position as “Escort” and states that an incumbent’s “duties and responsibilities
are as an escort of pati ents from one point to another within the facility.” IAF, Tab 18
at 2-6. Here , the titles “Health Aid” and “Escort” have been used interchangeably by
the parties and in the record . For the purpose of consistency, we have used the position
title of “Health Aid” in this decision.
3
VA Handbo ok 5005/71 states that, for experience to be creditable for the grade
requirements of the CNA position, “the experience must have required the use of
[KSAs] assoc iated with the current practice ” and “CNA experience must be
documented on the application or [résumé] and verified in an employment
reference, or through other independent means.” Id., Subtab 2v at 2. The
VA Handbook further states that “[p]art -time experience as a CNA is creditable
according to its relationship to the full -time workweek .” Id. The demonstrated
KSAs for the GS -05 level of the CNA position include the ability “to assist in the
full range of nursing care to patients/residents with physical and/or behavioral
problems,” “to communicate orally with patients/residents, families,
interdisciplinary team and other personnel,” and “to recognize and react to
emergent patient/resident care situations and intervene while waiting for
assistance.” Id., Subtab 2u at 4, Subtab 2v at 4 .
¶3 Although the appellant did not indicate on his résumé that he possessed a
bachelor’s degree, he described having relevant CNA experience from
September 2012 to December 2013 as a full -time Escort/Health Aid/Sitter/C NA.3
Id., Subtab 2w. He also represented th at he possessed relevant training
certifications and skills, including a CNA certification by a state, and he
addressed the required KSAs . Id. at 3-4. On October 11, 2014, t he agency
determined that the appellant was entitled to a 10-point veterans’ preference due
to his compensable disability rating of 30% or more . Id., Subtab 2x.
¶4 After learning of his nonselection for the CNA position on May 14, 2015 ,
the appellant filed a veterans’ preference complaint with the Department of Labor
(DOL) . Id., Subtab 2f. He claimed before DOL that he was well -qualified for the
CNA position and that the agency had interviewed him . Id., Subtabs 2d, 2f. In
3 Although the appellant’s work experience is not clearly organized in his résumé, we
have read it in the light most favorable to him. For example, he also indicated that he
worked as a full-time Housekeeper -Aid from Septemb er 6, 2013 , to a date uncertain .
IAF, Tab 6, Subtab 2w at 2.
4
the agency’s correspondence with DOL regarding the appellant’s complaint , the
agency explained that it initially found him qualif ied for the CNA position ,
included him on the certificate of eligibles, and referred him to the selecting
official for review of his application and a possible interview . Id., Subtab 2c.
The agency further explained that it later determined that he was not qualified for
the CNA position at the GS -05 level because he did not possess the required “one
year of experience caring for patients, communicating with patients, residents and
family members [,] and reacting to emergent patient care situations .” Id.,
Subtab 2e. The agency described how it verified that the appellant held the
positions of Health Aid , Laundry Worker, and Housekeeping Aid , but could not
find any personnel records to confirm that he held a CNA position , as he claimed
in his applicat ion.4 Id. Finally, t he agency contended that it removed the
appellant from the certificate of eligibles to correct its mistake in finding him
qualified . Id., Subtab 2c. The DOL ultimately determined that the evidence did
not support the appellant’s allegation that the agency violated his veterans’
preference rights . Id., Subtab 2a.
¶5 The appellant thereafter filed a Board appeal and requested a hearing. IAF,
Tab 1 at 1-8. Specifically, h e claimed that the agency violated his veterans’
preference rights under 5 U.S.C. § 3311 (2) by failing to consider his material
experience as a GS -03 Health Aid when it evaluated his application. IAF, Tab 1
at 8, Tab 13 . The appellant testified during the hearing that the duties of his
GS-03 Health Aid position are the same as or similar to those of the CNA
position . IAF, Tab 17, Hearing Compact Disc (HCD) (testimony of the
appellant). To support his argument, the appell ant submitted documentation
concerning the redescription of the GS-0640 -03 Health Aid position description
4 The record reflects that, from August 1994 to October 2012, the appellant held the
part-time positions of Laundry Worker, Housekeeping Aid, and GS -01 Health Aid.
IAF, Tab 6, Subtabs 2h -2n. It further reflects that , effective October 7, 2012, he was
reassigned to a full -time, GS -03 Health Aid position. Id., Subtab 2h.
5
in early 2014 and a copy of the U.S Court of Appeals for the Federal Circuit’s
decision in Kirkendall v. Department of the Army , 573 F.3d 1318 (Fed. Cir.
2009).5 IAF, Tab 18. The agency’s Human Resources Specialist testified that the
agency deemed the appellant unqualified for the GS-05 CNA position because he
lacked the required 1 year of experience caring for patients , communicating with
patients, residents, and family members, and reacting to emergent patient care
situations . HCD (testimony o f Human Resources Specialist). She further
testified that the appellant’s experience in the GS-03 Health Aid position was not
equivalent to the GS -04 level of the CNA position. Id.
¶6 The administrative judge issued an initial decision denying the appellant’s
request for corrective action under VEOA . IAF, Tab 19, Initial Decision (ID)
at 2, 6. She found that the Board has jurisdiction over the VEOA appeal. ID at 1.
However, she concluded that the appellant failed to prove that the agency viol ated
his veterans’ preference rights under 5 U.S.C. § 3311 (2) or 5 C.F.R. § 302.302 (d)
by not considering or omitt ing any of his prior experience when it reviewed his
application . ID at 6.
¶7 The appellant has filed a petition for review reiterating his argument that
the agency failed to credit his experience as a GS -03 Health Aid , and he cites
Kirkendall , 573 F.3d 1318 . Petition for Review (PFR) File, Tab 3 at 3. He
further alleges that some of the selectees for the CNA position are not veterans
and requests the Board to obtain the names of the selectees and proof of their
veteran status from the agency. Id. at 2-3. He submits the agency’s letter to DOL
from below as proof that the agency has made mistakes in the selection process.
5 During the hearing , the appellant quoted from the remarks section regarding grade
determination in the Position Evaluation S tatement , which states , “Because there are no
specific factor levels for [the GS 640 Health Aid and Technician Series], the duties of
this position were compared with the [Office of Personnel Management Position
Classification Standard] for Nursing Assista nt Series (TS -55) dated August 1983. The
duties outlined in the position were determined to be similar to the level of
responsibilities outlined in the standard with factor level determinations above .” HCD
(testimony of the appellant); IAF, Tab 18 at 7.
6
Id. at 5. The agency has filed a response opposing the appellant’s petition for
review . PFR File, Tab 5.
DISCUSSION OF ARGUME NTS ON REVIEW
The Board has jurisdiction over the appellant’s VEOA appeal .
¶8 A nonselection generally is not an action directly appealab le to the Board,
but it may be appealable under VEOA. Phillips v. Department of the Nav y,
110 M.S.P.R. 184, ¶ 5 (2008) , overruled on other grounds by Oram v.
Department of the Navy , 2022 MSPB 30 , ¶ 18 . To establish the Board’s
jurisdiction over a VEOA appeal based on an alleged violation of veterans’
preference rights, the appellant must show that he exhausted his remedy with
DOL and make nonfrivolous allegations that he is a preference eligible within the
meaning of VEOA, the action at issue took place on or after the October 30, 1998
enactment of VEOA, and the agency violated his rights under a statute or
regulation relating to veterans’ preference. Lis v. U.S. Postal Service ,
113 M.S.P.R. 415, ¶ 8 (2010); see 5 U.S.C. § 3330a . Here, the parties do not
dispute the administrative judge’s finding that the Board has jurisdiction over this
VEOA appeal , and we find no reason to disturb it.6 ID at 1 .
The appellant has failed to prove that the agency violated his ve terans’ preference
rights under VEOA .
¶9 To prevail on the merits of a VEOA appeal involving a veterans’ preference
claim , the appellant must prove the jurisdictional elements by preponderant
evidence. See Isabella v. Department of State , 106 M.S.P.R. 333, ¶¶ 21-22
(2007) (an alyzing the appellant’s burden of proving the merits of his VEOA
6 The CNA position for which the appellant applied is an excepted -service position in
the Veterans Health Administration (VHA ) and is covered by Title 38 of the U.S. Code .
IAF, Tab 6, Subtab 2u at 1-2, 5. The Board has held that the v eterans’ preference
requirements in Title 5 apply to appointments made for certain medical positions in the
VHA that are described in 38 U.S.C. § 7401 (3). Graves v. Department of Veterans
Affairs , 114 M.S.P.R. 209 , ¶¶ 6-9 (2010). Because “nurse assistants” are listed in
38 U.S.C. § 7401 (3), w e find that an appointment to the CNA position is subject to
veterans’ preference requirements .
7
appeal involving a veterans’ preference claim ), aff’d on recons , 109 M.S.P.R. 453
(2008) . Here, i t is undisputed that the appellant exhausted his remedy with DOL,
he is a preference -eligible veteran, and the nonselection took place after
October 30, 1998. IAF, Tab 5 at 6 -7, Tab 6, Subtab s 2a, 2 u. Therefore, the
relevant inquiry is whether the appellant has shown that the agency’s action
violated one or more of his statutory or regulatory veterans’ preference rights .
See Isabella , 106 M.S.P.R. 333, ¶ 22. Although the appellant retains the ultimate
burden of proof, the agency has the burden of producing evidence regarding the
extent to which it considered the appellant’s application be cause it is the only
party with access to such evidence. Phillips , 110 M.S.P.R. 184, ¶ 12 n.4.
¶10 As described above , the appellant argued that the agency violated his
veterans’ preference rights by failing to credit all of his experience relevant to the
CNA position , particularly his experience as a GS -03 Health Aid . IAF, Tab 1
at 8, Tab 13; HCD (testimony of the appellant) . Under 5 U.S.C. § 3311 (2), when
“experience is an element of qualification , a preference eligible is entitled to
credit . . . for all experience material to the position.” Under 5 C.F.R.
§ 302.302 (d), “[w]hen experience is a factor in determining eligibility, an agency
shall credit a preference eligible . . . with all valuable experience .” Thus,
5 U.S.C. § 3311 (2) and 5 C.F.R. § 302.302 (d) are a statute and a regulation ,
respectively, concerning veterans’ preference right s. Miller v. Federal Deposit
Insurance Corporation , 121 M.S.P.R. 88, ¶ 7 (2014), aff’d , 818 F.3d 1361 (Fed.
Cir. 2016).
¶11 Here, because the appellant did not satisfy the educational requirement for
the GS-05 level of the CNA position, he had to show 1 year of “ progressively
responsible assignments and experience equivalent to the GS -4 level” and
demonstrate the professional KSAs to be qualified for the position . IAF, Tab 6,
Subtab 2u at 4. It appears that the agency did not make a determination that the
appell ant was not qualified until after he filed a complaint with DOL. The record
is undeveloped on why exactly he was n ot selected from the certificate forwarded
8
to the selecting official or how the agency accounted for his veterans’ preference,
if at all, in referring his application to the selecting official. However, VEOA
does not enable veterans to be considered for positions for which they are not
qualified. Ramsey v. Office of Personnel Management , 87 M.S.P.R. 98 , ¶ 9
(2000) ; see Lazaro v. Department of Veterans Affairs , 666 F.3d 1316 , 1319 (Fed.
Cir. 2012) (citing Ramsey for the same proposition).7
¶12 For the following reasons , we agree with the administrative judge’s finding
that the appellant did not meet his burden of proving that the agency failed to
credit any of his relevant experience in violation of 5 U.S.C. § 3311 (2) or
5 C.F.R. § 302.302 (d). ID at 6 . The agency explained in its letter to DOL that it
verified that the appellant held the positions of Health Aid , Laundry Worker, and
Housekeeping Aid but that it determined that he did not meet the experience
requirement . IAF, Tab 6, Subtab 2e. In addition , the agency’s Human Resources
Spec ialist testified that the appellant’s experience in the GS-03 Health Aid
position was not equivalent to the GS -04 level of the CNA position. HCD
(testimony of Human Resources Specialist). Although the agency acknowledged
that it initially found the appellant qualified for the CNA position, we find that
the agency’s correspondence with DO L and the testimony of the Human
Resources Specialist adequately explain why it ultimately determined that he was
not qualified. IAF, Ta b 6, Subtabs 2c, 2e ; HCD (testimony of Human Resources
Specialist) ; cf. Russell v. Department of Health and Human Services ,
120 M.S.P.R. 42, ¶¶ 5, 11, 13-14 (2013) (remanding a compliance proceeding for
the agency to explain its apparent change in its assessment of a
preference -eligible applicant’s qualifications when it initially found him qualified
7 In Lazaro , the court remanded the appellant’s VEOA appeal for the Board to
determine whether his “other valuable experience was considered in accorda nce with
5 C.F.R. § 302.302 (d)” when the agency determined that he was unqualified for a
position. 666 F.3d at 1319, 1321. The instant appeal is distinguishable from Lazaro
because , as discussed below, we agree with the administrative judge’s finding that the
appellant failed to prove that the agency violated 5 C.F.R. § 302.302 (d). ID at 6.
9
for the ap plied -for position , but it later found him not qualified after the Board
ordered the agency to reconstruct the selection process ).
¶13 We further find that the appellant’s assertion that he was qualified because
his duties as a GS -03 Health Aid were similar to the duties of a CNA and his
reference to the agency ’s multiple mistakes in the selection process fail to rebut
the agency’s evidence that it evaluated all of his valuable experience when it
determined that he was not qualified . IAF, Tab 1 at 8, Tab 13; HCD (testimony
of the appellant); see Miller , 818 F.3d at 1367 (“Although the MSPB does not
reevaluate the weight the agency accorded to a veteran’s experience, the MSPB’s
jurisdiction extends to determining whether the agency actually evalua ted
‘experience material to the position,’ as required by 5 U.S.C. § 3311 (2) and
5 C.F.R. § 302.302 (d).”) . Moreover, we find that the instant appeal is
distinguishable from Kirkendall , 573 F.3d at 1324 -25, in which the court found
that the agency violated a preference -eligible applicant’s right to credit for all
material experience under 5 U.S.C. § 3311(2) when it “simply ignored” his
experience listed in military documents because it was not repeated on a two-page
application form. In contrast, the appellant here did not meet his burden of
show ing that the agenc y ignored or failed to credit any of his material experience .
¶14 In his petition for review, the appellant reiterates his arguments regarding
the agency’s mistakes in the selection process and his Health -Aid experience, and
he cites Kirkendall , 573 F.3d 1318 . PFR File, Tab 3. As discussed above, these
arguments, without more, fail to prove that the agency violated his veterans’
preferen ce rights under 5 U.S.C. § 3311 (2) or 5 C.F.R. § 302.302 (d). In addition,
the appellant claims that some of the selectees under the vacancy announcement
are not veterans , and he requests the Board to order the agenc y to provide
documentation on the selectees . PFR File, Tab 3 at 2 -3. We find that his claim
does not provide a reason to disturb the initial decision because it is not material
to the relevant issue of whether the agency properly credited all of his valuable
experience , and we decline his request . See Ramsey , 87 M.S.P.R. 98 , ¶ 9.
10
¶15 Finally, w e note that the administrative judge cited to Miller , 121 M.S.P.R.
88, ¶ 12, for the proposition that “[t]he Board’s role is limited to determining
whether the hiring agency improperly omitted, overlooked, or excluded a portion
of the appellant’s experiences or work history in assessing his qualifications for
the vacancy.” ID at 6. A lthough the court affirmed the Board’s decision in
Miller , the court found that the Board erred in so limiting its review. Miller ,
818 F.3d at 1366 (“[N]ot only must the MSPB determine whether the experience
record was complete, but it must also assess whether that record was adequately
considered by the agency.”). However, we find that the appellant’s substantive
rights have not been harmed by citing to that erroneous proposition because the
administrative judge correctly determined in the instant appeal whether the
experience record was complete and whether the agency considered his
experience material to the CNA position . ID at 5 -6; see Pante r 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 sub stantive rights provides no basis for reversal of
an initial decision).
¶16 Accordingly , we affirm the administrative judge’s denial of the appellant’s
request for corrective action under VEOA.
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decis ion. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer 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
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.
11
statement of how courts will rule regarding 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.
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
12
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
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
13
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the 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 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.9 The court of appeals must receive your petition for
9 The original statutory provision tha t provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to f ile petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive t o November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | MILLER_JIMMIE_L_AT_3330_15_0721_I_1_FINAL_ORDER_2050823.pdf | 2023-07-18 | null | AT-3330 | NP |
2,886 | https://www.mspb.gov/decisions/nonprecedential/WATKINS_FOSTER_AT_0752_14_0399_I_1_FINAL_ORDER_2050848.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FOSTER WATKINS, III,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -14-0399 -I-1
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vicki L. Fuller , Redstone Arsenal, Alabama, for the appellant.
Kathryn R. Shelton and Craig A. White , Redstone Arsenal, Alabama, 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 . For the reasons set forth below, the
appellant’s petition for review is DISMISSE D as untimely filed without a
showing of good cause . 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
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 On January 13, 2014, the appellant filed an appeal of the agency’s action
cancelling his appointment to a Security Guard position under 5 U.S.C. § 3310 .
Initial Appeal File (IAF), Tab 1. In an initial decision dated May 13, 2014, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant did not meet the statutory qualifications for the appointment and that
the age ncy’s cancellation of the illegal appointment was therefore not an
appealable action. IAF, Tab 8, Initial Decision (ID) at 2 -3. The administrative
judge notified the parties that the initial decision would become final on June 17,
2014, unless a petition for review was filed by that date . ID at 3 .
¶3 The appellant file d the instant petition for review on October 4, 2017 .
Petition for Review (PFR) File, Tab 1 . In the November 3, 2017 acknowledgment
letter, t he Office of the Clerk of the Board notified the appellant that, because it
was unclear whether or not he was attempting file a petition for review of the
May 13, 2014 initial decision, it had attempted to contact him by telephone on
October 12, October 18, and October 26, and by email on October 26, 2 017. PFR
File, Tab 2. The letter further explained that, because the office was unable to
reach him, his submission was being processed as an untimely petition for review.
Id. The appellant was provided a “Motion to Accept Filing as Timely or Waive
Time Limit ” form and advised that the Board might issue an order dismissing his
untimely petition if he did not submit the form, an affidavit, or a sworn statement
by November 20, 2017 . Id. The appellant filed the required motion on
November 21, 2017.2 PFR File, Tab 4.
2 In his motion, the appellant requested a 1 -day extension because the “[f]ax was
down.” PFR File, Tab 4 at 2. Because we find the appellant’s motion does not
establish that the petition for review was timely filed or that good cause exists for the
untimely filing, we do not address the timeliness of the motion itself.
3
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 A petition for review generally must be filed within 35 days after the date
of an issuance of an initial decision or, if the petitioner shows that the initial
decision was received more than 5 days after the date of issuance, within 30 days
after the date the petitioner received the initial decision . 5 C.F.R. § 1201.114 (e).
The Board will waive this time limit only upon a showing of good c ause for the
delay in filing. 5 C.F.R. §§ 1201.12 , 1201.114(f). Here, the initial decision was
issued on May 13, 2014, an d the appellant does not allege that she received it
more than 5 days after its issuance. Thus, the deadline for filing a petition for
review was June 17, 2014, approximately 3½ years before the filing of the
appellant’s October 4, 2017 petition for review.
¶5 The appellant asserts that the October 4, 2017 pleading was i n fact a
resubmission of a timely filed petition, and his representative avers in a sworn
statement that “a Petition for Review was sent in a timely [manner ]. Contact with
your office stated that you did not receive. Thus, the resubmission.” PFR File,
Tab 4 at 5. However, the appellant has not identified the date of the alleged filing
or provided any specific, credible evidence that the petition was actually placed
in the mail stream or sent by any other method of delivery. Absent such
evidence, there is no basis for finding that the alleged pleading was timely filed.
See Gaydon v. U.S. Postal Service , 62 M.S.P.R . 198 , 202 (1994).
¶6 We further find that the appellant has not established good cause for the
3½-year delay in filing the October 4, 2017 petition for review. To establish
good cause for the untimely filing of an appeal, a party must show that he
exerci sed due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 ( 1980).
To determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of th e existence of circumstances beyond his control that affected his ability to
4
comply with the time limits or of unavoidable casualty or misfortune which
similarly shows a causal relationship to his inability to timely file his petition.
