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3,000 | https://www.mspb.gov/decisions/nonprecedential/FURTADO_EDGAR_D_PH_1221_15_0376_C_1_FINAL_ORDER_2043189.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDGAR D. FURTADO,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
PH-1221 -15-0376 -C-1
DATE: June 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edgar D. Furtado , Belmont, Massachusetts, pro se.
Philip Ambrosi , Boston, Massachusetts, 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 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 st atute 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 dis cretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulatio ns, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the administrative judge’s analysis regarding the issue
of a breach of the settlement agreement , we AFFIRM the initial decision.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 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 agre ement
that has been entered into the record in the same manner as a final Board decision
or order. Id. When an appellant alleges noncompliance with a settlement
agreement, the agency must produce relevant material evidence of its compliance
with the agre ement or show that there was good cause for noncompliance. Id.
The ultimate burden, however, remains with the appellant to prove br each by
preponderant evidence. Id.
¶3 We find that the appellant has not met his burden. The appellant argues on
review that the parties signed the settlement agreement on December 22, 2015 ,
and that the agency incorrect ly designated January 25, 2016, as the date the
settlement agreement was executed. Furtado v. Department of Homeland
Security , MSPB Docket No. PH -1221 -15-0376 -C-1, Compliance Petition for
Review (C PFR ) File, Tab 1 at 7. He claims that, in so doing, the agency breached
3
the agreement when it failed to issue him the lump sum payment by the deadline
set in the agreement. Id. As t he administrative judge noted, the appellant may
have signed another preliminary agreement on December 22, 2015 , as a part of
informal negotiations. Furtado v. Department of Homeland Security , MSPB
Docket No. PH -1221 -15-0376 -C-1, Compliance File (CF) , Tab 11, Compliance
Initial Decision (CID) at 6. The record, however, shows that the date of the
settlement agreement is January 25, 2016, and that the appellant and agency
agreed that the agreement would become effective once all parties signed
it—which occ urred on January 28, 2016. Furtado v. Department of Homeland
Security , MSPB Docket No. PH -1221 -15-0376 -W-1, Initial Appeal File (IAF),
Tab 32 at 1, 3 .
¶4 The settlement agreement state s that the parties agree that the agency will
pay the appellant a lump sum within 60 days of the date the agreement was
executed or, if it provide s written notice that a 20 -day payment extension is
required , within 80 days of the date the agreement was executed . IAF, Tab 32
at 2. It is undisputed that the agency did not pay th e appellant within 60 days of
the date the agreement was executed .2 CF, Tab 3 at 8, Tab 7 at 5. The issue is
whether the agency properly provided written notice to the appellant that
additional time was required to effect payment to trigger an additional 20 days to
initiate payment. IAF, Tab 32 at 2. The administrative judge credited the
agency’s version of events, indicating that the agency gave proper notice of its
need for a dditional time to effect payment and complied with the settlement
agreement b ecause it issued the payment on April 7, 2017, or within 80 days of
2 The agency provides documentation, including email exchanges with the appellant,
showing the sequence of events. On March 28, 2016, the agency requested the
appellant’s banking information and add ress to initiate payment. CF, Tab 7 at 14-15.
On April 6, 2016, the agency informed the appellant that it had initiated the payment on
March 28, 2016. Id. at 14. The agency processed the payment by April 7, 2016. Id.
at 11-12. The appellant confirmed that he received the payment on April 8, 2016. CF,
Tab 3 at 5, 8.
4
the date the agreement was executed. CID at 5; CF, Tab 7 at 11-12. W hile we do
not entirely agree with the administrative judge’s reasoning on this matter, we
need not resolve this issue.
¶5 Even assuming the agency breached the agreement, as discussed below, its
actions do not rise to the level of a material breach. Whether there has been a
material breach depends on the extent to which the injured party is depr ived of a
benefit reasonably expected from the agreement. Leeds v. U.S. Postal Service ,
108 M.S.P.R. 113 , ¶ 4 (2008). A breach is material when it relates to a matter of
vital importance or goes to the essence of the agreement. Id.; Galloway v.
Department of Agriculture , 110 M.S.P.R. 311 , ¶ 7 (2008). A minimal delay in
fulfilling the requirements of a settlement agreement is not considered a material
breach. See Burks v. Department of the Interior , 93 M.S.P.R. 94 , ¶ 8 (2002),
aff’d, 85 F. App ’x 217 (Fed. Cir. 2004).
¶6 Here, the agency’s delay in meeting its payment obligation was minimal.
The record shows that the agency initiated the payment on or around the 60 -day
deadline and the delay in the appellant’s receipt of the payment was due to
processing time. CF, Tab 7 at 11 -12, 14 -15. Such a delay does not rise to the
level of a material breac h, especially when , as here, the parties contempla ted that
additional time may be required to process a payment and contracted for an
additional provision to account for a possible delay, and the agency acted upon
the payment at issue and responded to the appellant’ s requests regarding the
status of payme nt. See S helton v. Environmental Protection Agency ,
115 M.S.P.R. 177 , ¶¶ 21 -23 (2010).
¶7 We find that none of the appellant’s addi tional assertions provide a basis to
disturb the initial decision .3 We decline to consider any argument or evidence
3 Under 5 U.S.C. § 1214 (a)(3), an employee is required to seek corrective action from
Office of Special Counsel (OSC) before seeking corrective action from the Board.
Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 8 (2011). To satisf y
the exhaustion requirement, an appellant must provide OSC a sufficient basis to pursue
an investigation which might lead to corrective action. Chambers v. Department of
5
that he submits for the first time on review because he has failed to show that it
was unavailable, despite his due diligence, when the record closed. See Banks v.
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) ; Avansino v. U.S.
Postal Service , 3 M.S.P.R. 211 , 214 (1980); 5 C.F.R. § 1201.115 (d).
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
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
Homeland Security , 2022 MSPB 8 , ¶ 10; see Ward v. Merit Systems Protection Board ,
981 F.2d 521 , 526 (Fed . Cir. 1992); Miller v. Federal Deposit Insurance Corporation ,
122 M.S.P.R. 3 , ¶ 6 (2014). An appellant filing an individual righ t of action 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 c orrective acti on. 5 U.S.C.
§ 1214 (a)(3); Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313 , ¶ 8 (2010).
The appellant alleges that the administrative judge failed to consider that the settlement
agreement prevented him from filing a subsequent OSC complaint and he may be
raising a claim that the agency’s breach of the settlemen t agreement constituted reprisal
for his whistleblowing activities . CPFR File, Tab 1 at 3, 5 -7. Because the appellant
has not exhausted the procedures before OSC, the Board lacks jurisdiction over these
claims . CID at 6; CF, Tab 3 at 11.
4 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.
6
within the applicable time li mit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for 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 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.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, e xcluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your repr esentative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you s ubmit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposi tion of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of is suance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
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 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.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court 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
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 Clerk of the Board | FURTADO_EDGAR_D_PH_1221_15_0376_C_1_FINAL_ORDER_2043189.pdf | 2023-06-22 | null | PH-1221 | NP |
3,001 | https://www.mspb.gov/decisions/nonprecedential/OLIVA_STEVEN_DA_0752_16_0338_I_1_FINAL_ORDER_2043224.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN OLIVA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0752 -16-0338 -I-1
DATE: June 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven Oliva , Fair Oaks Ranch, Texas, pro se.
Joan M. Green , Esquire , Oklahoma City, Oklahoma, 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 . 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
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 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 wh en the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petit ioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 In addition to his petition for review , the appellant submitted a separate
pleading with documents he characterized as new and material evidence . Petition
for Review (PFR) File, Tab s 1, 5, 6, 8 .2 The agency has filed a response. PFR
File, Tab 10. The appellant has replied.3 PFR File, Tab 11.
¶3 On review, the appellant challenges the administrative judge’s findings on
the charge an d on his affirmative defenses. PFR File, Tab 1. We discern no basis
for disturbing the administrative judge’s well -reasoned findings regarding the
charge or the appellant’s affirmative defenses of discrimination and equal
2 The appellant requested leave to supplement his petition for review by further
identifying pertinent evidence already in the record, PFR File, Tab 5 at 3, but the Clerk
denied that request, PFR Fil e, Tab 6. The appellant requested reconsideration, PFR
File, Tab 7, but the Clerk once again denied the request, PFR File, Tab 9.
3 After his reply, the appellant submitted yet another request to supplement the record ,
this time with the initial decision from a separate appeal. PFR File, Tab 12 . That
decision need not be made part of the record in this appeal for us to consider it . See
5 C.F.R. § 1201.64 (providing that an administrati ve judge may take official notice of
matters that can be verified). Therefore, we deny the appellant’s motion. The appellant
also filed a motion to join this appeal with two others he filed “because they all deal
with one [administrative judge] and her a buse of discretion, bias, and misapplication of
law.” PFR File, Tab 15. That motion is similarly denied. See 5 C.F.R. § 1201.36
(discussing when an administrative judge may join cases).
3
employment opportunity (EEO) reprisal.4 As further explained below, we also
agree that the appellant failed to establish his affirmative defenses of
whistleblower reprisal and harmful error.
The appellant failed to prove his w histleblower retaliation claim.
¶4 In an affirmative defense of whistleblower retaliation, an appellant must
first prove by preponderant evidence that he made a disclosu re protected by
5 U.S.C. § 2302 (b)(8) or engaged in activity protected by 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D). See Shibuya v. D epartment of Agriculture ,
119 M.S.P.R. 537 , ¶ 19 (2013) (describing burden shifting in the context of a
disclosure protected by se ction 2302(b)(8)); see also Alarid v. Department of the
Army , 122 M.S.P.R. 600 , ¶ 12 (2015) (recognizing that, after the Whistleb lower
Protection Enforcement Act of 2012 ’s enactment , the same burden -shifting
scheme applies in the context of activities protected by section 2302(b)(9)(A)(i),
(B), (C), or (D)). He also must prove that the protected disclosure or activity was
a contrib uting factor in the challenged personnel action. Alarid , 122 M.S.P.R.