Moorman v. Departme nt of the Army , 68 M.S.P.R. 60 , 62 -63 (1995), aff’d ,
79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶7 The appellant’s representative explai ns that “[b] ecause of MSPB having a
backlog of cases, the inquiry was not made immediately ” into what happened
after the Board did not respond to his previous attempted filing. PFR File, Tab 4
at 5. However, the failure of the appellant or his representa tive to inquire about
the alleged initial filing until after more than 3½ years does not demonstrate due
diligence or ordinary prudence under the circumstances in this case. See Williams
v. U.S. Postal Service , 51 M.S.P.R. 186 , 188 (1991) (finding th e appellant’s
inaction for over 2 years did not demonstrate due diligence) , aff’d , 967 F.2d 577
(Fed. Cir. 1992) . Therefore, we find that the appellant has failed to show good
cause for the untimely filing of the October 14, 2017 petition.
¶8 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final deci sion of the
Board regarding the determinat ion that the Board lacks jurisdiction over the
underlying 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 cla ims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Mer it
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 f inal decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If y ou wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of yo ur case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your c ase, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circui t, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeal s for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for t he Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
6
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
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request 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
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.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 j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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 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.
The All Circuit Review Act is retroactive to November 26, 2017 . Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WATKINS_FOSTER_AT_0752_14_0399_I_1_FINAL_ORDER_2050848.pdf | 2023-07-18 | null | AT-0752 | NP |
2,887 | https://www.mspb.gov/decisions/nonprecedential/OVERBY_JESSE_DE_3330_17_0398_I_1_FINAL_ORDER_2050855.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JESSE OVERBY,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DE-3330 -17-0398 -I-1
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse Overby , Castle Rock, Colorado, pro se.
Yolanda Hernandez , Chantilly, 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 d iligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appe al, we conclude that 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 After exhausting administrative procedures with the Department of Labor
(DOL), the appellant filed a Board appeal alleging that the agency violated his
rights under VEOA when it did not select him for a Project Manager position.
Initial Appeal File (IAF), Tab 1. The appellant did not request a hearing. Id.
¶3 Based on the parties’ written submissions, t he administrative judge found
that the appellant establis hed jurisdiction, but that he did not show that his
veterans’ preference rights had been violated. IAF, Tab 15, Initial Decision (ID)
at 3-5. She found that the agency issued two announcements for the position, a
merit promotion announcement and a public announcement. ID at 4. She found
that, because the appellant applied only under the merit promotion announcement,
and the agency made its selection under the public announcement, the appellant ’s
entitlements under VEOA were not violated when he was not selected for the
position. ID at 5.
¶4 In his petition for review, the appellant alleges that DOL mistakenly stated
that the agency made its selection for the Project Manager position from the merit
3
promotion announcement. P etition for Review File, Tab 1. He also appears to
assert that only current employees of the agency could be considered under the
merit p romotion announcement, and because none of the applicants on that
announcement were current agency employees, veterans’ preference rules applied
to the selection under the announcement. Id. He argues that the selectee for the
position was not merit promotion eligible, and that Congress intended that
veterans’ preference rules apply to merit promotion announcements . Id. He
argues that veterans’ preference should be considered in every instance. Id. The
agency has not responded to the petition.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board has jurisdiction over two types of VEOA claims: (1) the denial
of a right to compet e; and (2) the violation of a statute or regulation relating to
veterans’ preference. See 5 U.S.C. § 3330a (a)(1)(A) (veterans’ preference
claims); 5 U.S.C. §§ 3330a (a)(1)(B), 3304(f)(1) (“right -to-compete” claims); see
generally Piirainen v. Department of the Army , 122 M.S.P.R. 194 , ¶ 8 (2015).
The administrative judge d etermined that the appe llant was raising a VEOA claim
concerning the violation of a statute or regulation rel ating to veterans’ preference.
She advised the appellant that, to establish Board juris diction over such a claim,
he must show the following: (1) that he exhausted his remedy with DOL; and
(2) that he make nonfrivolous allegations that (i) he is preference eligible within
the meaning of VEOA; (ii) the action at issue took place on or after the
October 30, 1998 enactment date of VEOA; and (iii) the agency violated his
rights under a statute or regulation relating to veterans’ preference. ID at 2; see
Miller v. Federal Deposit Insurance Corporation , 121 M.S.P.R. 88 , ¶ 6 (2014),
aff’d , 818 F.3d 1357 (Fed. Cir. 2016). The administrative judg e found that the
appellant established jurisdiction over his appeal but did not establish that the
agency violated his veterans’ preference rights. ID at 3 -5.
4
¶6 The appellant has not provided a basis for disturbing this finding on review.
The Board has held that an agency has the discretion to fill a vacant position by
any authorized method. Joseph v. Federal Trade Commission , 103 M.S.P.R. 684 ,
¶ 11 (2006), aff’d , 505 F.3d 1380 (Fed. Cir. 2007). There is nothing preventing
an agency from soliciting appli cations from the general public and from merit
promotion applicants simultaneously . Id. We agree with the administrative
judge’s well -reasoned finding that, because the appellant only applied for the
Project Manager position through the merit promotion a nnouncement and the
agency selected a non -merit promotion eligible candidate from the public
announcement, the agency did not violate the appellant’s entitlements under
VEOA. ID at 5.
¶7 Regarding the appellant’s allegation that DOL mistakenly stated that the
agency made its selection from the merit promotion announcement, in a VEOA
appeal, the matter that is appealable to the Board is the alleged violation of the
individual ’s rights under a statute or regulation related to veterans ’ preference,
not DOL ’s decision conc erning the alleged violatio n. 5 U.S.C. § 3330a (d)(1). In
other words, the appeal before the Board is a de novo pr oceeding in which the
Board is not required to defer to DOL ’s findings regarding the merits of the
individual’s complaint. Shaver v. Department of the Air Force , 106 M.S.P.R.
601, ¶ 8 n.4 (2007). Thus , whether DOL mistakenly stated that the agency made
its selection from the merit promotion announcement has no bearing on the
Board ’s adjudication of the matter.
¶8 To the extent the appellant is seeking to raise a “right to compete” claim
under 5 U.S.C. § 3330a (a)(1)(B), he has failed to establish jurisdiction over any
such claim.2 To establish jurisdiction over a VEOA right to compete claim, the
2 The administrative judge did not provide the appellant with notice of how to establish
jurisdiction over a “right to compete” VEOA claim. To the extent the administrative
judge erred in this regar d, any such adjudicatory error is not prejudicial to the
appellant’s substantive rights and it provides no basis for reversal of the initial decision
5
appellant must: (1) show that he exhausted his remedy with DOL ; and (2) make
nonfrivolous allegations that (i) he is a veteran within the meaning of 5 U.S.C.
§ 3304 (f)(1), (ii) the actions at issue took place on or after the December 10, 2004
enactment date of the Veterans Benefits Improvement Act of 2004, and (iii) the
agency denied him the opportunity to compete under merit promotion procedures
for a vacan t position for which the agency accepted applications from individuals
outside its own workforce in violation of 5 U.S.C. § 3304 (f)(1). Becker v.
Department of Veterans Affairs , 115 M.S.P.R. 409 , ¶ 5 (2010). Here, the
appellant has not alleged that he was denied the right to compete as a preference
eligible under the merit promotion announcement issued by the agency. In fact ,
the record reflects that he was interviewed for the Project Manager p osition. IAF,
Tab 6 at 11 -12; see Harellson v. U.S. Postal Service , 113 M.S.P.R. 534 , ¶ 11
(2010) ( explaining that the only issue in an appeal concerning 5 U.S.C.
§ 3304 (f)(1) is whether the appellan t was permitted to compete for the position on
the same basis as other candidates). Thus, we also find that the appellant has
failed to establish the Board’s jurisdiction over a VEOA right to compete claim.
NOTICE OF APPEAL RIGHTS3
You may obtain review o f this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
because the record is sufficiently developed for us to resolve the jurisdictional issue at
this stage. See Morris v. Department of the Army , 113 M.S.P.R. 304 , ¶ 8 (2010)
(considering for the first time on review whether the Board has jurisdiction over the
appeal under VEOA when the appellant was not provided with specific notice of the
VEOA j urisdictional criteria and when the record was sufficiently developed on this
issue); Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (an
adjudicatory error tha t is not prejudicial to a party’ s substa ntive rights provides no basis
for reversal of an initial decision ).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board ca nnot advise which option is most appropriate in any matter.
6
Although we offer the following summary of available appeal rights, the Merit
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 within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to de cide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by 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
8
EEOC’s Office of Federal Operations within 30 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
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.4 The court of appeals must receive your pe tition 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
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal 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 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.
December 27, 2017. The All Circui t Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any othe r circuit court 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 | OVERBY_JESSE_DE_3330_17_0398_I_1_FINAL_ORDER_2050855.pdf | 2023-07-18 | null | DE-3330 | NP |
2,888 | https://www.mspb.gov/decisions/nonprecedential/LEE_JONES_SWEETIE_DC_1221_17_0144_W_1_FINAL_ORDER_2050860.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SWEETIE LEE -JONES,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.
DOCKET NUMBER
DC-1221 -17-0144 -W-1
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sweetie Lee -Jones , Haymarket, Virginia, pro se.
Marianne Perciaccante , 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 for lack of jurisdiction her individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous finding s of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the ini tial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligenc e, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant filed an appeal in which she alleged that the agency retaliated
against her for alleged whistleblowing. Initial Appeal File (IAF), Tab 1. After
issuing notice of the burdens and elements for establishing jurisdiction over IRA
appeals , to which the appellant did not respond, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 3 , Tab 6, Initial Decision.
The appellant petitions for rev iew of the initial decision . Petition for Review
(PFR) File, Tab 5.
¶3 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before the Office of Special Counsel (OSC) and makes
nonf rivolous allegations that (1 ) she made a disclosure that was protected under
5 U.S.C. § 2302 (b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302 (a).2 Linder v. Department of
Justice , 122 M.S.P.R. 14 , ¶ 6 (2014) . The appellant here submitted no evidence
2 We have reviewed the relevant legislation amending the whistleblower protection
statutory scheme enacted during the pendency of this appeal and have concluded that it
does not affect the outcome of the appeal.
3
of exhaustion , and she did not identify a personnel action or a protected
disclosure. IAF, Tab 1. Further , she did not respond to the administrative
judge’s show cause order. Under the se circumstances, we find that the
administrative judge correctly dismissed the app eal for lack of jurisdiction.
¶4 On review, the appellant asserts that the agency did not follow its own
policy when it issued her a negative performance appraisal. PFR File, Tab 5 at 4.
However, she did not provide evidence of exhaustion before OSC , and sh e did not
identify any alleged protected disclosures. Accordingly, her petition for review
provides no basis for disturbing the initial decision.
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 summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. F ailure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 Since the issuance of the initial decision in this matter, the Board may have updated
the notice 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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order mu st file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district cour t no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be ac cessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC ) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no late r than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 7 7960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “rai ses no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judici al review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Feder al Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorn ey 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 | LEE_JONES_SWEETIE_DC_1221_17_0144_W_1_FINAL_ORDER_2050860.pdf | 2023-07-18 | null | DC-1221 | NP |
2,889 | https://www.mspb.gov/decisions/nonprecedential/OBENG_YAW_S_DC_0752_20_0124_I_1_FINAL_ORDER_2050897.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
YAW S. OBENG,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-0752 -20-0124 -I-1
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles W. Day, Jr., Esquire , Rockville, Maryland, for the appellant.
Ashley Geisendorfe r, 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 sustained the charge of failure to
follow safety procedures but mitigated the demotion penalty to a 30 -day
suspension . Genera lly, we grant petitions such as these 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 applicatio n of the law to the facts of the case; the administrative
judge ’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the o utcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review and AFFIRM the initial decision, which is now the Board ’s
final decision. 5 C.F.R. § 1201.113 (b).
BACKGR OUND
¶2 The appellant was previously employed as ZP -V Research Scientist with the
agency. Initial Appeal File (IAF), Tab 5 at 87. By a letter dated November 14,
2018, the agency proposed to demote the appellant (with a resulting loss in pay)
from the ZP -V pay band to a ZP -IV Research Chemist position, based on the
charge of failure to follow safety procedures with a single specification. Id.
at 146-53. In the narrative description under the charge, the agency alleged that
the appellant accessed a laborator y at his place of employment, the National
Institute of Standards and Technology (NIST), without authorization, and
completed a procedure cleaning a silicon wafer with hydrofluoric acid (HF)
without obtaining necessary permission or approval, and without u sing proper
required personal protective equipment (PPE). Id. at 149 -50. The appellant
provided a written reply and an oral response to the proposal, as well as a
supplemental written reply. Id. at 98, 100 -38, 140 -44. After considering the
3
appellant ’s replies, the deciding official issued a decision letter sustaining the
charge and the demotion penalty. Id. at 89 -96.
¶3 The appellant subsequently filed a formal equal employment opportunity
(EEO) complaint alleging that the agency discriminated against him on the basis
of race (Black), national origin (Ghana), and age (61 years of age) when it
demoted him. Id. at 33 -38. The agency issued a final agency decision (FAD)
finding no discrimination and provided the appellant with Board appeal rights for
his mix ed-case complaint.2 Id. at 40 -85. The appellant timely filed the instant
Board appeal challenging his demotion and reduction in pay, arguing that the
charge was unsupported, and that the penalty was unreasonable and the deciding
official failed to proper ly apply the Douglas3 factors in making his penalty
determination. IAF, Tab 1 at 1 -5. The appellant also raised affirmative defenses
of discrimination based on his race, national origin, and age. Id. at 5. After
holding the appellant ’s requested hearin g, see IAF, Tab 21, Hearing Compact
Disc (HCD), the administrative judge issued an initial decision that sustained the
charge of failure to follow safety procedures and found nexus between the charge
and the efficiency of the service, but mitigated the demotion penalty to a 30 -day
suspension as t he maximum reasonable penalty, IAF, Tab 22, Initial Decision
(ID) at 9 -19. The administrative judge also concluded that the appellant failed to
establish any of his affirmative defenses. ID at 20 -26.
2 A “mixed -case” complaint is a complaint of employment discrimination filed with a
Federal agency relating to or stemming from an action that can be appealed to the
Board. Moore v. Department of Ju stice , 112 M.S.P.R. 382 , ¶ 4 n.4 (2009); 29 C.F.R.
§ 1614.302 (a)(1). The appellant’s case was a mixed -case because, at the time the
agenc y issued the FAD, he had been issued a letter of decision on the demotion and loss
of pay that was appealable to the Board.
3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305-06 (1981) , the Board
articulated a nonexhaustive list of 12 relevant factors to be considered in determining
the appropriateness of an imposed penalty.
4
¶4 The agen cy has filed a petition for review of the initial decision, arguing
that the administrative judge misapplied the law to the facts , made erroneous
credibility determinations, and abused her discretion by mitigating the agency ’s
chosen penalty.4 Petition fo r Review (PFR) File, Tab 1. The appellant has filed a
response to the petition for review and a cross petition for review.5 PFR File,
Tab 3. The agency has filed a reply to the response and the cross petition for
review. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the agency argues tha t the administrative judge erred by failing
to identify all of the material issues of fact and by failing to resolve necessary
credibility disputes. PFR File, Tab 1 at 19 -22. The agency also argues that the
4 With its petition for review, the agency submitted a certification of its complianc e
with the interim relief order and provided evidence demonstrating that it has complied
with the administrative judge’s interim rel ief order, which the appellant does not
challenge on review. Petition for Review (PFR) File, Tab 1 at 34 -39; see 5 C.F.R.
§ 1201.116 (a).
5 The appellant was required to file a response to the petition for review and a cross
petition for review by Sunday , July 19, 2020 . PFR File, Tab 2 at 1. Where, as here, the
deadline falls on a weekend, the filing deadline is extended to the next business day.
5 C.F.R. § 1201.23 . Thus, the appellant’s submission was due on Monday, July 20,
2020 . The appellant’s first response /cross petition for review was electronically filed at
11:56 p.m. Eastern Standard Time (EST) on July 20, 2 020, and a substantially similar
second response with a number of formatting and spelling error corrections was
electronically filed at 12:48 a.m. EST on July 21, 2020. See PFR File, Tabs 3-4. The
appellant asserted that the first filing was erroneously submitted due to a
“synchronization conflict on Microsoft SharePoint,” and requests that the second filing
be accepted into the record. PFR File, Tab 4 at 3. The agency argues that the changes
made in the latter filing were “extensive” and went “beyond c orrecting mere
formatting” issues, and requests that the latter submission be rejected as untimely filed
without good cause shown for the delay. PFR File, Tab 6 at 5. We have reviewed both
filings, and aside from the nominal number of misspelling correct ions, word
substitutions, and general formatting changes the agency identified, the two filings were
otherwise functionally the same in terms of both structure and content. Nevertheless,
we have not considered the appellant’s second filing, and our decisi on here is based
exclusively on the first, timely filed response in opposition to the petition for review
and cross petition for review.
5
administrative judge abused her discretion when she mitigated the agency ’s
chosen penalty, by reweighing the Douglas factors and by substituting her
judgment for that of the deciding official. Id. at 23 -32.
The administrative judge made reasoned findings of fact and credibility -based
determinations.
¶6 Regarding its argument that the administrative judge failed to identify all
material issues of fact, the agency points to a footnote in the initial decision
stating that, based on the appellant ’s admission that he entered the HF lab and
cleaned silicon wafers without authorization and without using required PPE, the
administrative judge found that to be “a sufficient basis for finding that [the
appellant] engaged in the charged misconduct, ” and s o she found it unnecessary
to further discuss the specific evidence supporting the charge. PFR File, Tab 1
at 19; see ID at 10 n.1. The agency argues that i n concluding that the charge was
proven base d on the appellant ’s admission, the administrative jud ge failed to
resolve the significant discrepancies between the testimony from the appellant
and the agency witnesses concerning how far the students accompanying the
appellant in the lab stood from the appellant, how the fume hood sash was
arranged, whethe r the appellant had received permission to use the HF lab,
whether he had regularly worked in the HF lab on previous occasions, and
whether his use of safety equipment was superior to that mandated by the lab ’s
standard operating procedures (SOPs) , among o ther things. PFR File, Tab 1
at 19-21. The agency also argues that the administrative judge failed to make
explicit credibility findings pursuant to the Board ’s decision in Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987) , and improperly credited
the appellant ’s version of events with respect to some of these factual disputes .
Id. at 21 -22; PFR File, Tab 6 at 9 -10, 15 -17. The agency asserts that the failure
to resolve these disputed issues constituted reversible error , citing the Board ’s
decision in George v. Department of the Air Force , 24 M.S.P.R. 269 , 270 -71
(1984) , for support. PFR File, Tab 1 at 19, 22 , Tab 6 at 6 -7, 15-17.
6
¶7 In response, the appellant argues that the administrative judge correctly
considered all material facts and made reasoned cre dibility determinations
necessary to resolve the appeal. PFR File, Tab 3 at 5 -10. The appellant argues
that the agency overstates the importance of the cited footnote, observing that the
administrative judge merely concluded that based on the appellant ’s admission,
no further evidentiary determinations were necessary concerning the issue of
whether the narrative charge had been proven, but that the administrative judge
made clear that she reviewed “all relevant evidence to include testimony and
admitted e xhibits ” in reaching her determination. Id. at 6-7; see ID at 10 n.1 .
The appellant asserts that the administrative judge properly made credibility
findings in resolving the relevant disputed testimony, but that contrary to the
agency ’s assertion otherwise, it was not necessary for the administrative judge to
resolve “the details of every instance of disputed testimony ” in order to determine
that the agency proved the charge . PFR File, Tab 3 at 7-9. He also disputes the
agency ’s asser tion that the administrative judge improperly credited the
appellant ’s testimony over that of agency officials on disputed issues. Id. at 9-10.
¶8 We agree with the appellant that the administr ative judge properly
considered the relevant evidence in making her determinations . As the appellant
correctly notes, it was not necessary for the administrative judge to resolve the
dispute concerning issues such as the position of the fume hood, the relative
distance of the students observing the appellant, and the other f actors identified
by the agency in order to determine whether the misconduct as described in the
proposal occurred as charged. When an agency relies upon a generic charge of
misconduct and an accompanying narrative specification supporting its cha rge,
the agency is required to prove only the essence of the charge, not every single
fact alleged , in order to sustain the charge. See Hicks v. Department of the
Treasury , 62 M.S.P.R. 71 , 74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995)
(Table) . As described in the proposal, the agency charged the appellant with the
following: (1) accessing a NIST laboratory without authorization; (2) engaging
7
in the activity of cleaning a silicon wafer using HF; (3) without obtaining
necessary authorization and approval; and (4) without using the proper PPE
required by the SOP . IAF, Tab 5 at 1 49-50. The administrative judge concluded
that the agency proved each of these aspects of the charge based on the
appellant ’s admission to each of these facts at his oral response to the proposal, in
his supplemental written response, and at the hearing. IAF, Tab 5 at 98, 100 -38;
HCD (testimony of appellant); see ID at 9 -10.
¶9 The admini strative judge then turned to a detailed penalty analysis
discussion to address the remaining disputed issues regarding the seriousness and
severity of the appellant ’s mis conduct, whether he was on notice that he was
engaging in misconduct, and other mitigating or aggravating factors related to the
appellant ’s misconduct that would bear on t he appropriate penalty. ID at 12-19.
However, for the purpose of determining wheth er the agency proved the charge as
described in the proposal, the administrative judge properly considered and
summarized the relevant evidence in the record and made approp riate findings.
As the appellant correctly notes, the fact that the administrative judge did not
painstakingly recount all of the material facts and all of the evidence in the record
supporting the agency ’s charge in reaching her determination that the agency
proved the misconduct as alleged does not mean that she did not consider it in
reaching her decision. Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129 , 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table); see
PFR File, Tab 3 at 6 -7.
¶10 With respect to the Board ’s decision in George cited by the agency , that
decision is inapposite and distinguishable. PFR Fi le, Tab 1 at 19, 22 , Tab 6
at 6-7, 15 -17. In concluding that the agency failed to show that the proposed
discipline would promote the efficiency of the service in George , the
administrative judge in that case failed to analyze whether the charged conduct
had, in fact, even occurred. George , 24 M.S.P.R. at 270 . Here, by contrast, the
administrative judge specifically determined that the misconduct occurred based
8
on the appellant ’s admission that it did, and that alone was sufficient to support
the administrative judge ’s finding that the charge was proven.
¶11 Regarding the agency ’s argument that the administrative judge “apparently
credited ” the appellant ’s testimony on disputed issues , such as his claim that he
was trying to improve the SOP or that the fume hood was configured in the
manner he described and similar such issues, and failed to credit contrary
testimony by agency witnesses concerning these points, there is also no merit to
this assertion. PFR File, Tab 1 at 21 -22. Because the administrative judge held a
hearing, her credibility determinations were implici tly based on witness
demeanor. The Board must give deference to an administrative judge ’s
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
over turn such determinations only when it has “sufficiently sound ” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) ;
see Mithen v. Depa rtment of Veterans Affairs , 122 M.S.P.R. 489 , ¶ 13 (2015)
(noting that an administrative judge ’s credibility determinations are “virtually
unreviewable ”), aff’d, 652 F. App ’x 971 (Fed. Cir. 2016) . In the initial decision,
the administrative judge made clear that she relied on the factors identified by the
Board in Hillen for resolving credibility -based disputes, to the extent they existed
and were relevant to her determinations .6 See ID at 23 (citing Hillen , 35 M.S.P.R.
at 458).
6 Indeed, the administrative judge explicitly noted that she credited the deciding
official’s testimony in analyzing th e appellant’s discrimination affirmative defense
claims, citing the appropriate Hillen factors, but noted that her decision to mitigate the
demotion penalty was not based on the deciding official’s lack of credibility. See ID
at 23 (citing the Hillen factors related to the deciding official’s demeanor, prior
consistent statements, and lack of bias in crediting his testimony). Additionally, she
explicitly declined to credit the appellant’s testimony that he believed he was
“grandfathered” into using the HF lab and therefore lacked notice of his misconduct.
See ID at 16 (rejecting the appellant’s arguments regarding lack of notice).
9
¶12 With respect to the agency ’s specific objections, t he administrative judge
identified the appellant ’s statement that he deviate d from the SOP in order to
make the safety requirements “more rigorous, ” first, in analyzing whether he had
notice that his actions were contrary to the agency ’s established rules and
guidance, and second, in identifying his testimony at the hearing that he later
came to understand that he could not deviate from the establish ed SOP. ID
at 15-16, 19. In neither instance did the administrative judge credit these
statements as true or as confirming that the appellant had, in fact, improved the
established safety protocols, but she instead cited them to show that there was a
shift in the appellant ’s demeanor before and after the oral response to the
proposed demotion, after he reviewed his lab authorizations and contemplated his
conduct and began to fully understand the seriousness o f his misconduct. See ID
at 5, 18-19.
¶13 Regarding the agency ’s claim that the administrative judge apparently
credited the appellant ’s testimony that he had the fume hood positioned in the
manner he described, there is also no support for this assertion. PFR File, Tab 1
at 21. The administrative judge did not make any findings at all about the
positioning of the fume hood in the initial decision because, as discussed above,
such a finding was not necessary to her determination that the charged
misconduct occurred , and the agency fails to identify where in the decision the
administrative judge purportedly made any such finding. Accordingly, we
conclude that the administrative judge properly considered the relevant evidence
in making her findings of fact a nd made reasoned credibility determinations , and
we see no reason to disturb those findings on review. See Clay v. Department of
the Army , 123 M.S.P.R. 245 , ¶ 9 (2016) (finding no reason to disturb the
administrative judge ’s findings where the administrative judge consider ed the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (same).
10
The administrative judge did not abuse her discretion by mitigating the demotion
penalty to a 30 -day suspension.
¶14 On review , the agency argues that given the administrative judge ’s finding
that the deciding official provided a “thorough Douglas factor analysis, ” she
abused her discretion by failing to give deference to the agency ’s penalty
determination when she reweighed the Douglas factors and substituted her own
judgement for that of the agency . PFR File, Tab 1 at 22 -32; Tab 6 at 13 -15; see
Douglas , 5 M.S.P.R. at 305-06. Specifically, with respect to the appellant ’s
potential for rehabilitation, the agency argues that the administrative judge
erroneously reject ed the deciding official ’s conclusion that the appellant ’s
“continued rationalizations ” and his failure to fully apologize for his misconduct
and acknowledge wrongdoing indicated that he had little potential for
rehabilitation. PFR File, Tab 1 at 23-28; Tab 6 at 10. To support its position , the
agency cites a num ber of Board decisions it argues demonstrate that the Board
will reverse an administrative judge ’s penalty mitigation d etermination where she
rejected the deciding official ’s Douglas factor analysis and instead independently
reweighed the mitigating and aggravating factors. See PFR File, Tab 1 at 26 -28;
Tab 6 at 12 -14.
¶15 The agency also disputes the administrative judge ’s finding that the
appellant showed contrition and acknowledged his misconduct during the course
of the disciplinary p rocess , and argues that this finding was in tension with the
deciding official ’s testimony at the hearing that he was not satisfied with the
appellant ’s apology or convinced that the appellant understood the severity of his
misconduct. PFR File, Tab 1 at 27-31; see ID at 14 . To that end, t he agency
highlights the fact that the appellant failed to specifically note that two students
were present while he was improperly using HF in his post -oral reply
supplemental statement , and that during his deposition a nd at the hearing, he
continued to take the position that he could deviate from the SOP and that his
procedure for handling HF was sufficiently safe. PFR File, Tab 1 at 27 -31; Tab 6
11
at 11 -12. The agency argues that as a result of these erroneous findings , the
administrative judge improperly concluded that the appellant ’s misconduct
constituted a “technical violation, ” and not an intentional one, and thus warranted
a reduced penalty . PFR File, Tab 1 at 22 -25, 28 -31 (citing Oddo v. Department of
the Treasu ry, 13 M.S.P.R. 483 (1982) ). Finally, the agency argues that the
penalty of removal was within the bounds of reasonableness and so the penalty
shou ld have been upheld . PFR File, Tab 1 at 25-29, Tab 6 at 6 -7, 13 -15.
¶16 When the Board sustains all of the charges, it will review an
agency -imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discre tion within tolerable limits of
reasonableness. Stuhlmacher v. U.S. Postal Service , 89 M.S.P.R. 272 , ¶ 20
(2001). In determi ning whether the selected penalty is reasonable, the Board
gives due deference to the agency ’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency, recognizing that its
function is not to displace management ’s responsibility or to decide what penalty
it would impose, but to ensure that management judgment has been properly
exercised and that the penalty selected does not exceed the maximum limits of
reasonableness. Id. Thus, the Board will modify a penalty on ly when it finds that
the agency failed to weigh the relevant factors or that the penalty the agency
imposed clearly exceeded the bounds of reasonableness. Id. The Board will
correct the agency ’s penalty when all of the charges are sustained only to the
extent necessary to bring it to the maximum penalty or the outermost boundary of
the range of reasonable penalties. Id.
¶17 Nevertheless, the ultimate burden is on the agency to persuade the Board of
the appropriateness of the penalty imposed. Douglas , 5 M. S.P.R. at 307.
Although management officials are afforded significant deference in their penalty
determinations, “[t]he deference to which the agency ’s managerial discretion may
entitle its choice of penalty cannot have the effect of shifting to the appel lant the
12
burden of proving that the penalty is unlawful, when it is the agency ’s obligation
to present all evidence necessary to support each element of its decision .” Id.
¶18 In mitigating the agency ’s chosen penalty, the administrative judge
reviewed the de ciding official ’s Douglas factor analysis and concluded that he
failed to properly consider all of the evidence relevant to a number of those
factors. ID at 12 -19. Although the agency argues that this constituted an
unwarranted reweighing of the Douglas factors, the administrative judge instead
identified specific relevant information that the deciding official either failed to
consider or inappropriately discounted in conducting his Douglas factor analysis.
¶19 For example, regarding the first Douglas factor , which concerns the nature
and seriousness of the offense and its relation to the employee ’s duties, position,
and responsibilities, including whether the offense was intentional or technical or
inadvertent, was committed maliciously or for gain, o r was frequently repeated,
the administrative judge agreed with the deciding official ’s conclusion that the
appellant ’s violation was serious, but rejected his implicit conclusion that the
appellant ’s misconduct was intentional, finding instead that it was a mere
oversight or error in judgment that was unlikely to be repeated in the future . ID
at 12-13, 15; see IAF, Tab 5 at 91. On review, the agency doubles down on its
assertion , arguing that the appellant ’s misconduct was “intentional ” or “willful, ”
in contrast to that of the employee in the Board case cited by the appellant where
the penalty was mitigated . See PFR File, Tab 1 at 21, 28-31, Tab 6 at 14-15.
¶20 Despite the agency ’s assertion otherwise, the record supports the
administrative judge ’s conclusion that the appellant ’s safety violation was
attributable to his mistaken belief that he could access the HF lab and that his
choice of PPE equipment was appropriate , and the deciding official failed to
adequately consider these facts and instead misconstrued the appellant ’s
explanation for why he held his mistaken belief as post -hoc rationalizations for
his action . See ID at 14 -15. Specifically, in his oral reply, the appellant
acknowledged that at the time he accessed the HF lab, he believed tha t he had
13
been “grandfathered ” into using the lab, but that after he reviewed the Hazard
Review materials for the lab, he understood that he was not authorized to perform
certain activities in certain labs . IAF, Tab 5 at 11 1-13. The appellant later made
clear that he understood that this prior belief was mistaken, noting that he “fully
admit[ted] ” that he made a mistake, that he was “not trying to justify the
mistake ,” and that he was embarrassed by his oversight because he prided himself
as “mister safety. ” Id. at 122. To further drive the point home, the appellant later
repeated that he was “willin g—again repeat I ’m willing to admit the mistakes that
I’ve made, ” restated that he was not attempting to justify his mistakes , that he
“made mistakes . . . I made a mistake, period, ” and that “[m]istakes were made
based on me making assumptions. ” Id. at 124 -25.
¶21 Seemingly recognizing the appellant ’s acknowledgment that his actions
were the result of a mistake, the deciding offi cial offered the appellant the
opportunity to supplement his oral response with a “very short concise statement
accepting responsibility for what happened ,” and stated that he would consider
reducing the penalty to a 30 -day suspension . Id. at 119-20, 1 28-29, 132 -33. The
appellant agreed to do so and later produced the requested brief statement , in
which he once again stated that he entered the HF lab without authorization, that
he deviated from the lab’s required SOP, and that those actions “were mista kes”
and he “took responsibility for them. ” Id. at 98. Accordingly, we agree with the
administrative judge ’s finding that the appellant ’s misconduct was not an
intentional violation of the agency ’s safety rules, but instead was an oversight
based on his admittedly mistaken belief about the propriety of hi s actions, and
that the deciding official failed to adequately account for this fact in considering
the nature and seriousness of the misconduct, particularly with respect to whether
the appellant ’s misco nduct was intentional or technical or inadvertent . See ID
at 13; Douglas , 5 M.S.P.R. at 332.
¶22 Similarly , the agency challenges the administrative judge ’s conclusion that
the appellant demonstrated clear potential for rehabilitation and that the deciding
14
official erred by determining otherwise. PFR Fi le, Tab 1 at 26 -29; Tab 6
at 13-14; see ID at 17 -19. The agency points to the deciding official ’s finding
that the appellant ’s acknowledgment that “mistakes were made ” in his oral reply
understated the sever ity of his actions and were evidence that he had limit ed
potential for rehabilitation, and the agency argues that the administrative judge
erred in concluding otherwise. PFR File, Tab 1 at 26-29, Tab 6 at 13 -14; see IAF,
Tab 5 at 93 . The agency argues that the deciding official appropriately concluded
that the appellant ’s insistence on explain ing his rationale for why he accessed the
HF lab and performed the cleaning activity without the proper PPE was evidence
that he did not truly understand th e severity of his misconduct and so he had
limited rehabilitative potential. PFR File, Tab 1 at 28 -31, Tab 6 at 10. The
agency also cites a number of Board cases it a rgues support its position that the
Board will reverse an administrative judge ’s mitigat ion determination where she
disregards the agency ’s finding that the appellant has little rehabilitative
potential. PFR File, Tab 1 at 26 -28 (citing Saiz v. Department of the Navy ,
122 M.S.P.R. 521 (2015) ; Balouris v. U.S. Postal Service , 107 M.S.P.R. 574
(2008) aff’d, No. 2008 -3147 , 2009 WL 405827 (Fed. Cir. Feb. 19, 2009) ; Batten
v. U.S. Postal Service , 101 M.S.P.R. 222 (2006) , aff’d, 208 F. App ’x 868 (Fed.
Cir. 2006) ).
¶23 We agree with the administrative judge ’s conclusion that the appellant
exhibited clear potential for rehabilitation, and that the deciding official erred by
disregarding that fact in his penalty analysis . See ID at 18; IAF, Tab 5 at 93. As
the administrative judge correctly observed , the deciding official ’s assertion in
the decision letter and in testimony at the hearing that there was no evidence of
the appellant ’s potential for rehabilitation was directly at odds with hi s posture
during the appellant ’s oral reply. See ID at 19. Specifically, in addition to the
appellant ’s statements identified above acknowledging that he impermissibly
deviated from the SOP when he accessed the lab without using proper PPE, the
appellant also made clear that he accepted that he was wrong to deviate from the
15
SOP , but offered that he was only attempting to improve the procedures to make
them more rigorous . IAF, Tab 5 at 117 . When pressed by the d eciding official
regarding whether the appellant fully understood that deviating from a lab ’s SOP
was impermissible even if the intention was to improve the SOP, the appellant
reaffirmed that he understood that, and stated that if he had ideas for how to
improve an SOP , he should have spoken with the lab overseer about his ideas as
opposed to “implementing it on the fly, ” and stated that he was “profoundly
sorry ” for not doing so. Id. at 118 -19. Based on the appellant ’s responses, the
deciding official asked him to prepare the supplemental statement acknowledging
that the facts set forth in the proposal letter were met and stated that he would
then consider reducing the penalty, mentioning a 30 -day unpaid suspension as the
potential reduced penalty. Id. at 119 -20. The deciding official acknowledged
that “mistakes are going to happen, ” but that based on the appellant ’s first written
response to the proposal, he had concerns that the appellant did not appear
“contrite ” and did not “recognize, acknowledge mistakes that were made. ” Id.
at 121, 123 -24. To assuage any remaining concerns about his apparent lack of
contrition, the appellant once again stated that he was “willing to admit the
mistakes [he] made, ” and clarified that he was not trying to justify his actions .
Id. at 124. He also expressed surprise about the fact that after he met with the
proposing official for the first time to discuss the incident, the language in the
resulting proposal suggested that the appellant was “insisting that [he] was right, ”
which was not what the appellant intended to convey, so he acknowledged that he
may have “failed to communicate with [the proposing official] properly. ” Id.
at 124-25. The appellant then again stated that he was “profoundly sorry, ” and
agree d to supplement his oral testimony with the requested written statement. Id.
at 126, 128. After the appellant sought clarification on what form the
supplemental response should take, the deciding official stated that he wanted a
“very short concise state ment accepting responsibility for what happened ” by
email, and the appellant agreed to do so. Id. at 132 -33.
16
¶24 As the administrative judge correctly observed, the appellant did exactly as
he was asked to do in the supplemental statement. See ID at 18. The resulting
supplemental statement succinctly memorialized the issues discussed above, with
the appellant acknowledging the following: (1) that he entered the HF lab
without explicit authorization and training; (2) he deviated from the lab ’s SOP
without authorization from the Principal Investigator (PI) as specified by the
Hazard Review protocols ; (3) that these were mistakes and h e took responsibility
for them; and (4) that he apologized for the problems he caused the lab and its
management.7 Id. at 98. Although the decision letter acknowledges the fact that
the appellant provided a supplemental response, the penalty determination section
includes no mention of the supplemental statement, instead selectively drawing
language from the appellant ’s initial written response and oral reply . See IAF,
Tab 5 at 91 -93.
¶25 Further, t here is also no merit to the agency ’s argument that the appellant
continued to rationalize his misconduct during his testimony at the hearing,
7 On review, the agency also makes much of the appellant’s statement in his
supplemental written reply acknowledging that he could not deviate from the HF SOP
“without authorization,” arguing that because changes to the SOP at issue must be
approved by the Director of the Physical Measurement Laboratory, the appellant’s
added qualifier further demonstrated his lack of rehabilit ation and that he did not know
the correct procedures. See PFR File, Tab 1 at 22 n.10; Tab 6 at 16. The agency’s
argument is unconvincing. As an initial matter, the agency omits additional qualifying
language the appellant included in his supplemental r esponse, stating that he deviated
from the SOP “without prior authorization from the PI as specified by the Hazard
Review protocols .” See IAF, Tab 5 at 98. Further, in discussing the Hazard Review
process and requirements with the appellant during the oral reply, the deciding official
noted that the appellant “did not have the freedom” to deviate from the established
SOP, but that he could “bring the issue back up to the PI, and the PI can decide that
under the right set of circumstances alternatives may be acceptable,” and that the
Hazard Review policies are set up to “ensure that people do not deviate from agreed
training unless agreed up on by line management .” IAF, Tab 5 at 117 -18; see IAF,
Tab 14 at 9 -10. Consequently, the language the appellant used in his supplemental
response stating that deviations from the SOP must be sought in the manner “specified
by the Hazard Review protocols” is consistent with the language used by the deciding
official and with the requirements identified in the agency’s Hazard Review policies.
17
providing additional evidence of his limi ted rehabilitative potential. See PFR
File, Tab 1 at 27-28, 32 , Tab 6 at 10. A s was the case with the appellant ’s
statements during his oral reply, in his hearing testimony the appellant made clear
that his intent in explaining his actions was to identify his motivations at the time
he accessed the HF lab and used improper PPE, and was not an effort to defend
his actions after the fact. See HCD (testimony of the appellant) ( stating that he
took “full responsibility ” for his actions as he un derstood them at the time in his
response to the proposal and that he later “apologized profusely ” for his
misunderstanding, and answering “zero, ” and “I’m not going to do that again ” in
response to a question concerning the likelihood that there would be “any
repetition of any conduct ” identified in the charge).
¶26 On review, the agency also restates its argument that the appellant ’s failure
to address the fact that students were present demonstrated that he was unwilling
to take full responsibility for his m isconduct, and points to testimony from the
deciding official stating that the students ’ presence was “extremely problematic ”
and presumably weighed heavily in his decision finding a lack of rehabilitation.
PFR File, Tab 1 at 28 -29, Tab 6 at 6 -7. However, as the administrative judge
correctly noted , while the presence of the students was briefly discussed during
the oral reply, see IAF, Tab 5 at 129 -30, the deciding official did not give any
indication that he expected the appellant to s pecifically mention that fact in his
supplemental written apology , and so it was unreasonable for the deciding official
to have considered the absence of that acknowledgment as eviden ce of a lack of
rehabilitation, s ee ID at 17 -18. As previously noted, if a deciding official failed
to appropriately consider the relevant Douglas factors in making his penalty
determination, the Board need not defer to the agency ’s penalty determination.