600, ¶ 13.
¶5 If an appellant meets his burden, the burden shifts to the agency to prove by
clear and convincing evidence that it would have taken the same action in the
absence of the appellant’s protected disclosures or activity. Id., ¶ 14. In
determining whether the agency has met this burden, the Board will consider all
the relevant factors, including the following: (1) the strength of the agency’s
evidence in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials involved in the decision; and (3) any
4 With respect to appellant’s affirmative defenses of discrimination and EEO reprisal,
we agree with the administrative judge’s findings that the appellant failed to prove that
either was a motivating factor in the removal action. We need not reach whether the
appellant proved that either discrimination or EEO reprisal were a but -for cause of the
removal. See Pridgen v. Office of Management and Budget , 2022 MSPB 31 . We also
agree with the administrative judge that the appellant failed to prove his other
affirmative defenses.
4
evidence that the agency takes similar actions against employees who did not
engage in such protected activity, but who are otherwise similarly situated. Carr
v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999). The
Federal Circuit has explained that “[e]vidence only clearly and convincingly
supports a conclusion when it does so in the aggregate considering all the
perti nent evidence in the record, and despite the evidence that fairly detracts from
that conclusion.” Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed.
Cir. 2012) .
¶6 Below, the administrative judge applied the burden -shifting scheme
described above. She found that the appellant failed to prove that he made any
protected disclosure s, but did establish that he had engaged in activity protected
by 5 U.S.C. § 2302 (b)(9)(A)(i) by filing two individual right of action ( IRA)
appeals. Initial Appeal File (I AF), Tab 39, Initial Decision ( ID) at 35 -39. She
further found that the appellant established that this protected activity was a
contributing factor to his removal because those IRA appeals were pending when
the agency removed him. ID at 39. Nevertheless, upon shifting the burden, the
administrative judge found that the agency met its burden of proving that it would
have taken the same action in the absence of the appellant’s protected activity.
ID at 39 -42.
¶7 On review, the appellant appears to argue that his whistleblowing set in
motion a series of events that led to the discovery of his misconduct and was,
therefore, a motivating factor in his removal. PFR File, Tab 1 at 8. However, he
has failed to clearly identify what whistleblowing he is referring to, as he merely
identified it as his “January 2015 complaint.” Id. Moreover, th e administrative
judge did not deny the appellant’s whistleblower retaliation claims on the basis of
the motivating factor requirement, so the argument would be unavailing even if it
had any merit. Supra ¶ 6.
¶8 Separately, the appellant now asserts that the agency perceived him as a
whistleblower. PFR File, Tab 1 at 6, 8. He is correct to recognize that the Board
5
has, at times, found that an individual was entitled to whistleblower protections
when he did not actually make protected disclosures but was perceived as having
done so. See, e.g ., Holloway v. Department of the Interior , 82 M.S.P.R. 435, ¶ 15
(1999) ; Mausser v. Department of the Army , 63 M.S.P.R. 41, 44 (1994) ;
Thompson v. Farm Credit Administration , 51 M.S.P.R. 569 , 581 -82 (1991) .
However, we find no instance of the appellant articulating this legal theory
below, so we will not consider it now. See, e.g ., IAF, Ta b 18 at 13, Ta b 34. It is
well settled that the Board need not consider arguments submitted for the fir st
time i n a petition for review absent a showing that the arguments were not
available prior to the close of the record despite due diligence. Banks v.
Department o f the Air Force , 4 M.S.P.R. 268 , 271 (1980) .
¶9 In connection with this new legal theory, the appellant has requested
permission to supplement the recor d for the instant appeal with a decision he
received in a separate Board matter. PFR File, Tab 12 at 4. As a matter of fact,
the appellant has pursued several IRA appeals before the Board that involved the
same alleged disclosures as that which he assert ed in the instant removal appeal,
but different alleged person nel actions and legal theories . See Oliva v.
Department of Veterans Affairs , MSPB Docket No. DA -1221 -15-0520 -W-1,
Initial Appeal File, Tab 52, Initial Decision; Oliva v. Department of Veterans
Affairs , MSPB Docket No. DA -1221 -16-0199 -W-1, Initial Appeal File, Tab 31,
Initial Decision (0199 ID); Oliva v. Department of Veterans Affairs , MSPB
Docket No. DA -1221 -17-0225 -W-1, Initial Appeal File, (0225 IAF), Tab 23,
Initial Decision (0225 ID).