Von Muller v. Department of Energy , 101 M.S.P.R. 91 , ¶ 19 (2005) , aff’d, 204 F.
App’x 17 (Fed. Cir. 2006) . Additionally, the Board may abandon its deference to
an agency ’s penalty determination where the deciding official misjudged the
appellant ’s rehabilitative potential. See id. , ¶ 21 ; Watkins v. Department of the
18
Navy , 29 M.S.P.R. 146 , 148 (1985) (declining to credit a supervisor ’s assertion
that he lost confidence in the appellant, instead concluding that the appellant
exhibited good potential for rehabilitation) . For the foregoing reasons , we agree
with the administrati ve judge ’s conclusion that the appellant repeatedly took
responsibility for his misconduct and exhibited clear rehabilitation, and it is clear
from the record that the agency failed to properly consider the appellant ’s
rehabilitative potential in making it s penalty determination. See Wentz v. U.S.
Postal Service , 91 M.S.P.R. 176 , ¶¶ 24 -25 (2002) (mitigating a penalty, based in
part on disagreement with the deciding official ’s conclusion that appellant lacked
potential for rehabilitation) .
¶27 Another of the factors to be considered in determining the propriety of a
penalty is the consistency of the penalty with th e agency ’s table of penalties.
Douglas , 5 M.S.P.R. at 305; see Peterson v. Department of Transportation ,
54 M.S.P.R. 178 , 184 (1992) (c onsistency of the penalty imposed with the
agency ’s table of penalties is a relevant factor in determining the reasonableness
of the penalty). Where the agency has a table of penalties, the Board will adhere
to the guidelines in the table unless a deviati on from the suggested penalty is
warranted under the circumstances. Goode v. Defense Logistics Agency ,
45 M.S.P.R. 671 , 676 (1990). The Board has long held that the agency ’s table of
penalties should not be applied so inflexibly as to impair consideration of other
factors relevant to the individual case. Douglas , 5 M.S.P.R. at 307. Deviation
from the table is permissible where the circu mstances of the case so justify.
Zazueta v. Department of Justice , 94 M.S.P.R. 493 , ¶ 8 (2003), aff’d, 104 F.
App’x 166 (Fed. Cir. 2004).
¶28 Nevertheless, if the agency deviates from its guidelines in its table of
penalties, it must establish that the more severe penalty is within the bounds of
reasonableness. Basquez v. Department of the Air Force , 48 M.S.P.R. 215 , 218
(1991). If the agency cannot justify the deviation, it has abused its discretion.
Williams v. Department of the Air Force , 32 M.S.P.R. 347 , 349 (1987)
19
(concluding that where the agency has a table of penalties, it must adhere to the
guidelines in the table unless i t can show that a deviation from the suggested
penalty is justified by the circumstances of the case) ; Stead v. Department of the
Army , 27 M.S.P.R. 630 , 634 (1985). Indeed, a penalty grossly exceeding that
provided by an agency ’s standard table of penalties, for that reason alone, may be
arbitrary and capricious , even where such a table provides only suggested
guidelines. Douglas , 5 M.S.P.R. at 307 n.71; cf. IAF, Tab 5 at 196 (noting that
the agency ’s table of penalties in this case are “guidelines only and are not
mandatory ”).
¶29 The agency ’s table of penalties identifies a penalty range of an oral
admonishment to a 3 -day suspension for a fir st offense of the most closely
analogous charge to the sustained charge, a “violation of safety regulations,
instruction s, or prescribed safe practices. ” See IAF, Tab 5 at 201. Aside from
generally stating on review that the demotion penalty was the “only reasonable ”
or “lowest possible ” penalty available under the circumstances, the agency does
not offer any specific argument explaining why such a significant departure from
the penalty range was justified. See PFR File, Tab 1 at 32 , Tab 6 at 7.
¶30 Conversely , the Board has sustained decisions mitigating a removal to an
unpaid suspension for a first offense of a safety -related violation in circumstances
similar to those in this case, even on occasions where the appellant ’s misconduct
potentially endange red himself or others. See, e.g., Wentz , 91 M.S.P.R. 176 ,
¶¶ 15-25 (concluding that a 5 -day suspension, rather than removal, was the
maximum reasonable penalty for the sustained sole charge of “unsatisfactory
performance/failure to perform the duties of your position in a safe manner ”
based on a motor vehicle accident, where the appellant had several mitigating
factors including 13 years of discipline -free Federal service, he was under the
influence of prescription medication that played a part in the misconduct, and
other employees were treated much less harshly for similar safety violations);
Williams v. Department of the Navy , 38 M.S.P.R. 387 , 390 -91 (1988) (mitigating
20
a removal penalty to a 30 -day suspension for a first offense of “failure to observe
precautions for personal safety, posted rules, signs, written or oral safety
instructions, or to use protective clothing or equipment, ” where the appellant
violated medical restrictions mandating his use of a cane and endangered his own
safety, and where the agency ’s table of penalties identified a penalty range of a
reprimand to 2 -day suspension for a first offense); Watkins , 29 M.S.P.R.
at 147-48 (mitigating a removal penalty to a 60 -day suspension for a first offense
of “endangering the safety personnel through car elessness ” when the appellant
exposed himself and a subordinate to X -ray radiation, despite the seriousness of
the offense, the fact the appellant ’s supervisor stated that he had lost confidence
in that appellant and declined to mitigate the penalty based on that loss of
confidence, and the fact that the appellant was in charge and therefore was held to
a higher standard, where the violation was the appellant ’s first offense in an
otherwise spotless 25 -year work and safety record, and the appellant ’s potent ial
for rehabilitation was good).
¶31 Further , as the administrative judge correctly noted , the agency could have
charged the appellant with a charge of “conduct demonstrating untrustworthiness
or unreliability, ” for which the demotion penalty would have been more in line
with the agency ’s table of penalties, and i t is clear from the record that agency
officials specifically contemplated doing so but ultimately chose not to. See IAF,
Tab 5 at 203, Tab 16 at 63 -64; HCD (testimony of proposing official); ID at 1 6.
The Board is required to review the agency ’s decision on an adverse action solely
on the grounds invoked by the agency, and the Board will not substitute what it
considers to be a more adequate or proper basis. Gottlieb v. Veterans
Administration , 39 M.S.P.R. 606 , 609 (1989). For the foregoing reasons , we
agree with the administrative judge ’s conclusion that the demotion penalty
significantly exceeds the 3 -day suspension maximum penalty provided by the
agency ’s table of penalties, the agency failed to adequately justify such a
significant departure from the its table of penalties , and that a 30-day suspension
21
is the maximum reasonable penalty based on the facts of this case. See ID
at 16, 19.
The administrative judge correctly concluded that the appellant failed to establish
his affirmative defenses.
¶32 The appellant has also filed a cross peti tion for review challenging the
administrative judge ’s finding that he failed to establish his affirmative defenses
of discrimination based on his race, national origi n, and age. PFR File, Tab 3
at 17-18; see ID at 20 -26. Specifically, the appellant argu es that the
administrative judge erred by concluding that his white co -worker was not a valid
comparator, despite the fact that the deciding official had ultimate supervisory
authority over both the appellant and the co -worker, and the co -worker ’s
miscondu ct was more egregious but he did not receive any disciplinary act ion.
PFR File, Tab 3 at 17 -18. In response, the agency argues that the administrative
judge did not err in determining that the co -worker was not a valid comparator,
highlighting the administrative judge ’s finding that the purported comparator was
in the ZP -IV pay band while the appellant was a ZP -V, the co -worker was already
subject to additional oversight at the time the agency considered discipline, and
the comparator immediately to ok responsibil ity for his misconduct and self -
reported his safety violation while the appellant did not. PFR File , Tab 6
at 17-18.
¶33 In the initial decision, the administrative judge determined that the
appellant failed to establish by preponderant evidence that race, national origin ,
or age discrimination was a factor in the agency ’s demotion decision. See ID
at 20-26. In reaching that d etermination, she thoroughly reviewed the record and
testimonial evidence and concluded that the appellant did not provide any direct
or circumstantial evidence of discrimination, any evidence of suspicious timing,
ambiguous oral or written statements, beh avior or comments directed at
employees in the appellant ’s protected group s, or any other evidence that could
establish an inference of discriminatory intent. ID at 22 -26. Regarding the
22
appellant ’s purported comparator employee, as the administrative jud ge correctly
noted, the Board has held that for other employees to be deemed similarly
situated for purposes of a discrimination affirmative defense claim , comparators
must have reported to the same supervisor, been subjected to the same standards
governing discipline, and engaged in conduct similar to the appellant ’s without
differentiating or mitigating circumstances. Gregory v. Department of the Army ,
114 M.S.P.R. 607 , ¶ 44 (2010) (citing Adams v. Department of Labor ,
112 M.S.P.R. 288 , ¶ 13 (2009); Spahn v. Department of Justice , 93 M.S.P.R. 195 ,
¶ 13 (2003)).
¶34 As t he administrative judge correctly concluded, the proposed comparator
identified by the appellant is not an appropriate comparator because he was in a
lower pay band tha n the appellant (and thus had a lower level of independence),
did not report to the same supervisor, and made an immediate effort to report and
acknowledge his misconduct. See ID at 25-26. Accordingly , we agree with the
administrative judge that the iden tified co -worker was not an appropriate
comparator, and w e also agree with her conclusion that there is no evidence in the
record showing that the appellant ’s race, national origin, or age played any role in
the demotion decision. See ID at 22 -26. Accordingly, we find that the
administrative judge properly found that the appellant failed to prove any of his
discrimination affirmative defense s.8 ID at 2 2-23. For the foregoing reasons, we
deny the petition for review and cross petition for review an d affirm the initial
decision, which sustained the charge of failure to follow safety procedures but
mitigated the demotion penalty to a 30 -day suspension.
8 Because we discern no error with the administrative judge’s motivating factor anal ysis
or conclusion regarding the se claim s, we do not reach the question of whether
discrimination was a “but for ” cause of the removal action. See Pridgen v. Office of
Management and Budget, 2022 MSPB 31 .
23
ORDER
¶35 We ORDER the agency to CANCEL the appellant ’s demotion effective
March 3, 2019, and substitute in its place a 30-day suspension without 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.
¶36 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 th e 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.
¶37 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).
¶38 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 t he Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶39 For agencies whose payroll is administered by either the Nation al Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
24
necessary to process payments and adjustments resulting from a Board decision
are attached. The a gency 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 abo ve.
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, yo u 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 RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for yo ur situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which optio n is most appropriate in any matter.
25
immediately review the law applicable to y our claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of rev iew
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a g eneral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this dec ision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
26
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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. 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 review to the EEOC by regular U.S. mail, the
address of the EEOC is:
27
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you 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 raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appe als of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
28
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.
Contact information for the courts of appeals can be 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) Se ttlement 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 docum ents/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 Lea ve 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. | OBENG_YAW_S_DC_0752_20_0124_I_1_FINAL_ORDER_2050897.pdf | 2023-07-18 | null | DC-0752 | NP |
2,890 | https://www.mspb.gov/decisions/nonprecedential/PENTZ_RUSSELL_C_AT_0752_19_0322_I_1_FINAL_ORDER_2050905.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RUSSELL C. PENTZ,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0752 -19-0322 -I-1
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua L. Klinger , Esquire, Denver, Colorado, for the appellant.
John Cummings , Esquire, Columbia, South 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, which
reversed the agency’s indefinite suspension of the appellant and ordered the
agency to provide the appellant with interim relief if either party filed a petition
for review . For the reasons discussed below, we GRANT the agency’s petition
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 judg es are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 , VACAT E the initial decision, and DISMISS the appeal for lack of
jurisdiction.
BACKGROUND
¶2 The appellant was employed by the South Carolina Army National Guard as
a WG-10 Powered Support Systems Mechanic in Columbia, South Carolina.
Initial Appeal File (IAF), Tab 6 at 43. It is undisputed that he was a dual -status
military technician as defined in 10 U.S.C. § 10216 (a) and that , as a condition of
employment , he had to be a member of the National Guard . Id. at 21-26; IAF,
Tab 36 at 1; see 32 U.S.C. § 709 (b). Additionally, the appellant’s position
descriptio n indicated that a condition of employment required that he “[m]ust b e
able to obtain and maintain the appropriate security clearance of the position.”2
IAF, Tab 6 at 25.
¶3 In a December 20, 2018 Memorandum for Record , the agency documented
that the appellant’s access to classified information had b een suspended, pending
an investigation of his alleged theft of Government property. IAF, Tab 6 at 45.
Thereafter, on January 7, 2019, the agency proposed the appellant’s indefinite
suspension from his position based on the suspension of his access to class ified
information. Id. at 12-13. After considering the appellant’s January 29, 2019
written response to the proposed indefinite suspension, id. at 35 -39, wherein he
argued that the agency committed harmful error and failed to provide him with
sufficient information to make an informed reply, the deciding official issued a
2 In the initial decision, the administrative judge found that the appellant’s position did
not require a security clearance. IAF, Tab 41, Initial Decision (ID) at 4 -5. She made
this finding as a part of her analysis of the merits of the appellant’s appeal of his
indefinite suspension and contrary to the testimony of several witnesses that the
appellant’s position required a security clearance and to the appellant’s position
descri ption. ID at 2 -5; IAF, Tab 6 at 25; IAF, Tab 40, Hearing Compact Disc
(testimony of the proposing and deciding officials, the Commander, and a Labor
Relations Specialist). Because we recommend dismissing this appeal for lack of
jurisdiction, we do not re ach the question of whether the administrative judge erred in
this finding.
3
final decision, effective February 12, 2019, finding that an indefinite suspension
was appropriate, id. at 15-16.
¶4 The appellant appealed the indefinite suspension to the Board, assertin g that
the agency committed harmful error and violated his due process rights by failing
to provide him with all the information the deciding official relied upon to reach
his final decision.3 IAF, Tab 1 at 4. In its prehearing submission, the agency
asserted that the Board lacked jurisdiction over the appellant’s appeal pursuant to
32 U.S.C. § 709 (f)(4), which provides that a right to an appeal otherwise provided
by the statute “shall not extend beyond the adjutant general of the jurisdiction
concerned when the appeal concerns activity occurring while the member is in a
military pay status, or concerns fitness for duty in the reserve components .” IAF,
Tab 32 at 6 -8 (quoting 32 U.S.C. § 709(f)(4) ). In an order and summary of the
prehearing conference, the administrative judge addressed the agency’s challenge
to the Board’s jurisdiction. IAF, Tab 36 at 1 -2. She concluded that, although th e
alleged theft appears to have occurred while the appellant was in a military pay
status, the agency’s indefinite suspension action was based on the suspension of
his security clearance, not the purported theft. Id. at 2. Therefore, she concluded
that t he Board retains jurisdiction over his appeal, and she conducted the
appellant’s requested hearing. Id.; IAF, Tab 40, Hearing Compact Disc (HCD).
¶5 Prior to the commencement of the hearing, the agency reiterated its position
that the Board lacked jurisdic tion over the appellant’s appeal pursuant to
32 U.S.C. § 709 (f)(4). HCD (statements from agency counsel). Thereafter, the
administrative judge issued an initial decision finding that the agency f ailed to
3 It appears that the appellant was subsequently removed from his position for
misappropriating Government property and committing larceny while in a deployed
Title 10 status. See Pentz v. Department of the Air Force , MSPB Docket No. AT-0752 -
20-0286 -I-1, Initial Appeal File , Tab 1 at 12. That removal is the basis of the
appellant’s appeal in Pentz v. Department of the Air Force , MSPB Docket No .
AT-0752 -20-0286 -I-1. The Board w ill issue a separate decision addressing the issues
raised therein.
4
prove by preponderant evidence that it established a security clearance
requirement for the appellant’s position, and she reversed the appellant’s
indefinite suspension. IAF, Tab 41 , Initial Decision (ID) at 4 -5. She also ordered
the agency to p rovide the appellant with interim relief, in accordance with
5 U.S.C. § 7701 (b)(2)(A). ID at 7.
¶6 The agency has filed a petition for review, wherein it again argues tha t the
Board lacks jurisdiction over this matter under 32 U.S.C. § 709 (f)(4). Petition for
Review (PFR) File, Tab 1 at 7 -11. It also argues that the administrative judge
erred in finding that the a gency failed to prove by preponderant evidence that the
appellant’s position requires that he maintain eligibility for access to classified
information . Id. at 6-7. The appellant has filed a response to the age ncy’s
petition for review and asserts that t he agency failed to provide interim relief, as
ordered. PFR File, Tabs 3, 5, 6.
DISCUSSION OF ARGUME NTS ON REVIEW
The appeal must be dismissed for lack of jurisdiction, pursuant to 32 U.S.C.
§ 709.
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The appellant has the burden
of establishing jurisdiction over his appeal by preponderant evidence. 5 C.F.R.
§ 1201.56 (b)(2)(i)(A).
¶8 The National Defense Authorization Act for Fiscal Year 2017 amended
existing law to provide that dual -status military technicians, such as the appellant,
may appeal an adverse action to the Board when their appeals do not concern
“activity occurring while the member is in a military pay status ” or “fitness for
duty in the reserve components .” See 32 U.S.C. § 709(f)(4) -(5), (g) ; Dyer v.
Department of the Air Force , 971 F.3d 1377 , 1381 -82 (Fed. Cir. 2020) . As
discussed above , the administrative judge c onsidered the question of whether the
Board has jurisdiction over this appeal , but did so in a limited capacity ,
5
concluding that, although the underlying activity that led to the suspension of the
appellant’s access to classified information occurred while he was in a military
pay status, his indefinite suspension was based on the suspension of his access to
classified information —not the underlying activity. IAF, Tab 36 at 2. Although
the administrative judge is correct in her assessment of the basis for the
appellant’s indefinite suspension, she did not further consider, for the purposes of
jurisdiction, whether the agency suspended the appellant’s access to classifie d
information while he was in a military pay status or whether it concerned his
fitness for duty in the reserve components. Id. Thus, we consider that questio n
here.
¶9 Section 709 defines “military pay status” as “ a period of service where the
amount of p ay payable to a technician for that service is based on rates of military
pay provided for under title 37 .” 32 U.S.C. § 709(j)(1). In the decision
indefinitely suspending the appellant, the decid ing official indicated that “[t]he
Commander chose to serve the notification [regarding the suspension of the
appellant’s access to classified information] while [ the appellant was] in a
military status to coincide with the service of information related t o the military
investigation.” IAF, Tab 6 at 16 . The appellant has not denied or disputed this
claim. Additionally, the proposing official testified at the hearing that she waited
to propose the appellant’s indefinite suspension until the appella nt was notified
on the military side of the suspension of his access to classified information .
IAF, Tab 40, HCD (testimony of the proposing official). Based on the foregoing,
we find that the appellant’s appeal of his indefinite suspension concerns
activity —the suspension of his access to classified information —which occurred
while he was in a military pay status.4
4 Because we find that the Board lacks jurisdiction on this basis, we need not address
whether the appellant was required to maintain a security clearance, and if so, whether
that require ment concerns his “fitness for duty in the reserve components” under
32 U.S.C. § 709(f)(4).
6
¶10 Moreover, w e reiterate that it is the appellant’s burden to establish Board
jurisdiction by preponderant evidence . See 5 C.F.R. § 1201.56 (b)(2)(i)(A). In
the order and summary of the prehearing conference, the administrative judge
explained that, although dual -status military technicians, such as the appel lant,
now have adverse action appeal rights, those rights are limited to appeals that do
not concern activity that occurred while they are in a military pay status or
concern fitness for duty in the reserve components. IAF, Tab 36 at 2. Thus, the
appella nt was aware of the potential jurisdictional bars on his appeal. Although
he argues in his response to the agency’s petition for review that the “loss of his
clearance [] occurred while [he] was in his civilian status,” PFR File, Tab 6 at 7,
he has not po inted to any specific part of the record establishing that point. To
the contrary, as explained above, the record supports a finding that he was in a
military status when his access to classified information was suspended. IAF,
Tab 6 at 15; HCD (testimon y of the proposing official). We, therefore, find that
the appellant has failed to meet his burden to establish jurisdiction over his
appeal.5
¶11 For the reasons set forth above, we vacate the initial decision and dismiss
the appeal for lack of jurisdicti on.6
5 In light of this finding, we exercise our discretion not to dismiss the agency’s petition
for review regardless of whether the agency complied with the administrative judge’s
interim relief order. PFR File, Tabs 3, 5, 6; see Lovoy v. Department of Health and
Human Services , 94 M.S.P.R. 571 , ¶ 28 (2003) (declining to dismiss an agency’s
petition for review for failure to provide interim relief when the issue of the Board’s
jurisdiction over the appeal was not yet resolved). To the extent the appellant’s
pleadings on review include a motion to dismiss the agency’s petition for review based
on an alleged failure to provide interim relief, such a motion is, therefore, denied.