¶10 The ad ministrative judge joined the first two IRA appeal s and issued a
single decision, finding that the appellant failed to meet his burden of proving
that he made a protected disclosure.5 0199 ID at 6 -16. That same administrative
5 Nearly two years after the initial decision for those appeals, t he appellant filed a
petition for review , which the Board dismissed as untimely. Oliva v. Department of
6
judge later issued the initi al decision in this removal appeal in which , as
previously discussed, she considered the appellant’s earlier IRA appeal s as
protected activity. ID at 1, 36 -39. After the close of record in the instant
removal appeal, the appellant filed a third IRA appea l alleging that, inter alia, he
was a perceived whistleblower. E.g., 0225 IAF, Tab 7 at 3, Tab 14 at 1. After
the initial decision was issued in the instant removal appeal and while it was
pending our review, a different administrative judge granted corr ective action in
that third IRA appeal on the basis that the appellant was a perceived
whistleblower.6 0225 ID at 6-9, 23.
¶11 While we have reviewed the decisions from each of these IRA appeals, we
find no basis for concluding that they require a different result in this removal
appeal. As stated above, the Board will not consider the appellant’s new legal
theory that he was a perceived whistleblower because he failed to present it
below, even if that new legal theory was successful in a separate appeal.7
¶12 As a final matter regarding the whistleblower retaliation claims, the
appellant has submitted certain evidence for the first time on review. PFR File,
Tab 8. Under 5 C.F.R. § 1201.115 , the Board generally will not consider
evidence submitted for the first time on review absent a showing that it was
unavailable before the record was closed despite t he party’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). To constitute new
evidence, the information contained in the documents, not just the documents
themselves, must have been unavailable despite due diligence when the record
Veterans Affairs , MSPB Docket No. DA -1221 -15-0520 -W-1, Final Order (May 5,
2023).
6 The appellant filed a fourth IRA appeal, but the parties settled that matter. Oliva v.
Department of Veteran s Affairs , MSPB Docket No. DA -1221 -18-0437 -W-1, Initial
Appeal File (0437 IAF), Tab 52, Initial Decision. The associated settlement agreement
explicitly provided that the agreement did not preclude the appellant from continuing to
pursue his petition for review in the instant appeal. 0437 IAF, Tab 51 at 6.
7 Because the agency did not file a petition for review in the appellant’s third IRA
appeal , the initial decision in that appeal is now final .
7
closed. 5 C.F.R. § 1201.115 (d). Further, to satisfy the “new and mate rial
evidence” criterion for granting a petition for review, the new evidentiary
submission must be of sufficient weight to warrant an outcome different from that
ordered by the administrative judge . Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980) .
¶13 The appellant has not satisfied the aforementioned requirements for his
newly submitted evidence. The evidence includes a recent article describing his
Director and several other agency officials as being under administrative
investigation, seemingly because of some other individual’s whistleblowing, but
we find this evidence immaterial to the appellan t’s whistleblowing claim or this
appeal, generally. PFR File, Tab 8 at 4 -7. The appellant’s newly submitted
evidence also includes affidavits that are dated after the close of record below,
which he describes as relevant to his whistleblower claim. Id. at 8-9. But the
information contained in these documents is not new, and the appellant has not
established its materiality. See 5 C.F.R. § 1201.115 (d) (explaining that, to
constitute n ew evidence on review, the information contained in the documents
that a party submits, and not just the documents themselves, must have been
unavailable when the record closed below). The remaining evidence submitted on
review, which apparently involves matters other than the appellant’s
whistleblower affirmative defense, is unavailing for the same reasons. PFR File,
Tab 8 at 10 -18.
The appellant failed to prove his h armful procedural error claim.
¶14 The Board will reverse a removal action if an appellant shows that the
agency committed a harmful procedural error. 5 U.S.C. § 7701 (c)(2)(A); 5 C.F.R.
§ 1201.56 (c)(1). A harmful erro r is one that is likely to have caused the agency
to reach a conclusion different from the one it would have reached in the absence
or cure of the error. 5 C.F.R. § 1201.4 (r).
¶15 On review, the appellant reasserts that the agency failed to follow
“VHA700,” an apparent reference to the agency’s handbook for administrative
8
investigations. PFR File, Tab 1 at 8; IAF, Tab 20 at 120 -200. According to the
appellant, the agency’s Administrative Inv estigation Board ( AIB) did not validate
the veracity of witnesses, did not interview his witnesses, and was tainted by
individuals with retaliatory animus or conflicts of interest. PFR File, Tab 1
at 8-10. He further argues that the AIB did not adequatel y or appropriately
question him about the matters that the agency ultimately relied on to remove
him, and did not provide him with adequate opportunity to participate in the
investigation. Id. at 9. The administrative judge did not find these arguments
persuasive, and we do not either . ID at 43 -44.
¶16 Although the appellant has referred to the agency’s administrative
investigation handbook, generally, he has failed to identify any specific provision
within that handbook that the agency may have violated. PFR File, Tab s 8-10.
Moreover, while the appellant is essentially arguing that the agency would not
have concluded that he engaged in misconduct if the AIB had taken additional
investigatory measures, that contention is not persuasive in light of the age ncy
proving its case, here, before the Board. Cf. Simmons v. Department of the Air
Force , 99 M.S.P.R. 28, ¶¶ 34-35 (2005) (finding unpersuasive an appellant’s
speculation as to what he migh t have said during an agency’s investigation absent
the agency’s alleged error, and reasoning that the appellant’s hearing testimony
was consistent with what he stated during the investiga tion), aff’d per curiam sub
nom. Gebhart v. Department of the Air Force , 186 F. App’x 996 (Fed. Cir. 2006) .