6 In his response to the agency’s petition for re view, the appellant reasserts that, even if
the agency had proven its charge, it still nonetheless violated his due process rights.
PFR File, Tab 6 at 6 n.3 . Because we find that the Board lacks jurisdiction over this
appeal, we cannot consider the appel lant’s due process violation claim. See Rivera v.
Department of Homeland Security , 116 M.S.P.R. 429 , ¶ 16 (2011) .
7
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
imm ediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar d ays of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the iss uance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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
9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the lin k below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 “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.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows ap pellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PENTZ_RUSSELL_C_AT_0752_19_0322_I_1_FINAL_ORDER_2050905.pdf | 2023-07-18 | null | AT-0752 | NP |
2,891 | https://www.mspb.gov/decisions/nonprecedential/PENTZ_RUSSELL_C_AT_0752_20_0286_I_1_FINAL_ORDER_2050911.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RUSSELL C. PENTZ,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0752 -20-0286 -I-1
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bienvenido Banchs , Mandeville, Louisiana, for the appellant.
Joshua L. Klinger , Esquire, Denver, Colorado, for the appellant.
John Cummings , Esquire, Columbia, South Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of the agency action removing him from his dual -status
National Guard Technician position for lack of jurisdiction , consistent with the
provisions of 32 U.S.C. § 709 (f)(4) . On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
reiterates his arguments from below that his removal does not concern his
“military status ,” as evidenced by the fact that he was not dis ciplined in his
military capacity and that the agency treated his removal as a civilian adverse
action. Petition for Review File, Tab 3 at 5-15. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision con tains
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 o f
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the pe titioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the fili ngs in this appeal, we conclude that 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 administrative judge correctly found that the appellant’s appeal, which
is based on his removal for misappropriating Government property and
committi ng larceny while in a deployed Title 10 status, concerned activity
occurring while he was in a military pay status, and thus falls outside of the
Board’s jurisdiction pursuant to 32 U.S.C. § 709 (f)(4). Initial Appeal File,
Tab 14, Initial Decision at 5 -6; see Dyer v. Department of the Air Force , 971 F.3d
1377 , 1381 -82 (Fed. Cir. 2020) . The appellant ’s arguments on review that his
appeal does not concern his military status because he was not disciplined in his
military capacity and because the agency treated his remov al as a civilian adverse
action are misplaced , as the relevant inquiry in determining Board jurisdiction in
this type of appeal is whether the removal was based on activity that occurred
while the appellant was in a military pay status. 32 U. S.C. § 709(f)(4); see
3
Siegert v. Department of the Army , 38 M.S.P.R. 684 , 691 (1988) (stating that an
agency cannot through its own a ction confer or take away Board jurisdiction ).
Here, it is undisputed that the basis for the agency action was activity —the
misconduct set forth above —which occurred while the appellant was on active
duty and thus in a military pay status. Accordingly, w e discern no reason to
disturb the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Pro tection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to see k review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by you r chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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 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
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, nati onal origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement 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 .
Alternat ively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, 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) 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.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. 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.
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
If you are interested in securing pro bono representation for an appeal to
the U.S. Court 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.
Contact information for the courts of appeals can be 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 | PENTZ_RUSSELL_C_AT_0752_20_0286_I_1_FINAL_ORDER_2050911.pdf | 2023-07-18 | null | AT-0752 | NP |
2,892 | https://www.mspb.gov/decisions/nonprecedential/QUESADA_ROBERT_DA_1221_14_0497_W_2_FINAL_ORDER_2050971.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT QUESADA,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-1221 -14-0497 -W-2
DATE: July 18, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Quesada , El Paso, Texas, pro se.
Michelle Morton , El Paso, Texas, 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 individual right of action (IRA) appeal as untimely refiled. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed wit hout 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).
2
BACKGROUND
¶2 On June 20, 2014, the appellant filed an IRA appeal with the Board.
Quesada v. Department of Homeland Security , MSPB Doc ket No . DA-1221 -14-
0497 -W-1, Initial Appeal File (IAF), Tab 1. On March 28, 2016, the
administrative judge issued an initial decision dismissing the appeal without
prejudice at the appellant’s request. IAF, Tab 26 , Initial Decision (ID) . The
refiling de adline was set for May 27, 2016. ID at 3. The refiling deadline passed
without further communication from the appellant.
¶3 On August 11, 2017, the Board’s regional office received a letter from the
appellant postmarked August 9, 2017, which it interpreted as a request to refile
the appeal . Quesada v. Department of Homeland Security , MSPB Docket
No. DA-1221 -14-0497 -W-2, Refiled Appeal File (RAF), Tabs 1-2. The appeal
was reassigned to another administrative judge , who notified the appellant that
his refiling appeared to be untimely, apprised him of his burden on the timeliness
issue, and ordered him to respond.2 RAF, Tab 3. The appellant failed to respond
to the order, and on September 6, 2017, the administrative jud ge issued an initial
decision dismissing the refiled appeal as untimely without good cause shown for
the delay. RAF, Tab 6, Refiled Initial Decision (RID) .
¶4 On December 21, 2017, the Office of the Clerk of the Board received a
letter from the appellant pos tmarked December 18, 2017. Quesada v. Department
of Homeland Security , MSPB Docket No. DA -1221 -14-0497 -W-2, Petition for
Review (PFR) File, Tab 1. The Office of the Clerk of the Board contacted the
appellant and determined that the appellant intended the letter to be a petition for
review of the initial decision. PFR File, Tab 2 at 1. The Office of the Clerk of
the Board notified the appellant that his petition for review appeared to be
untimely, warned him that his petition might be dismissed on that b asis, and
advised him of the legal standards and his burden of proof on the timeliness issue .
3
Id. at 2. The appellant filed a motion to waive the filing deadline, arguing that
his petition was untimely because he was overseas, had trouble accessing his
email, and was medicall y incapacitated. PFR File, Tab 3. The agency has filed a
response.3 PFR File, Tab 4.
ANALYSIS
¶5 A petition for review must be filed within 35 days after the initial decision
is issued, or , if the appellant shows that he received the initial decision more than
5 days after it was issued, within 30 days after the date of receipt. Williams v.
Office of Personnel Management , 109 M.S.P.R. 237 , ¶ 7 ( 2008); 5 C.F.R.
§ 1201.114 (e). The Board will waive the filing deadline for a petition for review
only upon a showing of good cause fo r the filing delay. Lawson v. Department of
Homeland Security , 102 M.S.P.R. 185 , ¶ 5 (2006); 5 C.F.R. §§ 1201.12 ,
1201.114(g). To establish good cause for an untimely filing, a party must show
that he exercised due diligence or ordinary prudence under the particular
circumstances of h is case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay, the reasonableness of his excuse and
his showing of due diligence, whether he is proceeding pro se, and whether he has
presented evidence of the existence of circumstances beyond his control that
affected his ability to comply with the time limits or of u navoidable casualty or
misfortune which similarly shows a causal relationship to his inability to timely
2 The administrative judge originally assigned to this appeal had since retired.
3 After the close of the record on review, the appellant filed a series of motions making
various allegations of misconduct and asking the Board to take action against several
Government employees. PFR File Tab 5. Not only are these motions not permitted
under the Board’s regulations, see 5 C.F.R. § 1201.114 (a), they are irrelevant to the
timeliness issue and are therefore immaterial to the outcome of the appeal. The
appellant’s motions are DENIED.
4
file his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63
(1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶6 In this case, it appears to be undisputed that the petition for review was
untimely filed. The appellant is a registered e -filer, and the initial de cision was
served on him electronically on September 6, 2017 —the date i t was issued. RID;
RAF, Tab 7; see 5 C.F.R. § 1201.4 (i)-(n). Therefore, the deadline for filing the
petition for review was October 11, 2017. See 5 C.F.R. § 1201.114 (e) (35 -day
deadline for filing a petition for review). T he December 18, 2 017 petition for
review was untimely by 73 day s—a very significant delay. See Summerset v.
Department of the Navy , 100 M.S.P.R. 292 , ¶ 7 (2005) (explaining that a filing
delay of 33 days is significan t.).
¶7 The appellant gives several explanations for the filing delay , including that
that he had no email access because he was overseas and his email account had
been hacked. PFR File, Tab 3 at 1. W e find that this explanation does not
establish good cause. First of all, the appellant does not give the dates of his
overseas travel . We therefore lack sufficient information to determine whether
his travels might have accounted for some, any, or all o f his filing delay . Cf.
Miller v. Department of Homeland Security , 110 M.S.P.R. 258 , ¶ 18 (2008)
(finding that appellant failed t o show good cause for his untimely filing when ,
among other things, he did not give the dates of his alleged hospitalization ).
Second, the appellant does not explain where he traveled to that he was unable to
access his email . Internet and email services are generally available overseas ,
and we find insufficient information to conclude that the appellant’s travels left
him unexpectedly incommunicado for more than 73 days . As for the appellant’s
allegation that his email account was hacked, although such an event might
disrupt his email access for a time, the re is no evidence to show that he informed
the Board of this issue in a timely matter . Cf. Walker v. Department of the Air
Force , 109 M.S.P.R. 261 , ¶ 7 (2008) ( indicating that t he appellant’s failure to
notify the administrative judge of a change in her email address did not constitute
5
excusable neglect related to her untimely petition for review). The appellant
asserts that the administrative judge originally assigned to this appeal was aware
that his email had been hacked and that he was overseas.4 PFR File, Tab 3 at 1.
However, there is no documentary evidence in the recor d to support the
appellant’s assertion, and in any event, that administ rative judge retired in
January 2017. Nonetheless, accepting as true this assertion, the appellant had
more than enough time to straighten out the issues with his email before the
petition for review filing deadline 8 months later. The appellant has not
explained how his alleged email access problems prior to the refiling of his
appeal affected his ability to timely file his petition for review.
¶8 The appellant also argues that he suffer s from migraine headaches that
impair his ability to participate in normal activities such as work and jury duty.
Id. at 1, 3 -4. However, as the Office of the Clerk of the Board informed the
appellant, to establish that an untimely filing was the result of an illness, he must :
(1) identify the time period during which he suffered from the illness; (2) submit
medical evidence showing that he suffered from the alleged illness during that
time period; and (3) explain how the illness prevented him from timely filing his
petition or a request for an extension of time. PFR File, Tab 2 at 8 n.1; see Lacy
v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998). The appellant’s
assertion that he suffers from migraine headaches, without any medical evidence
to show that he suffered from this condition during the relevant time period, is
insufficient to show that his headaches could accoun t for the entirety of the
73-day filing delay at issue. See Gonzalez v. Department of Veterans Affairs ,
111 M.S.P.R. 697 (2009 ); see also Perrot v. Department of the Navy , 84 M.S.P.R.
4 The appellant asserts that he was never informed that his appeal had been reassigned
to a different administrative judge. PFR File, Tab 3 at 1. We disagree. The appellant
was informed of the reassignment in the August 15, 2017 acknowledgment order for his
refiled appeal. RAF, Tab 2.
6
468, ¶ 6 (1999) ( stating that m edical evidence proffered to show that an untimely
filing was the result of illness must address the entire period of the delay ).
¶9 Considering all of the evidence on the timeliness issue, we find that
although he is proceeding pro se, the length of the delay is significant , and the
appellant has no t established good cause for it. Accordingly, we dismiss the
petition for review as untimely filed. This is the final decision of the Merit
Systems Protection Board regarding the timeliness of the petition for review. The
initial decision remains the fi nal decision of the Board regarding the timeliness of
the appellant’s refiled appeal. RID.
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 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 th at forum for more information.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the Federal
Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
8
Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office 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:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other 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.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). (3) Judicial review pursuant to the Whistleblower
Protection Enhancement Act of 2012 . This option applies to you only if you
have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C.
§ 2302 (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, exclu ding all other issues , then you may file a petition
for judicial review either with the U.S. Court of Appeals for the Federal Circuit
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act , signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit co urt 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
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 pe tition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | QUESADA_ROBERT_DA_1221_14_0497_W_2_FINAL_ORDER_2050971.pdf | 2023-07-18 | null | DA-1221 | NP |
2,893 | https://www.mspb.gov/decisions/nonprecedential/SMITH_SHELLY_S_SF_0752_14_0085_I_3_FINAL_ORDER_2050275.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHELLY S. SMITH,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -14-0085 -I-3
DATE: July 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shelly S. Smith , Monterey, California, pro se.
Michael L. Halperin , Esquire, Monterey, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petitio n for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedur es or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 employed as an Assistant Professor in the Hebrew
Department at the agency’s Defense Langu age Institute Foreign Language Center
(DLIFLC) in Monterey, California. Smith v. Department of the Army , MSPB
Docket No. SF -0752 -14-0085 -I-1, Initial Appeal File (IAF) , Tab 10 at 17 . The
agency proposed the appellant’s removal from her position based on three
charges: (1) creating a disturbance (four specifications); (2) discourtesy (two
specifications); and (3) failure to follow instructions (one specification). Id.
at 11-15. After reviewing the appellant’s written response and affording her two
oral r esponses, the deciding official sustained the proposal and removed the
appellant from her position. Id. at 7-9.
¶3 The appellant timely appealed her removal to the Board. IAF, Tab 1 . The
appeal was dismissed without prejudice twice to afford the parties more time to
prepare for a hearing and as a result of an injury the appellant suffered. IAF,
Tab 15; Smith v. Department of the Army , MSPB Docket No. SF -0752 -14-0085 -
I-2, Appeal File, Tabs 1, 17 . After the second refiling, the administrative judge
held a hearing and issued an initial decision sustaining all of the specifications
and charges and upholding the removal. Smith v. Department of the Army , MSPB
3
Docket No. SF -0752 -14-0085 -I-3, Appeal File (I -3 AF), Tabs 22-26, Tab 29,
Initial Decision (ID) at 4 -15. The administrative judge also found that the
appellant failed to prove her affirmative defenses of alleg ed due process
violations and equal opportunity employment (EEO) retaliation. ID at 15-22.
She also found that the agency proved that the c harges bore a nexus to the
efficiency of the service and that the penalty of removal was reasonable. ID
at 22-27.
¶4 The appellant has filed a petition for review challenging the administrative
judge’s credibility findings and reasserting her claim that the agency violated her
due process rights in the removal process . Petition for Review (PFR) File, Tab 10
at 3-20.2 The agency has filed an opposition to the appellant’s petition, to which
she has replied. PFR File, Tabs 14 -15.
2 In her petition for review, the appellant makes various general claims of retaliation,
PFR File, Tab 10 at 4, 11 -12, Tab 15 at 5, 11, 13 -14, but does not appear to directly
dispute the administrati ve judge’s findings regarding the alleged EEO retaliation claim,
ID at 19 -22. In the initial decision, the administrative judge stated that the appellant
could prove her EEO retaliation claim through direct evidence, circumstantial evidence,
or both. ID at 19 -21; see Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 42
(2015). However, after the Board’s decision in Savage , in which it discussed these
different types of evidence, the Board subsequently held that all evidence belongs in a
single pile and must be evaluated as a whole. See Gardner v. Department of Veterans
Affairs , 123 M.S.P.R. 647 , ¶ 29 (2016). Here, we find no prejudicial error in the
administrative judge’s discussion of direct versus circumstantial evidence because her
analysis of all of the relevant evidence reflects a consideration of the record as a whole.
ID at 21 -22. Further, after our review of the record, we discern no reason to disturb the
administrative judge’s finding that the appellant failed to prove by preponderant
evidence that retaliation for prior EEO activity was a motivating factor in the agency’s
removal action. Id.; see Savage , 122 M.S.P.R. 61 2, ¶ 41. Because we discern no error
with the administrative judge’s motivating factor analysis or conclusion regarding this
claim, we do not reach the question of whether retaliation was a “but -for” cause of the
removal action. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 ,
¶¶ 22-25.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The agency proved all three charges by preponderant evidence.
¶5 Generally, an agency is required to prove its charges in an adverse action
appeal by preponderant evidence. 5 U.S.C. § 7701 (c)(1)(B). 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). After
our review of the record and in consideration of the appellant’s arguments on
review, we agree with the administrative judge that the agency proved all three
charges by prepondera nt evidence.
Charge one: creating a disturbance
¶6 Regarding the charge of creating a disturbance, the agency alleged in
specification one that during a faculty meeting held by her first -line supervisor,
the appellant was disruptive, uncooperative, and defiant. IAF, Tab 10 at 11. The
agency also alleged in specification one that the appellant was confrontational
and accused her first -line supervisor of discriminating against her and blocking
her “free communication.” Id. In specification two, the agency alleged that the
appellant made unwarranted inquir ies into personal employee matters such as
leave use and absences that caused colleagues undue concern. Id. In
specifications three and four, the agency alleged that the appellant inappropriately
interrupted another teacher’s classroom on two separate oc casions while he was
teaching and stated that the classroom was too loud and made her unable to
concentrate. Id. at 11 -12. The fourth specification also adds that after
interrupting the classroom for the second time, the appellant proceeded to have a
loud conversation just outside the classroom, prompting the teacher to ask the
appellant to lower her voice so that his class could concentrate. Id. at 12.
¶7 In the initial decision, the administrative judge considered the relevant
documentary evidence , including emails, memoranda, and handwritten notes
related to the facts alleged in charge one . ID at 6 -10; IAF, Tab 9 at 14 -15, 19-25.
5
She also discussed the relevant testimony provided by the appellant, who she
found to be not credible. ID at 6-10. In addition, t he administrative judge
considered testimony from the appellant’s first-line supervisor, her former team
leader who also was present at the meeting detail ed in specification one, the
coworker with whom the appellant made inquiries regarding lea ve usage and
absences who is discussed in specification two, and the teacher referenced in
specifications three and four. Id. As discussed by the ad ministrative judge, all of
this testimony appears consistent with what was alleged in the proposal notice.
Id.; I-3 AF, Tab 22, Hearing Compact Disc (HCD). The administrative judge
found the witn ess’s testimony to be specific, detailed, consistent with the record,
and not inherently improbable . ID at 6 -10. Based on the foregoing, the
administrative judge found that the agency proved specifications one through four
by preponderant evidence, and she sustained the charge. ID at 7 -10.
¶8 On review, the appellant challenges the administrative judge’s credibility
findings regarding her first -line supervisor and generally argues that she was
“heavily and closely coached” at the hearing and that she was not a credible
witness. PFR File, Tab 10 at 11 -13. She also challenges the credibility findings
regarding the appellant’s former team leader who was present at th e meeting
described in specification one and the employee with whom the appellant spoke
concerning personal employment matters as discussed in specification two.
PFR File, Tab 15 at 4-6. When an administrative judge has held a hearing and
has made credib ility determinations that were explicitly or implicitly based on the
witness’s demeanor while testifying, the Board must defer to those credibility
determinations and may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Purifoy v. Department of Veterans
Affairs , 838 F.3d 1367 , 1372 -73 (Fed. Cir. 2016); Haebe v. Department of
Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Here, the a dministrative judge
appropriately relied on the factors set forth in Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987) , to assess wi tness credibility and found these
6
witnesses to be credible. ID at 6-10. Given the administrative judge’s
demeanor -based findings, we find that the appellant has failed to provide a
“sufficiently sound” reason to disturb these conclusions.
¶9 The appellant also submits on review unauthenticated emails intended to
impeach the testimony of the teacher whose classr oom the appellant interrupted
as detailed in specifications three and four , thereby trying to undermin e his
credibility. PFR File, Tab 10 at 22 -23. The Board generally will only consider
new evidence submitted on review that is material and not a vailable when the
record closed. 5 C.F.R. § 1201.115 (d). Evidence offered on a petition for review
merely to impeach a witness’s credibility is generally not considered new and
material. Brow n v. Department of the Navy , 71 M.S.P.R. 479 , 482 (1996).
Moreover , even after our review of the emails, we find them to be immateri al.
The substance of the emails deals with the degree to which the t eacher used the
classroom and details of a faculty dance and has no relevance to the facts alleged
by the agency in charge one . PFR File, Tab 10 at 22 -23. Accordingly, we find
the appel lant’s arguments to be without merit, and we affirm the administrative
judge’s findings regarding charge one. ID at 6-10; see Purifoy , 838 F.3d
at 1372 -73.
Charges two and three: discourtesy and failure to follow instructions
¶10 Regarding charge two, discourtesy, the agency alleged in specification one
that the appellant was disrespectful and passive aggressive in her conversations
with her first -line supervisor and the assistant dean concerning her displeasure
with not receiving a congratulatory email for her team’s graduating class. IAF,
Tab 10 at 12. The specification also alleged that the appellant’s supervisor
reminded the appellant that she had sent a congratulatory card and flowers and
that the supervisor asked the appellant to focus on her job , rather than worry
about receiving a congratulatory email. Id. In specification two, the agency
alleged that the appellant was disrespectful, defiant, and argumentative with her
supervisor during a performance -review discussion. Id.
7
¶11 Regarding charge three, failure to follow instructions , the agency alleged
that the appellant’s supervisor asked her to schedule her meeting on an EEO
matter after 3:00 p .m. to minimize disruption to her teaching schedule, but the
appellant later requested last-minute perm ission to attend a 9:00 a .m. meeting on
the EEO matter. Id. at 13. The agency argues that the appellant did not seek
clarification or reconsideration of her supervisor’s request, and it asserts that the
appellant failed to follow her supervisor’s instruc tion regarding the appropriate
time to schedule the meeting. Id.
¶12 In the initial decision, the administrative judge considered the relevant
docu mentary evidence for charge two, including a series of emails between the
appellant, her supervisor , and the assistant dean regarding the congratulatory
email, and an email from the appellant’s supervisor wherein she outlined w hat
occurred at the performance -review session. ID at 11 -13; IAF, Tab 9 at 26 -31.
She also considered the relevant documentary evidence for charge three,
including a series of emails related to the appellant’s request to attend the EEO
meeting at 9:00 a .m. ID at 14; IAF, Tab 9 at 32 -36. The administrative judge ,
moreover, discussed the relevant testimony from the appellant and h er supervisor,
and she found that the supervisor’s testimony , which largely comported with the
alleged facts in the proposal notice, was specific, detailed, consistent with the
record, not inherently improbable, and, therefore, credible. ID at 11 -15. Thus,
the administrative judge found that the agency proved all of the specifications
included in charges two and three, and she su stained both of those charges. ID
at 13, 15.
¶13 The appellant does not appear to dispute the facts alleged in charges two
and th ree and generally asserts, as discussed above, that her supervisor was not a
credible witness. PFR File, Tab 10 at 11 -13. We already have found that the
appellant has failed to provide a “sufficiently sound” reason to encroach on the
deference owed to th e administrative judge’s credibility determinations,
supra ¶ 8, and w e reiterate that finding here , see P urifoy , 838 F.3d at 1372 -73;
8
Haebe , 288 F.3d at 13 01. Accordingly, we will not disturb the administrative
judge’s findings regarding charges two and three.
¶14 Based on the foregoing, we agree with the administrative judge that the
agency proved all three of its charges by preponderant evidence. Despite the
appellant’s argument on review that the administrative judge inadequately
analyzed and gave little or insufficient weight to relevant evidence, and arrived at
the wrong findings and conclusions, PFR File, Tab 15 at 14, we find that her
argumen ts amount to nothing more than mere disagreement with the
administrative judge’s conclusions, and we fi nd no basis to distu rb these findings,
see, e.g., 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); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same). In addition, the administrative judge’s
failure to mention all of the evidence of record does not mean that she did not
consider it in reaching her decision. Marques v. Department of Health and
Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
1985) (Table).
The appellant failed to prove that the agency violated her due process rights.
¶15 The appellant argued before the administrative judge , and argues again on
review , that the agency violated her due p rocess rights in several ways. I-3 AF,
Tab 19 at 4-5; PFR File, Tab 10 at 3-19. The appellant’s due process arguments
on review can be summarized as follows: the deciding official did not adequately
consider the materials she provided in her written response to the proposed
removal ; the deciding official was imp roperly influenced in her decision by other
agency officials; and she did not receive several documents relied upon by the
agency in arriving at the decision to remove her from her position . PFR File,
Tab 10 at 3-19. After our review of the record and in consideration of the
appellant’s arguments on review, we find that s he has failed to prove that the
9
agency violated her due process rights as alleged. See 5 C.F.R.
§ 1201.56 (b)(2)(i)(C) .
Whether the appellant’s replies to the proposal notice were
adequately considered
¶16 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. Cleve land Board of Education v. Loudermill , 470 U.S. 532 , 542 546
(1985). Here, the appellant does not dispute that she received a notice of
proposed removal, that she submitted a written response, and that sh e presented
two oral replies; r ather, she argues that the deciding official did not adequately
consider her replies. PFR File, Tab 10 at 4 , 9-10. In the initial decision, the
administrative judg e discussed the deciding official’s testimony that she spent
extensive time reviewing the materia ls submitted by the appellant and ultimately
found that the appellant was provided with an adequate opportunity to present her
case to the deciding official. ID at 16.
¶17 The appellant dedicates a significant portion of her petition for review to
challenging the deciding official’s credibility. PFR File, Tab 10 at 3-6, 11 -12,
18-19. She attempts to highlight inconsistencies in the deciding official’s
testimony c oncerning when the deciding official received and considered the
appellant’s written response and whether she subsequently received the
appellant’s supplemental documentation. Id. at 3, 5 -6. She also points out
alleged inconsistencies in the deciding off icial’s testimony regarding how long
the decision process took and the content and duration of the “separation
meeting” wherein the deciding official informed the appellant of her decision to
remove her. Id. at 15 -19. To support these allegations, the ap pellant points to
deposition testimony juxtaposed with the deciding official’s hearing testimony.
Id. at 3, 5, 15. The deposition transcript, however, is not included in the record.
PFR File, Tab 16. We therefore decline to consider the appellant’s credibility
arguments . See Brown , 71 M.S.P.R. at 482 ; 5 C.F.R. § 1201.115 (d). Given the
10
administrative judge’s demeanor -based credibility determinations , we will not
disturb her findin g that the deciding official was a credible witness and that she
adequately considered the appellant’s written and oral responses pursuant to due
process requirements. ID at 16, 18; see Loudermill , 470 U.S. at 546 ; Purifoy , 838
F.3d at 1372 -73; Haebe , 288 F.3d at 13 01.
Whether the deciding official was improperly influenced
¶18 On review, the appellant also argues that the deciding official was
improperly influenced by other agency officials and by other employees who
provided her with “false accusations” not contained in the proposal notice. PFR
File, Tab 10 at 4, 11 , 16-17. Although an appellant’s right to due process can
extend to ex parte information provided to a deciding official, only ex parte
communications that introduce new and material evidence to the deciding official
constitute due process violations. Ward v. U.S. Postal Service , 634 F.3d 1274 ,
1279 -80 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation ,
179 F.3d 13 68, 1376 -77 (Fed. Cir. 1999). The ultimate question is whether the
information is “so substan tial and so likely to cause prejudice that no employee
can fairly be required to be subjected to a deprivation of prop erty under such
circumstances.” Stone , 179 F.3d at 1377.
¶19 The administrative judge considered this argument below. ID at 17 -18. She
discussed the appellant’s testimony that she believed that her supervisor was
working in concert with the DLIFL C Provost to have her removed, and she
considered the deciding official’s testimony that she relied solely on the removal
notice, the appellant’s wri tten and oral replies, and her discussions with human
resources staff, upon whom she relied for technical guidance. Id. The
administrative judge also considered testimony from the deciding official, the
appellant’s supervisor, and the DLIFLC Provost, whe rein all three witnesses
testified that they did not speak to each other at any time after the proposal notice
was issued. ID at 18 . In observing these agency officials’ testimony, she found
them to be credible. Id.
11
¶20 After our review of the record and the appellant’s challenges to the
administrative judge’s credibility determinations on review , we find that the
appellant has not provided a “sufficiently sound” reason to disturb the credibility
determinations, and so we defer to th em. See Purifoy , 838 F.3d at 1372 -73; see
also Haebe , 288 F.3d at 13 01. Further, we find that the only ex parte
communication proven to have occurred was between the deciding official and
human resources personnel, wherein the deciding official sought technical
guidance and f urther explanation of the Douglas3 factors, HCD (testimony of the
deciding official) .4 We find that the appellant has failed to prove that this
communication was “so substantial and so likely to cause prejudice” that she
could not fairly be required to be subjected to a deprivation of property under
such circumstances. Stone , 179 F.3d at 1377 . Accordingly, we will not disturb
the administrative judge’s findings in this regard .
Whether the appellant received the documents relied upon by the
deciding off icial in arriving at her decision
¶21 On review, the appellant also argues that the deciding official’s notes from
the oral responses and notes from any other agency official should have been
delivered to her with the final decision. PFR File, Tab 10 at 6 -8. Specifically,
the appellant argues that the deciding official did not forward her notes until the
appellant requested them in discovery. Id. at 7. She also argues that two other
agency officials, one who was present during the oral responses and another who
was present at the “separation meeting, ” both took handwritten notes that were
never provided to her. Id. at 7-8.
3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981) , the Board
provided a nonexhaustive list of 12 factors to be considered when assessing a penalty .
4 The deciding official testified that she was new to the process of having to remove an
employee and sought assistance to help her further understand the nature of the Douglas
factors because she believed that they were “not necessarily 100% clear on the surface .”
HCD (testimony of the deciding offic ial).
12
¶22 We find the appellan t’s arguments to be unpersuasive. By the appellant’s
own admission, the deciding official provided her with the notes in response to
the appellant’s discovery request. Id. at 7. We have found no evidence in the
record that the appellant requested the no tes prior to discovery, and she has
pointed to no law, rule, or regulation that would require the deciding official to
provide the appellant with her notes without being requested to do so and we
know of none . See 5 C.F.R. § 752.406 (c) (requiring the agency to maintain
copies of summaries of the employee’s oral reply to furnish to the Board or the
employee upon request ). Further, even if the agency erred in not providing any
additional n otes from other agency officials who were present at the appellant’s
oral re sponses and “separation meeting, ” we find that this does not constitute a
due process violation . The appellant has not provided any evidence proving that
the agency’s alleged failure to provide her with the notes interfered with her
notice of the agency’s charges against her or that it deprived her of a meaningful
opportunity to respond to the charges . See Loudermill , 470 U.S. at 5 46. Having
found no due process violation, we must also consider whether the agency
committed harmful procedural error. Stone , 179 F.3d at 1377 -78. Procedural
error warrants reve rsal of an agency’s action when the appellant establishes that
the agency committed a procedural er ror, whether regulatory or statutory, that
likely had a harmful effect on the outcome of the case before the agency. Powers
v. Department of the Treasury , 86 M.S.P.R. 256 , ¶ 10 (2000); 5 C.F.R.
§ 1201.56 (c). Here, even if we assume that the agency committed a procedural
error, the appel lant did not show that the agency’s failure to provide her with any
notes that may have been taken by the two agency officials in question had a
harmful effect on the outcome of her removal action.5 As a result , we find that
the appellant’s argument fails in this regard.
5 The appellant also appears to argue that the deciding official erred in not submitting
her notes directly to human resources personnel following the oral responses . PFR File,
Tab 10 at 7 -8. However, t he appellant has not pointed to any law, rul e, or regulation
13
The appellant failed to show any error in the agency’s penalty determination.
¶23 On review, the appellant makes two arguments concerning the agency’s
penalty determination. First, given the agency’s reliance on prior discipline in
selecting the penalty of re moval, IAF, Tab 10 at 13, the appellant argues that two
previous suspensions from 2007 and 2013 we re not legitimate suspensions, PFR
File, Tab 10 at 19. Second, she argues that other employees have similarly
caused disturbances and were either not discipl ined or received less discipline.
Id. at 19 -20. We find both arguments to be meritless.
¶24 Regarding the appellant’s prior discipline argument, the 2007 suspension
was not included in the proposal notice, and there is no evidence that it was relied
upon by the deciding official in arriving at her decision. IAF, Tab 10 at 13.
Regarding the 2013 suspension, id., the appellant alleged that the deciding
official in that suspension , who is also the deciding official in the instant action,
retaliated against her for her EEO activity, I-3 AF, Tab 11 at 395. The appellant
also alleged that her supervisor manipulated her colleagues and other empl oyees
to turn them against her. Id. at 7, 19. The Board ’s review of a previous
disciplinary action relied upon by th e agency to assist in determining the
appropriate penalty for the instant action is limited to determining whether it was
clearly erroneous. Guzman -Muelling v. Social Security Administration ,
91 M.S.P.R. 601 , ¶ 15 (2002). The administrative judge considered this argument
below and found that the appellant’s allegations “lack sufficient specificity” to
demonstrate that the 201 3 suspension was clearly erroneous. ID at 26. We have
reviewed the record, and without any additional evidence or argument being
presented by the appellant on review, we agree with the administrative judge.
Accordingly, we discern no error by the agency in assessing the appellant’s prior
discipline in its decision to remove her from her position.
that imposes such a requirement on the deciding official , and we know of none .
Accordingly, we find the appellant’s argument to be without merit.
14
¶25 The appellant’s second argument, that other employees engaged in
disruptive behavior and received lesser or no discipline, is similarly without
merit. The appellant makes four arguments regarding disparate penalties. First,
she alleges that several teachers in the Hebrew D epartment engaged in “conduct
[that] caused [a] major disruption ” and that only one of them was reprimanded
and suspended. PFR File, Tab 10 at 19. Second, she argues that the teacher
whose classroom she disrupted also disrupted her classroom, but he was never
disciplined. Id. at 19 -20. Third, she argues that another em ployee “violated tests
security safety [sic] ” and received a “ligh tly phrased [w]arning letter.” Id. at 20.
Lastly, she argues that another employee mad e an inappropriate joke and only
received verbal counseling. Id.
¶26 We find that the appellant has not provided sufficient information to prove
a claim of disparate pen alties. The record does not appear to contain any
substantiating evidence proving the appellant’s claims that the alleged
comparators actually engaged in the conduct alleged, that the alleged conduct was
similar to the appellant’s misconduct, and that the alleged comparators received a
lesse r penalty or were not disciplined at all for their conduct. Further, the
appellant has not provided any details, such as when the alleged misconduct
occurred, who the employees’ supervisors were, or any other fact s indicating that
they were similarly situated to the appellant. As a result , we find that there is no
evidence that the agency treated similarly situated employees differently. In any
event, the consistency of the penalty with those imposed upon other employees
for the same or similar offenses is simply one of a non exhaustive list of 12 factors
that are relevant for consideration in determining the appropriateness of a penalty.
Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981) .
The administrative judge did not err in denying some of the appellant’s witnesses.
¶27 The appellant also argues on review that the administrativ e judge abused
her discretion when she denied several of the appellant’s requested witnesses.
PFR File, Tab 15 at 13 -14. An administrative judge has wide discretion to
15
control the proceedings, including the authority to exclude testimony she believes
would be irrelevant, immaterial, or unduly repetitious. Vaughn v. Department of
the Treasury , 119 M.S.P.R. 605 , ¶ 12 (2013) ; 5 C.F.R. § 1201.41 (b). The Board
has held that in order to obtain reversal of an initial decision on the ground that
the administrative judge abused her discretion in excluding evidence, the
petitioning party must show on review that relevant evidence, which could have
affected the outcome, was disallowed. Vaughn , 119 M.S.P.R. 605 , ¶ 12 .
¶28 Here, the administrative judge approved five of the appellant’ s witnesses
and provided her with an opportunity to submit additional information regarding
four other witnesses. I -3 AF, Tab 16 at 2. The administrative judge also allow ed
the appellant to provide additional information for the 11 witnesses that were
denied. Id. It does not appear that the appellant submitted any additional
evidence on the 4 witnesses on whom the administrative judge had not yet ruled,
or for the 11 witnesses that she excluded. Regarding those four witnesses, we
find that the administrative judge’s ultimate denial of those witnesses can
partially be attributed to the appellant’s own failure to provide supplemental
information on their relevance and not to any error by the administrative judge.
See Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 18 (2016) ,
clarified by Pridgen v. Office of Management and Budget , 2022 MSPB 31 ,
¶¶ 23-24. Regarding the remaining witnesses, t he appellant’s vag ue assertion s on
review that the administrative judge erred in disallowing these witnesses do not
show that their testimony woul d have been relevant, material, not repetitious, or
that they could have affected the outcome of the case . PFR File, Tab 15 at 13-14.
Therefore, we find that the appellant has failed to show that the administrative
judge abused her discretion in disallowing some of her witnesses.
¶29 We have considered the appellant’s other arguments on review, but we
conclude that a different outc ome is not warranted. Accordingly, we affirm the
initial decision.
16
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your c laims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the M erit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review yo ur case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Ci rcuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Ap peals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
17
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals f or the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prot ection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
18
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office 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
19
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.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C . 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained w ithin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an 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.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
20
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Cou rtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SMITH_SHELLY_S_SF_0752_14_0085_I_3_FINAL_ORDER_2050275.pdf | 2023-07-17 | null | SF-0752 | NP |
2,894 | https://www.mspb.gov/decisions/nonprecedential/VARNADO_SHIRLEY_ANN_AT_0752_13_0039_B_1_REMAND_ORDER_2050351.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHIRLEY ANN VARNADO,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
AT-0752 -13-0039 -B-1
DATE: July 17, 2023
THIS ORDER IS NONPRECEDENTIAL1
Hewitt Smith , Tampa, Florida, for the appellant.
Christopher M. De Bono , Esquire, and Marcia N. Tiersky , Esquire,
Springfield, 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 April 21, 2017 remand
initial decision, which dismissed as moot her appeal from the denial of a
within -grade increase (WIGI) . For the reasons discussed below, we GRANT the
appellant’s petition for rev iew, VACATE the remand 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 judg es are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 in accor dance
with this Remand Order.
BACKGROUND
¶2 This case has an extensive procedural history that is set out more fully in
the Board’s January 6, 2017 Remand Order. Varnado v. Department of Justice ,
MSPB Docket No. AT -0752 -13-0039 -M-1, Remand Petition for Review File,
Tab 10, Remand Order (RO) , ¶¶ 3-7. The sole remaining issue is the agency’s
February 2007 denial of the appellant’s WIGI. Varnado v. Merit Systems
Protection Board , 603 F. App’x 963, 967 -68 (Fed. Cir. 2015); RO, ¶ 10; Varnado
v. Department of Justice , MSPB Docket No. AT -0752 -13-0039 -M-1, Remand File
(M-1 RF), Tab 21 at 101-02, 107 . The administrative judge found that this claim
is moot in the April 21, 2017 remand initial decision that is currently before us on
review. Varnado v. Department of Justice , MSPB Docket No. AT -0752 -13-0039 -
B-1, Remand File (B -1 RF) , Tab 14, Remand Initial Decision (RID) at 1-7.
¶3 Before filing the underlying appeal, the appellant challenged the WIGI
denial in a May 2007 equal employment opportunity (EEO) complaint. B-1 RF ,
Tab 6 at 20 -21, 27; Varnado v. Depart ment of Justice , MSPB Docket No. AT-
0752 -13-0039 -I-1, Initial Appeal File (IAF) , Tab 1 at 3. Although she requested
that the agency issue a final agency decision on her EEO complaint , it failed to do
so. B -1 RF, Tab 6 at 67. She subsequently filed a Title VII complaint in district
court, but did not specifically raise her WIGI denial as an issue in her district
court complaint.2 Id. at 71 -72. It appears that both parties believed the WIGI
denial would be litigated if the district court case went to a trial. For example,
the agency referenced the WIGI denial in its answer to the complaint, the
appellant conducted discovery on the WIGI denial , and both parties included
2 After the appellant filed in district court, the agency issued a letter advising her that it
was dismissing her EEO complaint because she had filed a Federal district court
compla int. B -1 RF, Tab 6 at 75. The agency notified her of her appeal rights, but did
not include notice of her right to request a hearing before the Board. Id. at 75 -76.
3
documentation concerning the WIGI denial in their list of trial exhibits . Id. at 84,
95-99, 179, 190 .
¶4 The agency filed a motion for summary judgment and a reply in support of
its motion , neither of which reference d the appellant’s WIGI denial claim .3 The
appellant filed a reply to the agency’s motion and an amended reply , both of
which identified the WIGI denial among the adverse actions at issue . Id. at 101,
104-05, 126, 162, 164 -65. The district court judge granted the agency’s motion
for summary judgment without referencing the appellant’s WIGI denial claim.