Accordingly, we find no basis for disturbing the administrative judge’s
well-reasoned findings for the appellant’s harmful error claims.
The admini strative judge properly addressed the agency’s chosen penalty.
¶17 Among those factors that an agency should consider in determining the
appropriate penalty for an employee’s misconduct is his length of service.
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981). In what
appears to be one final argument on review, the appellant summarily asserts that
the administrative judge and deciding official both erred in failing to
9
acknowledge his “30 -year Federal career.” PFR File, Tab 1 at 10. However, this
argument appears to misstate his prior service. The record includes a sworn
statement where in the appellant explained that he worked for the agency between
2000 and 2004, then worked in the private sector for approximately 9 years before
he returned to the agency in 2012, where he remained until his 2016 removal.
IAF, Tab 11 at 503. He testified similarly at the Board hearing. Hearing
Compact Disc , Day 2 (testimony of the appellant). Notes from the appellant’s
oral response to the proposed removal also indicate that during his reply, he
“went over his professional career to include his military experience which
spanned 30 years between private and public organizations.” IAF, Tab 11 at 26.
¶18 Moreover, the record shows that both the deciding official and
administrative judge consider ed the appellant’s prior service, even if neither
described it i n the way he may have preferred. The deciding official completed a
penalty selection worksheet in which he specifically state d that he considered
“years of service” as a mitigating factor. Id. at 22. The administrative judge
similarly acknowledged the a ppellant’s “length of service” as a mitigating factor
in analyzing the reasonableness of the chosen penalty. ID at 50. Accordingly, we
conclude that the appellant has not presented any persuasive basis for disturbing
the agency’s penalty or the administr ative judge’s analysis of the same. See
generally Scheffler v. Department of the Army , 117 M.S.P.R. 499 , ¶ 14 (2012)
(recognizin g that the Board will mitigate a penalty only if the Board finds that the
agency did not weigh the relevant factors or that the penalty clearly exceed s the
bounds of reasonableness) , aff’d , 522 F. App’x 913 (Fed. Cir. 2013 ).
10
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 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
12
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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).
If so, and your judicial petition for review “raises no challenge to the Board’s
13
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.9 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
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.
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.
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 Cler k of the Board | OLIVA_STEVEN_DA_0752_16_0338_I_1_FINAL_ORDER_2043224.pdf | 2023-06-22 | null | DA-0752 | NP |
3,002 | https://www.mspb.gov/decisions/nonprecedential/DIAZDELCASTILLO_ALFONSO_J_DC_1221_16_0507_W_1_FINAL_ORDER_2043228.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALFONSO J. DIAZDELCA STILLO,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-1221 -16-0507 -W-1
DATE: June 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alfonso J. Diazdelcastillo , Brooksville, Florida, pro se.
Aaron Baughman , Esquire, and Carley D. Bell , Esquire, Arlington,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his 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 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.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).
BACKGROUND
¶2 The appellant, a Principal Security Inspector for the agency’s
Transportation S ecurity Administration (TSA) , filed this IRA appeal and
requested a hea ring. Diazdelcastillo v. Department of Homeland Security , MSPB
Docket No. DC-1221 -16-0507 -W-1, Initial Appeal File ( 0507 IAF), Tab 1. The
administrative judge issued an order informing the appellant of his jurisdictional
burden and directing him to file evidence and argument on the issue. 0507 IAF,
Tab 7. Both the appellant and the agency responded.3 0507 IAF, Tabs 13 -25, 29.
In his response , the appellant alleged that the agency had taken 35 personnel
actions against him in retaliation for 3 protecte d disclosures that he made to the
Office of Special Counsel (OSC) in April 2008 . 0507 IAF, Tab 13 at 4-24.
2 Because we so find, we need not address the timeliness of the appellant’s petition for
review . See Edwards v. Department of Homeland Security , 110 M.S.P.R. 243 , ¶ 7 n.*
(2008).
3 As set forth in greater detail in the initial decision, the appellant submitted over 1,400
pages of documents with his jurisdictional response . 0507 IAF, Tab 43, Initial Decision
at 10.
3
¶3 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdict ion. 0507
IAF, Tab 43, Initial Decision ( 0507 ID) at 1, 23. In so doing, the administrative
judge found that the appellant nonfrivolously alleged that two of his three
disclosures to OSC constituted protected disclosures under 5 U.S.C. § 2302 (b)(8) .