Varnado v. Mukasey , No. 08 -61331, 2010 WL 2196263 (S.D. Fla. June 1, 2010);
B-1 RF, Tab 7 at 4-11. The appellant filed an appeal to the Eleventh Circuit
Court of Appeals, which the court dismissed for failure to prosecute. B-1 RF,
Tab 7 at 36-37.
¶5 Turning back to the instant appeal, the administrative judge’s April 21,
2017 remand initial decision dismissed the appeal as moot. RID at 1, 6 -7.
Specifically, he found that the agency had retroactively granted the appellant’s
WIGI and paid her back pay and interest. RID at 3; M -1 RF, Tab 26 at 11,
Tab 32 at 6 -7. He also found that any compensatory damages that the appellant
might seek for her EEO claims concerning the WIGI denial were precluded by
collateral estoppel in light of the district court decision. RID at 3 -6.
¶6 The app ellant filed a petition for review challenging , among other things,
the administrative judge’s applying collateral estoppel and dismissing her appeal
as moot . Varnado v. Department of Justice , MSPB Docket No. AT -0752 -13-
0039 -B-1, Remand Petition for Revie w (B-1 RPFR ) File, Tab 1 at 8-15. The
agency filed a response opposing the petition. B-1 RPFR File, Tab 6.
3 The parties did not provide the agency’s motion for summary judgment or its reply in
support of its motion ; however, the Board has obtained cop ies of both pleadings . See
5 C.F.R. § 1201.64 (providing that an administrative judge may take official notice of
matters that can be verified).
4
¶7 The Board then issued an order informing the parties that there remain ed a
question of whether the Board has jurisdiction over the appeal . B-1 RPFR File,
Tab 9 at 1. Both parties responded to the Board’s jurisdictional order.4 B-1
RPFR File, Tabs 12-13.
DISCUSSION OF ARGUME NTS ON REVIEW
The Board has jurisdiction over this appeal .
¶8 The administrative judge found that the Board has jurisdiction over the
appellant’s WIGI denial claim because the appellant requested reconsideration of
the WIGI decision, and that request was denied . M-1 RF, Tab 19 at 1 , Tab 21
at 101-02, 107 . The parties do not dispute this finding on review , and we decline
to dis turb it . 5 U.S.C. § 5335 (c); see Goines v. Merit Systems Protection Board ,
258 F.3d 1289 , 1292 (Fed. Cir. 2001) (interpreting 5 U.S.C. § 5335 (c) as
requiring an employee to request reconsideration of a WIGI withholding before
appealing such action to the Board); Brookins v. Depart ment of the Interior ,
2023 MSPB 3 , ¶ 6 (same) ; 5 C.F.R. § 531.410 (d) (requiring an agency to provide
an employee with no tice of Board appeal rights upon denying a request for
reconsideration of a WIGI denial) .
¶9 On review, the Office of the Clerk of the Board issued an order to the
parties to address an additiona l jurisdictional requirement. B-1 RPFR File, Tab 9.
As explained in that order, under the Board’s case law at the time, if an employee
was covered by a collective bargaining agreement (CBA) that provide d for review
of WIGI denials under the grievance pro cedure , and if she did not allege
prohibited discrimination , then the grievance procedure was the exclusive means
for resolving the dispute . See Hunt v. Department of Veterans Affairs ,
88 M.S.P.R. 365 , ¶ 8 (2001). However, the Board has since overruled Hunt on
4 The appellant filed a motion for leave to correct her response to the Board’s order that
includes the requested correction. B -1 RPFR File, Tab 14. The a gency has not opposed
the motion. We grant the appellant’s motion and find that the correction does not
change the outcome of this appeal.
5
this basis . Brookins , 2023 MSPB 3 , ¶¶ 8-10. Further, b oth parties responded that
the appellant was not covered by a CBA that permits bargaining unit employees
to grieve a WIGI denial , and the appellant alleges that the WIGI denial was
discriminatory . B-1 RPFR File, Tab 12 at 4 -5, Tab 13 at 4; see McCann v.
Department of the Navy , 57 M.S.P.R. 288 , 294 (1993) (recognizing that the Board
is not divested of jurisdiction by the terms of a CBA providin g for exclusivity of
remedy when an appellant alleges discrimination ). Accordingly, we affirm the
administrative judge’s jurisdictional finding .
This appeal is not moot and must be remanded for further adjudication of the
appellant’s EEO claims .
¶10 Collateral estoppel, or issue preclusion, is appropriate when (1) the issue is
identical to that involved in the prior action, (2) the issue was actually litigated in
the prior action, (3) the determination on the issue in the prior action was
necessary to the resulting judgment, and (4) the party against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party to the prior action or as one whose interests were
otherwise fully represented in that action. Kroeger v. U. S. Postal Service ,
865 F.2d 235 , 239 (Fed. Cir. 1988); McNeil v. Department of Defense ,
100 M.S.P.R. 146 , ¶ 15 (2005). The “actually litigated” element is satisfied when
the issue was “properly raised by the pleadings, was submitted for determination,
and was determined.” Banner v. United States , 238 F.3d 1348 , 1354 (Fed. Cir.
2001); see Luna v. Department of the Air Force , 87 M.S.P.R. 232 , ¶ 8 (2000)
(observing that the “actually litigated” element requires that the issue must have
been contested by the parties and resolved by the adjudicator) .
¶11 Here, we find that the appellant’s EEO claims regarding the WIGI denial
were not actually litigated in the district court action , as required for applying
collateral estoppel. The agency did not squarely raise the issue in its motion for
summary judgmen t. The appellant’ s references to her WIGI denial in her
opposition to the agency’ s motion were insufficient to clearly place the issue
6
before the district court judge . Further, the district court decision granting the
agency’s motion did not mention the WIGI denial despite referencing other
specific acts of alleged discrimination. Varnado , 2010 WL 2196263 , at *2-*3;
B-1 RF, Tab 7 at 7-9; see, e.g., Johnson v. Department of the Air Force ,
92 M.S.P.R. 370 , ¶ 14 (2002) (finding that an issue was not actually litigated by
the administrative judge when she only discussed the procedural history of the
issue ); Luna , 87 M.S.P.R. 232 , ¶ 8 (finding that an issue was not actually litigated
in a prior Board appeal when the administrative judge in the earlier appeal only
mentioned the issue and found that it was not properly raised by the appellant ).
Therefore, we find that collateral estoppel does not preclu de the appellant’s WIGI
claim.
¶12 If an appellant raises a claim for compensatory damages that the Board has
jurisdiction to adjudicate, the agency’s complete rescission of the action appealed
does not afford her all of the relief available before the Board, and thus, the
appeal is not moot. Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶ 8 (2016).
Here, because the appellant’s potential entitlement to compensatory damages
based on her EEO claims regarding the WIGI denial remains unresolved , her
appeal is not moot . Id., ¶¶ 9, 19 -20 (finding that the Board has the authority to
award compensator y damages for discrimination and EEO reprisal claims);
5 C.F.R. §§ 1201.201 (d), 1201.202(c) (indicating that the Board may award
compensatory damages to a prevailing party who is found t o have been the
subject of intentional discrimination ). Accordingly , we vacate the April 21, 2017
remand initial decision dismissing the appeal as moot and remand the appeal for
further adjudication of the appellant’s WIGI denial . On remand, the
administ rative judge shall allow the parties to develop the record and, if
nece ssary, he should hold a hearing . See Hess v. U.S. Postal Service ,
123 M.S.P.R. 183 , ¶¶ 9-10 (2016) (remanding the appellant’s EEO claims for a
hearing because she raised a cognizable claim of discrimina tion in connection
7
with an otherwise appealable action). He should then issue a new remand initial
decision on the merits of the appellant’s WIGI denial claim.5
¶13 In light of our finding s here, we find it unnecessary to reach the appellant’s
remaining arg uments on review regarding the application of collateral estoppel,
alleged procedural errors, and the appropriate standard of proof . B-1 RPFR File,
Tab 1 at 10-18. On remand, s he may again raise issues regarding the adjudication
of her appeal to the extent they are relevant to the remaining issues. Moreover,
we decline to revisit our prior finding that the appellant’s removal appeal was
untimely filed. Id. at 17 -19; Varnado , 603 F. App’x at 965 -67.
ORDER
¶14 For the reasons discussed ab ove, 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
5 The administrative judge may readopt the prior finding of Board jurisdiction. | VARNADO_SHIRLEY_ANN_AT_0752_13_0039_B_1_REMAND_ORDER_2050351.pdf | 2023-07-17 | null | AT-0752 | NP |
2,895 | https://www.mspb.gov/decisions/nonprecedential/MLADENOV_ALEXANDER_SF_0752_17_0330_I_2_FINAL_ORDER_2050374.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALEXANDER MLADENOV,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -17-0330 -I-2
DATE: July 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Justin Prato , Esquire, San Diego, California, for the appellant.
Geoffrey D. Chun and Kristopher M. Cronin , San Diego, 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
sustained his removal. On petition for review, the appellant argues that he was
not on notice of the standard of care for his position and that he did not violate
the standard of care. He also contends that another employee who committed a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
similar offense was not treated as harshly as he was . 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. Th erefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain re view of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although 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 In Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14, the Board held that the relevant
inquiry in determining whether an agency has disciplined employees disparately is
whether the agency knowingly and unjustifiably treated the employees differently. The
administrative judge in the instant case did not have the benefit of Singh when she
issued the initial decision . Nevertheless, we affirm the administrative judge’s ultimate
conclusion that the appellant failed to establish his disparate penalties claim.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
appropriate for your situat ion and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claim s and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general ru le, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cour t of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the F ederal 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 at torney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is a ppealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the d istrict court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to represen tation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, whi ch can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Comm ission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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 Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C ), or (D),” then you may file a 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 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 Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MLADENOV_ALEXANDER_SF_0752_17_0330_I_2_FINAL_ORDER_2050374.pdf | 2023-07-17 | null | SF-0752 | NP |
2,896 | https://www.mspb.gov/decisions/nonprecedential/WEIDHASE_MARK_SF_0752_17_0153_I_1_FINAL_ORDER_2050385.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARK WEIDHASE,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -17-0153 -I-1
DATE: July 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Jennifer R. Hong , Esquire, Los Angeles, California, for the agency.
Stanislaus A. Gonsalves , Esquire, Oak Brook Terrace, 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
sustained the removal action. Generally, we grant petitions such as this one only
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
in the following circumstances: the initial decision contains erroneous findings
of mater ial 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 decis ion were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude t hat 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 Prior to his removal, the appellant was a Criminal Investigator, GS -14, with
the agency’s Immigration and Customs Enforcement division in the Los Angeles
Field Office. Initia l Appeal File (IAF), Tab 1 at 1. On August 31, 2014, he was
involved in a traffic collision when the drive r of another vehicle rear -ended his
personal vehicle. Hearing Transcript (HT) at 100:16 -101:8 (testimony of the
appellant) . Following the collision, the appellant observed that the suspect was
Hispanic, spoke limited English, had a Mexican voter identification card in his
wallet, and seemed reluct ant to involve law enforcement. HT at 102:2 -103:2.
The appellant asked the suspect where he wa s from and t he suspect responded “de
alla” (which translates to “from over there”). HT at 103:23 -104:12. The
appellant obtained his agency law enforcement credentials from his vehicle and
identified himself as a law enforcement officer. HT at 104:24 -105:5. The
suspect immediately took flight and the appellant pursued and detained him until
local law enforcement could arrive. HT at 104:24 -105:5 , 107:20 -22. In the
3
course of these events, the appellant suffered an inj ury to his knee. IAF, Tab 8
at 178-79.
¶3 The appellant subsequently left two voicemail messages for his supervisor.
HT at 169:25 -170:12 , 170:23 -171:6 (testimony of the appellant) . On
September 1, 2014, the appellant sent an email to his supervisors recounting the
incident. IAF, Tab 8 at 2 36. On September 2, 2014, the appellant submitted a
Form CA -1 (“Federal Employee’s Notice of Traumatic Injury and Claim for
Continuation of Pay/Compensation”) to the Office of Workers’ Compensation
Programs (OWCP) in which he attested that he sustained a work -related injury to
his knee during the incident. Id. at 178-79. The appellant was asked to submit
additional information to OWCP and, on September 23, 2014, the appellant
submitted a detailed statement regarding the incident. IAF, Tab 9 at 194 -95. The
appellant’ s supervisor reported his belief that the appellant had filed a false
OWCP claim and the Office of Professional Responsibility ( OPR ) conducted an
investigation. IAF, Tab 8 at 135.
¶4 On March 15, 2016, the agency proposed to remove the appell ant based on
the following charges: (1) Misuse of Law Enforcement Authority (three
specifications) ; and (2) Lack of Candor (four specifications). Id. at 127-33. The
agency charged the appellant with misuse of his law enforcement authority when
he display ed his law enforcement credentials, engaged in a foot pursuit, and
detained an individual while off duty and without the proper authority. Id. at 128.
The agency also charged the appellant with lack of candor when he gave
incomplete or incorrect informat ion in voicemails and emails to his supervisor, on
forms related to his workers’ compensati on claim, and during his OPR interview.
Id. at 128-29. On November 15, 2016, the agency issued a decision letter
sustain ing the charges and finding that removal wa s an appropriate penalty. Id.
at 21-31. The appellant was removed effective immediately upon receipt of the
decision letter. Id. at 22.
4
¶5 The appellant timely filed an appeal of his removal with the Board . IAF,
Tab 1. Following a hearing, the administra tive judge issued an initial decision
sustaining the removal action. IAF, Tab 27, Initial Decision (ID) at 23. The
administrative judge found that the agency did not prove any of the three
specifications underlying the charge of misuse of law enforcement authority, and
accordingly, did not sustain the charge . ID at 12-13. Of the four lack of candor
specifications, the administrative judge found that the agency did not prove
specifications 1 and 4 but she sustained specifications 2 and 3. ID at 13-20. She
thus sustained the lack of candor charge. ID at 20. She also found that the
removal penalty was within the parameters of reasonableness and was the
maximum reasonable penalty for the sustained charge. ID at 21 -23.
¶6 On petition for review, the appell ant challenges the administrative judge’s
findings on the two lack of candor specifications that were sustained. Petition for
Review (PFR) File, Tab 3. The appellant argues that the agency failed to meet its
burden to prove the remaining two lack of cand or specifications. Id. at 12. The
agency has filed a response, to which the appellant has replied. PFR File,
Tabs 6-7.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly sustained the lack of candor charge .
¶7 Lack of candor “is a broade r and more flexible concept ” than falsification.
Ludlum v. Department of Justice , 278 F.3d 1280 , 1284 (Fed. Cir. 2002).
Although lack of cando r does not require an affirmative misrepresentation, it
involves an element of deception. Id. at 1284 -85. An agency alleging lack of
candor must prove the following elements: (1) that the employee gave incorrect
or incomplete information; and (2) that h e did so knowingly. Fargnoli v.
Department of Commerce , 123 M.S.P.R. 330 , ¶17 (2016).
¶8 Under specification 2 of the lack of candor charge, the agency stated the
following :
5
On September 2, 2014, you completed and submitted the Form CA -1
for an injury that occurred on August 31, 2014 following a traffic
collision where you were rear -ended. On the form, you stated that
you were rear -ended by a suspect and that the “suspect stated he did
not have a driver’s license and stated he was unlawfully present, then
fled the scene” after you identified yourself as an [Homeland
Security Investigations (HSI)] Special Agent. You were less than
truthful in your statement on the Form CA -1 because you did not
mentioned [sic] the fact that the suspect who rear -ended you stated
he was unlawfully present in your previous commun ications to your
supervisor Assistant Special Agent in Charge (A SAC) . . . .
Specifically, you left t wo voicemail messages for ASAC . . . on the
night of August 31, 2014. In your voicemail mes sages, you did not
inform ASAC . . . that [the suspect] said he was unlawfully present
in the United States. Additionally, on September 1, 2014, you sent
ASAC . . . an email detailing the circumstances surrounding the
traffic collision and the subsequent detention of [the suspect] and
you did not indicate that the suspect stated he was unlawfully
present. Your statement on the Form CA -1 constitutes a lac k of
candor.
IAF, Tab 8 at 129.
¶9 Here, t he administrative judge found that the agency proved that the
appellant made an incorrect statement on the Form CA -1 and that he did so
knowingly. ID at 16. Importantly, t he administrat ive judge noted that the
appellant testified during the hearing that, in his encounter with the suspect on
August 31, 2014, the sus pect did not state that he was unlawfully present or an
illegal alien. HT at 159:2 -4, 173:8 -11 (testimony of the appellant) . Thus, the
administrative judge found that, at the time the appellant completed the
Form CA-1 and wrote that “the suspect . . . stated he was unlawfully present,” the
appellant was knowingly providing incorrect information. ID at 16 ; IAF, Tab 8
at 178-79. The administrative judge acknowledged that the suspect’s statements
to the appellant may have created a reasonable suspicion that the s uspect was
unlawfully present. ID at 16. However, the administrative judge properly noted
that a reasonable suspicio n that the suspect was unlawfully present is not the
same as the suspect stating he was unlawfully present. Id. We thus discern no
6
basis for disturbing the administrative judge’ s findings that the appellant
knowingly provided incorrect information on the Form CA -1. See Fargnoli ,
123 M.S.P.R. 330 , ¶ 17. Based on the foregoing, we find that the administrative
judge properly sustai ned specification 2 of the lack of c andor charge.
¶10 Specification 3 of the lack of candor charge states as follows :
On or about September 23, 2014, you submitted corresp ondence to
the claims examiner . . . with the Office of Workers’ Compensation
Program. In that correspondence, you stated that an accident
occurred as described in the Riverside Sheriff’s Department Incident
Report. You further stated, “Based on his demeanor, body language
and evasive respo nse to my question regarding his immigration
status,” you identified yourself as a Special Agent for the
Department of Homeland Security, at which time [the suspect ] took
flight. However, in your September 1, 2014, email to your
supervisor ASAC . . . you did not mention questioning [the suspect]
about his immigration status or the fact that he gave an evasive
response. During your March 26, 2015, interview with the Special
Agent from the Office of Professional Responsibility, you stated that
you did not q uestion [the suspect] about his immigration status
because he fled before you had a chance to do so. Your statement in
your September 23, 2014 correspondence to the claims examiner
constitutes a lack of candor.
IAF, Tab 8 at 129.
¶11 Here, the administrative judge found that the agency proved that the
appellant made incorrect or incomplete statements in the September 23 , 2014
letter to OWCP when he stated that, during the August 31, 2014 incident, the
suspect gave an “evasive response to my ques tion regarding his immigration
status .” ID at 18. In addition, the administrative judge found that this incorrect
statement was made knowingly . Id. Specifically, a fter reviewing all of the
appellant’s statements , the administrative judge found no evide nce that the
appellant e ver asked the suspect a question “regarding his immigration status ”
and that, accordingly , there was also no evidence that the suspect provided any
“evasive response” to said question. Id. Moreover, the administrative judge
correc tly noted that the appellant testified under oath during his interview with
7
OPR that he did not question the suspect about his immigration status or ask him
where he was from . ID at 18; IAF, Tab 9 at 79 -80. We thus discern no basis for
disturbing the administrative judge’s findings that the appellant knowingly
provided incorrect information in the September 23 , 2014 letter to OWCP . See
Fargnoli , 123 M.S.P.R. 330 , ¶ 17. Based on the foregoing, we find that the
administrative judge properly found that the agency proved specification 3 of the
lack of candor charge. Because the administ rative judge correctly sustained
specifications 2 and 3, we find that she correctly sustained the lack of candor
charge. See Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir.
1990) (explaining that, when there is one charge with multiple factual
specifications set out in support of the charge, proof of one or more, but not all,
of the supporting specifications is sufficient to sust ain the charge) .
The administrative judge correctly found that the agency established the nexus
requirement and that the penalty of removal was reasonable under the
circumstances.
¶12 In addition to proving the charge by preponderant evidence, the agency
must also establish the existence of a nexus between the misconduct and the
efficiency of the service, and that the penalty of removal is reasonable. 5 U.S.C.
§ 7513 (a); Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 18 (2013);
Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 -07 (1981). The nexus
requirement, for purposes of determining whether an agency has shown that its
action promotes the efficiency of the service, means there must be a clear and
direct relationship between the articulated grounds for an adverse action and
either the employee ’s ability to accomplish his duties satisfactorily or some other
legitimate Government interest. Scheffler v. Department of the Army ,
117 M.S.P.R. 499 , ¶ 9 (2012), aff’d, 522 F. App ’x 913 (Fed. Cir. 2013 ). We
agree wi th the administrative judge’s findings that the agency has met the nexus
requirement here. ID at 21; see Ludlum v. Department of Justice , 87 M.S.P.R. 56 ,
8
¶ 28 (2000) (finding that lack of candor strikes at the very heart of the
employer -employee relationship ), aff’d, 278 F.3d 1280 (Fed. Cir. 2002) .
¶13 Regarding the penalty, w hen, as here, not all of the charges are sustained,
the Board will consider carefully whether the sustained charges merit the penalty
imposed by the agency. Suggs v. Department of Veterans Affairs , 113 M.S.P.R.
671, ¶ 6 (2010) , aff’d , 415 F. App’x 240 (Fed. Cir. 2011) . In such circumstances,
the Board may mitigate the agency’s penalty to the maximum reasonable penalty
so long as the agency has not indicated in either its final decision or in
proceedings before the Board that it desires a lesser penalty be imposed on fewe r
charges. Id. In doing so, the Board may not disconnect its penalty determination
from the agency’s managerial will and primary discretion in disciplining
employees. Id.
¶14 In the initial decision, the administrative judge discussed the deciding
officia l’s consideration of the seriousness of the offense and its relation to the
appellant’s duties as a law enforcement officer. ID at 21 -22; IAF, Tab 8 at 27 -31;
HT 14:25 -16:8 (testimony of the deciding official) . Specifically, she relied on his
testimony t hat “the ability to provide credible and factual testimony and recounts
of events is central to the law enforcement position which [the appellant] holds as
he may be called to testify in court.” ID at 22; IAF, Tab 8 at 27.
Additionally, the administrativ e judge credited the deciding official’s testimony
that the appellant’s lack of candor presented an integrity issue that resulted in a
loss in the appellant ’s ability to perform his duties. ID at 22. She, like the
deciding official, considered mitigating factors such as the appellant’s many years
of service, lack of disciplinary history, and good performance, but concluded that
they do not outweigh the seriousness of the offense. Id.; IAF, Tab 8 at 27 -28;
HT 16:12 -17:6, 20: 11 -25 (testimony of the decidi ng official) . Finally, she
observed that the deciding official did not testify regarding what penalty he
would have imposed if only the lack of candor charge was sustained. ID at 23.
As such, she found that removal was still the appropriate penalt y. ID at 22 -23.
9
¶15 The appellant does not challenge the administrative judge’s finding s on
review , PFR File, Tab 1, and we discern no reason to disturb them, ID at 21 -23.
The Board has long placed particular emphasis on the nature and seriousness of
the miscond uct and its relationship to the employee’s duties, position, and
responsibilities. See Arena v. U.S. Postal Service , 121 M. S.P.R. 125 , ¶ 6 (2014)
(stating that, in evaluating the penalty, the Board will consider, first and
foremost, the nature and seriousness of the misconduct and its relationship to the
employee’s duties, position, and responsibilities ), aff’d , 617 F. App’x 996 (Fed.
Cir. 2015) (Table) ; see Gaines v. Department of the Air Force , 94 M.S.P.R. 527 ,
¶ 9 (2003) (same) . Further, it is well s ettled that law enforcement officers are
held to a higher standard of honesty and integrity. Prather v. Department of
Justice , 117 M.S.P.R. 137 , ¶ 36 (2011). Thus, the seriousness of the appellant’s
lack of candor, as explained by the deciding official, particularly in light of his
position as a law enforcement officer, is of paramount consideration . Based on
the foregoing, we ag ree with the administrative judge that removal is the
maximum reasonable penalty for the sustained charge. ID at 23; see Carlton v.
Department of Justice , 95 M.S.P.R. 633 , ¶¶ 7 -9 (finding that the removal penalty
was reasonable when a law enforcement officer demonstrated lack of candor and
conduct unbecoming).
¶16 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
10
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the 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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
11
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services 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
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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,
12
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
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 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.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
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 “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.
The Al l 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 | WEIDHASE_MARK_SF_0752_17_0153_I_1_FINAL_ORDER_2050385.pdf | 2023-07-17 | null | SF-0752 | NP |
2,897 | https://www.mspb.gov/decisions/nonprecedential/SHUMAKER_MICHAEL_R_DC_3443_16_0816_I_1_FINAL_ORDER_2050397.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL R. SHUMAKER,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-3443 -16-0816 -I-1
DATE: July 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael R. Shumaker , Fairfax, Virginia, pro se.
Stephanie E. Sawyer , 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 his employment practices 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 materia l 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 application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decisio n were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not a vailable when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude tha t
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 applied for the position of Deputy Executive Director,
Program Accountability and Risk Management, a Senior Executive Service (SES)
position at the agency . Initial Appeal File (IAF), Tab 1 at 5, Tab 8 at 18 -24. He
was informed that his application did not indicate that he met the minimum
requirements for the position. IAF, Tab 5 at 15-16. The appellant subsequently
contact ed several agency officials in the Executive Services Division who
reviewed his application and confirmed that he lacked the necessary experience
for the position. Id. at 10-22.
¶3 The appellant timely filed this appeal , and he requested a hearing. IAF,
Tab 1. Below, he alleged that the ag ency official s who reviewed his application
violated the basic requirements for employment pr actices set forth in 5 C.F.R.
§ 300.103 and agency Management Directive 3030.1 by misreading his r ésumé,
erroneously finding that he did not meet the minimum qualifications for the
position, and failing to forward his application to the SES rating panel. IAF,
Tab 5 at 3-4, 10-14. Without holding the requested hearing, the administ rative
3
judge found that the Board does not have jurisdiction to adjudicate the
employment practices used to review the appellant’s application for a n SES
position . IAF, Tab 18, Initial Decision (ID) at 3. The administrative judge found
in the alternative that, even if the appellant had been seeking a position in the
compe titive service, instead of an SES position, the Board lacked jurisdiction
over his appeal because it concerned a single unfavorable personnel action rather
than a practice or the applicat ion of a practice, and he did not show that the
Office of Personnel Management (OPM) had any involvement in the
admi nistration of the alleged employment practices. ID at 4.
¶4 The appellant has filed a petition for review and a supplemental petition for
review , the agency has filed a response, and the appellant has filed a reply.
Petitio n for Review (PFR) File, Tabs 1 -2, 4, 7. The agency also has filed a
motion to strike the appellant’s supplemental peti tion for review. PFR File,
Tab 5. The appellant th ereafter filed a motion to request leave to file his
supplement al petition . PFR File, Tab 6. We grant the appellant’s motion to file a
supplemental petition for review, and we deny the agency’s motion to strike that
submission .
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule , or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Generally, a nonselection is
not appealable directly to the Board.2 Pridgen v. Office of Management and
Budget , 117 M.S.P.R. 665 , ¶ 6 (2012) . However, an applicant for employment
2 On review, the appellant challenges the administrative judge’s characterizing the
agency’s action as a nonselection , and he submits evidence that the agency canceled the
vacancy announcement . E.g., PFR File, Tab 1 at 5 , 18, 23. Because we find that the
Board lacks jurisdiction over this employment practices appeal, we need not address
this evidence or argument.
4
who believe s that an employment practice3 applied to him by OPM violates a
basic requirement in 5 C.F .R. § 300.103 is entitled to appeal to the Board.
Burroughs v. Department of the Army , 116 M.S.P.R. 292 , ¶ 5 (2011) ; 5 C.F.R.
§ 300.104 (a). The Board has jurisdiction over an employment practices appeal
pursuant to 5 C.F.R. § 300.104 (a) when the fo llowing two conditions are met:
(1) the appeal must concern an employment practice that OPM is inv olved in
administering; and (2) the appellant must make a nonfrivolous allegation4 that the
employment practice violated one of the “basic requ irements” for employment
practices set forth in 5 C.F.R. § 300.103 . Burroughs , 116 M.S.P.R. 292 , ¶ 15 ;
Mapstone v. Department of the Interior , 110 M.S.P.R. 122, ¶ 7 (2008) .
¶6 The appellant asserts on review that the regulation at 5 C.F.R. § 300.101
allows him to challenge an employment practice that affects his selection to any
initial appointment within the F ederal Government , including to an SES position .
PFR File, Tab 1 at 6 -7. This argument is unavailing. The stated purpose of this
regulation is to establish principles to govern employment practices “that affect
the recruitment, measurement, ranking, and selection of individuals for initial
appointment and competitive promotion in the competitive service .” 5 C.F.R.
§ 300.101 (emphasis added). Moreover, the Board has held that the regul ations at
5 C.F.R. part 300 only apply to the competitive service. Walters v. U.S. Postal
Service , 65 M.S.P.R. 115, 118 (1994).5 As the administrative judge noted in the
3 The regulation at 5 C.F.R. § 300.101 states that “the term ‘employment practices’
includes the development and use of examinations, qualification standards, tests, and
other measurement instruments. ”
4 A nonfrivolous allegation is an assertion that, if proven, could es tablish the matter at
issue. 5 C.F.R. § 1201.4 (s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, is plausible on its face, and is material to the legal issues in the appeal.
Id.
5 We are not persuaded by the appellant’s assertion that the administrative judge
improperly relied on Walters in the initial decision. PFR File, Ta b 1 at 8; ID at 3.
5
initial decision, p ositions in the SES are specifically excluded from the
competitive service. ID at 3 (citing, among other things, 5 U.S.C.
§ 2102 (a)(1) (C) and 5 C.F.R. § 212.101 (a)(1)) ; see Dean v. Department of the Air
Force , 620 F. App’x 959 , 959 (Fed. Cir. 2015) (per curiam) (explaining that
“[c]ivil service positions in the executive branch may be classified as one of
several types including : ‘competitive service,’ ‘ specifically excepted from the
competitive service, ’ filled through an appointment requiring Senate
confirmation, and [SES]”).6 We therefore agree with the administrative judge
that the regulations at 5 C.F.R. part 300 do not apply to selecting individuals for
SES positions , including the position at issue in this appeal .
¶7 Even if we determined that the position to which the appellant applied was
somehow in the competitiv e service, a different outcome is not warranted. We
have considered the appellant’s assertion that the agency committed an appealable
employment practice when it misapplied a valid OPM requirement under 5 C.F.R.
part 300. E.g., PFR File, Tab 1 at 9-17. The appellant states a correct
proposition of law , see, e.g., Richardson v. Department of Defense , 78 M.S.P.R.
58, 61 (19 98); Banks v. Department of Agriculture , 59 M.S.P.R. 157, 160 (1993),
aff’d , 26 F.3d 140 (Fed. Cir. 1994) (Table) , but he has not persuad ed us that the
administrative judge erred . Even though the term “employment practice” is to be
construed broadly, it does not encompass an individual agency action that is not
made pursuant to a rule or practice, such as an irregularity in the selection
process. Prewitt v. Merit Systems Protection Board , 133 F.3d 885 , 887 (Fed. Cir.
1998); see Richardson , 78 M.S.P.R. at 61 (finding that the appellant’s challenge
to how the agency rated and handled her individual application is not within the
Board’s jurisdiction ). We construe the appellant’s contention that the agency
6 The Board may follow a nonprecedential decision of the U.S. Court of Appea ls for the
Federal Circuit when , as here, it finds its reasoning persuasive. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453 , ¶ 11 n.5 (2016).
6
misread his résumé or experience as an irregularity in the selection process , and
the Board therefore lacks jurisdiction to adjudicate such claims in an employment
practices appeal . See Prewitt , 133 F.3d at 887 (concluding that the alleged error
by an agen cy employee in misidentifying the appellant’s race and the race of
other applicants “is more aptly characterized as an irregularity in the selection
process ” and is not an employment practice that is appealable to the Board under
5 C.F.R. § 300.104 (a)); see also Banks , 59 M.S.P.R. at 160 (holding that the
appellant’s bare allegation that the agency failed to fully consider his education
and experience in making a selection did not establish that the agency subjected
him to a n employment practice that fell within the Board ’s jurisdiction) .
¶8 We also have considered the appellant’s argument that OPM was involved
in administering the employment practice because the vacancy announcement was
posted on the USAJOBS website . PFR File, Tab 1 at 9 -11. This argument is also
unavailing. To be appealable, OPM’s involvement in administering an agency’s
alleged employment practice must be “significant.” Prewitt , 133 F.3d at 888 . We
are not persuaded that posting the vacancy announcement on the USAJOBS
website constitutes “significant” involvement in the agency’s selection process by
OPM . Id. Compare Maule v. Merit Systems Protection Board , 812 F.2d 1396 ,
1398 (Fed. Cir. 1987 ) (finding that OPM made a “pivotal decision” that
ultimately resulted in the nonselection), with Dowd v. Office of Personnel
Management , 745 F.2d 650 , 651 (Fed. Cir. 1984) (n oting that OPM “played no
part” in the agency’s nonselection). Because we agree with the administrative
judge that the Board lacks jurisdiction over this appeal, she properly dismissed
the appeal without holding the requested hearing.7 ID at 5.
7 In our analysis of the jurisdictional issue, we have considered the supplemental
petition for review , which includes a September 2016 report from the Government
Accountability Office regarding converting political appointees to career positions and
a Nove mber 27, 2016 newspaper article which appeared to discuss Congressional
concerns regarding converting political appointees to career positions . PFR File, Tab 2
7
¶9 Finally, the appellant argues that the administrative judge ’s order to stay
discovery and decision to deny his two motion s for sanctions constituted an abuse
of discretion and affected the outcome of this appeal. PFR File, Tab 1 at 20-22;
IAF, Tabs 13 -14, 17 . We disagree. T he Board will not reverse an administrative
judge’ s rulings on discovery matters imposing sanctions absent an abuse of
discretion. Pecard v. Department of Agriculture , 115 M.S.P.R. 31 , ¶ 15 (2010);
Wagner v. Environmental Protection Agency , 54 M.S.P.R. 447 , 452 (1992), aff’d ,
996 F.2d 1236 (Fed. Cir. 1993) (Table). The abuse of discretion standard is “a
very high standard” and allows for “great deference.” Pecard , 115 M.S.P.R. 31 ,
¶ 15. The appellant has not persuaded us that the administrative judge’s rulings
constituted an abuse of discretion. Indeed, the appellant has not persuaded us that
any evidence that he sought to obtain through discovery would affect our decision
on the jurisdictional issue. See Vores v. Department of the Army , 109 M.S.P.R.
191, ¶ 14 (200 8) (explaining that the appellant must show how an administrative
judge’s alleged errors when ruling on discovery matters affected the result
reached below), aff’d , 324 F. App’x 883 (Fed. Cir. 2009). Moreover, the
administrative judge found that, contrary to the appellant’s assertion in his
motions for sanctions, IAF, Tabs 13 -14, the agency’s response to the
acknowledgment o rder was timely filed , ID at 3. For these reasons , we conclude
that the administrative judge did not abuse her discretion when she is sued an
order staying discovery and denied the appellant’s motions for sanctions.
at 9 -16, 18 -20. Even if we determined that this information constituted “new”
evidence, the Board will not grant a petition for review based on new evidence absent a
showing that it is of suffici ent weight to warrant an outcome different from that of the
initial decision . Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). The
appellant has not made such a showing.
8
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 determines the time 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 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:
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.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
10
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
11
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may 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.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 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
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.
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SHUMAKER_MICHAEL_R_DC_3443_16_0816_I_1_FINAL_ORDER_2050397.pdf | 2023-07-17 | null | DC-3443 | NP |
2,898 | https://www.mspb.gov/decisions/nonprecedential/SMITH_WILLIAM_E_DC_1221_16_0589_W_1_FINAL_ORDER_2050403.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM E. SMITH,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-1221 -16-0589 -W-1
DATE: July 17, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elaine L. Fitch , Esquire, Washi ngton, D.C., for the appellant.
Daniel Piccaluga , Esquire, Washington, D.C., 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 his individual right of action (IRA) appeal as settled. For the reasons
discussed below, we GRANT the appellant’s petition for review and AFFIRM the
initial decision AS MODIFIED. Except as expressly MODIFIED by this Final
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no pre cedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 to enter the settlement ag reement into the record for enforcement, we
AFFIRM the initial decision.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 On May 17, 2016, the appellant filed an IRA appeal. Initial Appeal File
(IAF), Tab 1. Prior to any finding regarding the Board’s jurisdiction ove r the
appeal, the parties agreed to settle the appeal. IAF, Tab 8. Consequently, on
November 30, 2016, the administrative judge issued an initial decision,
dismissing the appeal as settled. IAF, Tab 9, Initial Decision (ID). The
administrative judge, h owever, determined that she was unable to enter the
settlement agreement into the record for enforcement purposes because of the
outstanding jurisdictional issue.2 ID at 2.
¶3 The appellant has filed a timely petition for review in which he contends
that t he administrative judge erred in failing to enter the settlement agreement
into the record. Petition for Review File, Tab 1. Attached to his petition, the
appellant includes a January 4, 2017 stipulation from agency counsel, in which
the agency stipulate s that the appellant has established Board jurisdiction over the
underlying appeal. Id. at 7.
¶4 After the initial decision in this case was issued, on January 4, 2017, the
same day that the appellant filed his petition for review, the Board issued
Delorme v. Department of the Interior , 124 M.S.P.R. 123 (2017), in which it held
that the Board retains enforcement authority over settle ment agreements that have
been entered into its record for that purpose, independent of any prior finding of
Board jurisdiction over the underlying matter appealed. Delorme overruled the
Board’s prior decision in Shaw v. Department of the Navy , 39 M.S.P.R. 586 ,
590-91 (1989), which held that an appellant must prove jurisdiction over the
2 Although the administrative judge indicated that the agreement would not be entered
into the record for enforcement purposes, th e initial decision erroneously notified the
appellant of his right to seek enforcement of the settlement agreement by filing a
petition for enforcement. ID at 3.
3
underlying matter appealed before the Board can accept a lawful settlement
agreement into the record for enforcement. Delor me, 124 M.S.P.R. 123 ,
¶¶ 12-13. Thus, under Delorme , an ad ministrative judge may accept a settlement
agreement into the record for enforcement independent of any prior finding of
Board jurisdiction. Id., ¶¶ 19 -21.
¶5 In light of Delorme and the parties’ intent to have the Board exercise
enforcement authority over t he settlement agreement , IAF, Tab 8 at 4, we modify
the initial decision to enter the settlement agreement into the record for
enforcement.
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the ter ms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
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 su ch review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
3 Since the issuance of the initial decision in this matter, the Board may have updated
the n otice 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
provid e legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decisi on, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for mo re information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must subm it your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the c ourt’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
5
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal C ircuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of yo ur discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discr imination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you h ave a representative in this case,
6
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the E EOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method re quiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act o f 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdic tion.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain wh istleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial revie w to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about th e U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representati on
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will 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.
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:
Washin gton, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SMITH_WILLIAM_E_DC_1221_16_0589_W_1_FINAL_ORDER_2050403.pdf | 2023-07-17 | null | DC-1221 | NP |
2,899 | https://www.mspb.gov/decisions/nonprecedential/TOGIA_TAVITA_P_SF_0752_19_0343_I_1_FINAL_ORDER_2049655.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAVITA P. TOGIA,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-0752 -19-0343 -I-1
DATE: July 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gwen Tauiliili -Langkilde , Esquire, Pago Pago, American Somoa, for the
appellant.
Karen D. Glasgow , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINA L ORDER
¶1 The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a 30 -day suspension . On petition for review,
the agency argues that the administrative judge did not weigh the penalty factors
correctly and failed to afford the agency’s penalty determination due deference.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based o n 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 pro cedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established an y 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 have carefully considered the agency’s petition for review, but we find
that the agency has not provided sufficient basis to disturb the administrative
judge’s thorough and well -reasoned analysis. For the reasons explained in the
initial decision , we agree that the agency failed to consider all of the relevant
factors in arriving at its penalty determination and that the maximum reasonable
penalty for the proven misconduct is a 30 -day suspension.
ORDER
¶3 We ORDER the agency to cancel the appellant’s removal and substitute a
30-day suspension . See Kerr v. National Endowment for the Arts , 726 F.2d 730
(Fed. Cir. 1984). Th e 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 Office of Personnel
Management’s regu lations, no later than 60 calendar days after the date of this
3
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 th e 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 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 a sk
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 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 believ es 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).
¶7 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 re sulting 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.
4
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
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read 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 not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a p etition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, o n unlawful discrimination. If so, you may obtain
6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for 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:
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, w ww.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation fo r an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Boar d 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/CourtWeb sites.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 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 underta ken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave tha t 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 interes t is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FL SA, 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. | TOGIA_TAVITA_P_SF_0752_19_0343_I_1_FINAL_ORDER_2049655.pdf | 2023-07-14 | null | SF-0752 | NP |
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