0507 ID at 10-14. However , he concluded that the appellant failed to make a
nonfrivolous allegation that either disclosure was a contr ibuting factor in any of
the 35 purporte d personnel actions taken by the agency.4 0507 ID at 1 7-23. In so
concluding, the administrative judge reasoned that the appellant had failed to
provide dates for all but one of these alleged personnel actions, which appeared to
have taken place before the appellant made his protected disclosures.5 0507 ID
at 20-21. The administrative judge also reasoned that the appellant ’s allegations
regarding the personnel actions were “vague and conclusory” and that the
4 Because he so found , the administrative judge declined to make a s pecific finding
regarding whether the appellant had exhausted his administrative remedies with OSC.
0507 ID at 23 n.22.
5 In so reasoning, the administrative judge explained that, in its jurisdictional response,
the agency had asserted that the alleged personnel actions had occurred before the
appellant’s disclosures and that the appellant “[did] not substantively refute the
agency’s contentions [regarding the timing of the alleged personnel actions] .” 0507 ID
at 21; 0507 IAF, Tab 29 at 8-10. A nonfrivo lous allegation is an allegation of
“sufficient factual matter, accepted as true, to state a claim that is plausible on its face.”
Hessami v. Merit Systems Protection Board , 979 F.3d 1362 , 1364, 136 9 (Fed. Cir.
2020). In assessing whether an appellant has made a nonfrivolous allegation, an
administrative judge may consider the agency’ s documentary submissions; ho wever, to
the extent the agency’ s evidence contradicts the appellant’s otherwise adequate prima
facie showing of jurisdiction, the administrative judge may not weigh evidence and
resolve conflicting assertions. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329
(1994) . We find that, to the extent the administrative judge improperly considered the
agency’s pleadings in assessing the contributing factor jurisdictional criter ion, any such
reliance was harmless ; indeed, as discussed herein, regardless of the agency’s assertions
concerning the dates of the alleged personnel actions, the appellant ’s vague allegations
were insufficient to satisfy the subject criterion . 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 rev ersal of an initial
decision).
4
appellant had failed to , among other things, identify the agency officials
responsible for the large majority of the alleged actions. Id.
¶4 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply to the agency’s response.
Diazdelcastillo v. Department of Homeland Security , MSPB Docket No.
DC-1221 -16-0507 -W-1, Petition for Review ( 0507 PFR) File, Tabs 1, 6 -7.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence6 that he exhausted his administrative remedies before OSC
and make nonfrivolous allegations7 of the following: (1) he made a disclosure
described under 5 U.S.C. § 2302 (b)(8) or engaged in a protected activity
described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a).
Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶¶ 11, 14 . To
satisfy the contributing factor criterion at the jurisdictional stage, an appellant
need only make a nonfrivolous allegation that the fact of, or content of, the
protected disclosure or activit y was one factor that tended to affect a personnel
action in any way. Id., ¶ 14.
¶6 On petition for review, the appellant objects to the Board’s handling of a
previous IRA appeal filed by the appellant , i.e., Diazdelcastillo v. Department of
Transportation , MSPB Docket No. DE-1221 -16-0234 -W-1. 0507 PFR File, Tab 1
at 1-2. The appellant asserts that the Board’s handling of this prior appeal
unjustly created a “black mark” against him. Id. at 2. A review of the record of
6 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
7 A nonfrivolous allegation i s an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
5
the prior appeal indicates that th e appellant previously attempted to file an IRA
appeal against the Department of Homeland Security; however, due to lack of
clarity in his submissions, the Board named the Department of Transportation as
respondent instead. Diazdelcastillo v. Department o f Transportation , MSPB
Docket No. DE-1221 -16-0234 -W-1, Initial Appeal File (0234 IAF), Tabs 1, 3.
The administrative judge assigned to this prior matter dismissed the appeal for
lack of jurisdiction; however, in so doing, he explained that the appellant c ould
file a new IRA appeal against the Department of Homeland Security. 0234 IAF,
Tab 10, Initial Decision at 3. The appellant did so, resulting in the instant appeal.
We find that the appellant’s substantive rights were not harmed by the Board’s
handli ng of his prior appeal and that his arguments related thereto do not warrant
a different outcome in the instant appeal .
¶7 The appellant contends that both OSC and the agency have withheld
documents that he needs for the instant IRA appeal . 0507 PFR File, Ta b 1 at 2 -8,
10-11. He aver s that these documents “were previously submitted to OSC and
contain about 2,500 pages of [d]isclosures.” Id. at 2. We find the appellant’s
assertions in this regard both unclear and unavailing.8 Indeed, a lthough the
appellant seemingly argues that some or all of these 2,500 documents will enable
him to satisfy his jurisdictional burden, id. at 10 -11, he neither describes the
documents with any particularity nor explains why he is unable to make a
nonfrivol ous allegation of contributing factor absent the same ,9 see Wagner v.
8 The record suggests that the appellant is requesting documents that he himself
provided to OSC. E.g., 0507 IAF, Tab 35 at 4. Although unclear , it appears that he
may currently be in possessi on of at least some of these documents. To this end, he
states as follows in his petition for review : “Appellant pleads to the MSPB to accept
Appellant’ s identical documents other than the ones that could eventually be delivered
to Appellant as requested by Appellant from OSC and TSA .” 0507 PFR File, Tab 1
at 7-8 (grammar and punctuation in original) .
9 For instance , as discussed herein, the initial decision indic ated that the appellant had
failed to allege that his protected disclosures predated the majority of the 35 alleged
personnel actions. 0507 ID at 20-21. Indeed , the appellant had asserted as follows in
his response to the administrative judge’s jurisdict ional order: “[p]roceeding (sic) this
6
Environmental Protection Agency , 54 M.S.P.R. 447 , 452 (1992) , aff’d , 996 F.2d
1236 (Fed. Cir. 1993) (Table ); see also 5 C.F.R. § 1201.114 (b). To the extent the
appellant argues that the respondent agency should have provided him with these
documents via dis covery but failed to do so, 0507 PFR File, Tab 1 at 11, Tab 7
at 5, his failure to file a motion to compel before the administrative judge
precludes him fro m raising the issue on review, see Szejner v. Office of Personnel
Management , 99 M.S.P.R. 275 , ¶ 5 (2005), aff’d , 167 F. App’x 217 (Fed. Cir.
2006).10 Thus, a different outcome is not warranted.
¶8 Regarding the contributing factor jurisdictional criterion, the appellant
again provides a list of 35 alleged personnel actions , which appears to be
identical to the list he submitted to the administrative judge . 0507 PFR File,
Tab 1 at 10-13; 0507 IAF, Tab 13 at 5-9. The appellant , however, still has not
provided the information that would be necessary to make a connection between
his disclosures and the alleged personnel actions, e.g., he has not alleged , even in
the most general of terms, when the majority of these purported actions took
place nor has he discernably indicated who took the se purported perso nnel
actions. See Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶¶ 14 -15
(2012) (summarizing the various methods by which an appellant can satisfy the
contributing factor criterion). Indeed , despite being notified 3 times (once in the
administrative judge’s jurisdictional order, once in the agency’s response to the
jurisdictional order, and once in the initial decision itself) that he needed to allege
this information , the appellant has detectably alleged a timeframe for only 1 of
disclosure [] I was subje cted to the following reprisals .” 0507 IAF, Tab 13 at 5. On
review, the appellant again fails to discernably allege that his disclosures were made
prior to the majority of the alleged person nel actions, much less provide even a general
time line for the alleged actions.
10 To the extent the appellant argues that the administrative judge erred in denying his
request for a stay so that he could , among other things, obtain documents from OSC,
0507 ID at 3 n.5, we find his argument unavailing . To the extent he requests the Board
to order OSC to produce the subject documents, his request is denied. 0507 PFR File,
Tab 1 at 10.
7
the 35 enumerated agency actions , i.e., his supervisor’s January 6, 2011 failure to
summon emergency medical services for him .11 0507 ID at 20-21; 0507 PFR File,
Tab 1 at 11-13; 0507 IAF, Tab 7, Tab 29 at 8-10; see El v. Department of
Commerce , 123 M.S.P.R. 76 , ¶ 10 (2015) (explaining that , because the subject
personnel action predated the disclosure, there was no way that the disclosure
could have contributed to the personne l action ), aff’d , 663 F. App’x 921 (Fed.
Cir. 2016) ; see also Keefer v. Department of Agriculture , 92 M.S.P.R. 476 , ¶ 18
n.2 (2002) (indicating that a n appellant is required to articulate claims with
reasonable clarity and that t he Board is not obligated to pore through a
voluminous record to make sense of various allegations ). Thus, we agree that the
appellant failed t o make a nonfrivolous allegation that his protected disclosures
contributed to a personnel action .
¶9 Last, t he appellant avers that the administrative judge erred in finding that
one of his disclosures was not protected. 0507 PFR File, Tab 1 at 8; 0507 ID
at 14-17. We find, however, that this argument is unavailing with regards to the
11 We agree with the administrative judge’s conclusion that the appell ant’s assertions
regarding this January 6, 2011 incident do not constitute a nonfrivolous allegation of a
personnel action as defined by 5 U.S.C. § 2302 (a). 0507 ID at 21-22 & n.20; see
Skarada v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 15 (explaining that, to
constitute a “significant change i n duties, respo nsibilities, or working conditions ” under
section 2302(a)(2)(A)(xii) , an agency action must have a significant impact on the
overall nature or quality of an employee’s working conditions, responsibilities, or
duties ). Moreover , the appellant appears to argue on review that his supervisor’s failure
to summon emergency medical services was precipitated by racial discrimination. 0507
PFR File, Tab 1 at 15 .
Although not addressed in the initial decision, w e acknowledge that the appellant also
alleged that t he agency had “denied and failed to respond to numerous requests for
information as to the status of [his] March 17, 2011 initial requests for medical
accommodation via telework .” 0507 IAF, Tab 13 at 8. We can deduce that the
agency’s alleged denials/fai lures in this regard took place at some point after March 17,
2011, i.e., approximately 3 years after the appellant made his protected disclosures ;
however, we find that this allegation does not amount to a nonfrivolous allegation of a
personnel action as defined by 5 U.S.C. § 2302 (a). Moreover, the appellant has not
alleged who took this action or whether the acting individual(s) had actual or imputed
knowledge of his 2008 disclosures .
8
contributing factor jurisdictional criterion, which is the dispositive issue in this
matter . Indeed , even assuming that the administrative judge erred in finding that
the a ppellant failed to make a nonfrivolous allegation that one of his three
disclosures to OSC12 was protected, the appellant’s attempt to connect this
disclosure to the alleged personnel actions suffers from the same infirmities as his
attempt to connect the o ther disclosures to the alleged personnel actions.
¶10 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS13
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time 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
12 We clarify that the appellant’s disclosures to OSC also constituted protected activity
under 5 U.S.C. § 2302 (b)(9)(C); however, given the appellant’s failure to satisfy the
contributing factor cri terion, this issue is not material to the outcome of this appeal.
See Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 62 (indicating that
a disclosure of information to O SC constitutes protected activity under 5 U.S.C.
§ 2302 (b)(9)(C) regardless of its content ).
13 Since the issuance of the initial decision i n this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
10
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through t he link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discri mination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calend ar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington , D.C. 20013
11
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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.14 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:
14 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and 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 | DIAZDELCASTILLO_ALFONSO_J_DC_1221_16_0507_W_1_FINAL_ORDER_2043228.pdf | 2023-06-22 | null | DC-1221 | NP |
3,003 | https://www.mspb.gov/decisions/nonprecedential/STEWMAN_DEON_N_AT_0752_16_0647_I_1_FINAL_ORDER_2043235.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEON N. STEWMAN,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
AT-0752 -16-0647 -I-1
DATE: June 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph D. Ybarra , Esquire, San Antonio, Texas, for the appellant.
Ronnie Hubbard , Jackson, Mississippi, for the appellant.
Stephanye Snowden , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal action. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based o n 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 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).
BACKGROUND
¶2 On May 10, 2016, the agency proposed to remove the appellant from his
GS-8 Consumer Safety Inspector position based on a single charge of
Inappropriat e Conduct in the Workplace. Initial Appeal File (IAF), Tab 9
at 25-30. In support of the charge, the agency listed the following two
specifications: (1) engaging in inappropriate cond uct of a sexual nature on
March 30, 2016, while in the workplace on of ficial duty; and (2) engaging in
inappropriate conduct during a meeting with his supervisor on April 7, 2016. Id.
at 25 -26. The appellant responded to the proposed removal in an in -person oral
conference on June 1, 2016. Id. at 22 -24. He did not submit a written reply. On
June 8, 2016, the deciding official affirmed the proposed removal. Id. at 17 -21.
The appellant was removed effective June 25, 2016. Id. at 16.
¶3 The appellant timely filed an appeal of his removal with the Board. IAF,
Tab 1. Fol lowing a hearing, the administrative judge issued an initial decision
sustaining the removal action. IAF, Tab 24, Initial Decision (ID). The
administrative judge found that the appellant did not establish his affirmative
3
defenses of discrimination based on sex,2 harmful procedural error, and due
process violations. ID at 19 -31.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 On petition for review, the appellant only challenges the administrative
judge’s findings on his due process claims.3 Petition for Review (PFR) File,
Tab 1. The appellant reiterates his argument that his due process rights were
violated when the agency did not provide him with all of the eight witness
statements that were collected during its investigation of his misconduct.4 Id.
at 8. As discussed below, the appellant’s arguments do not provide a basis for
review.
The appellant has not established that t he agency viola ted his due process rights
by n ot providing him with all of the witness statements.
¶6 When a deciding official receives new and material information by means
of ex parte communications, a due process violation has occurred and the former
empl oyee is entitled to a new constitutionally correct removal procedure. Stone
v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999).
2 Because, as noted below, the appellant does not challenge on review the
administrative judge’s finding that he failed to prove his discrimination claim, 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, ¶¶ 20-22,
29-33.
3 The appellant does not challenge the administrative judge’s findings that the agency
proved its charge of inappropriate conduct, that a nexus exists between the sustained
charge and the efficiency of the service, and that the penalty was rea sonable under the
circumstances. ID at 6 -19. In any eve nt, we discern no basis for disturbing these
well -reasoned findings on review.
4 On review, the appellant states that six of eight witness statements were not provided
to him. PFR File, Tab 1 at 8. However, the record reflects that only four witness
statements were not provided to the appellant and are at issue. Hearing Transcript
(HT), Volume 2, at 155:13 -16, 179:3 -11 (testimony of the appellant).
4
In determining whether to find a due process violation, the Board must consider
the facts and circums tances of each particular case. Id. Not every ex parte
communication rises to the level of a due process violation —only ex part e
communications that introduce new and material information to the deciding
official con stitute due process violations. Id. at 1376 -77; see Ward v. U.S. Postal
Service, 634 F.3d 1274 , 1279 ( Fed. Cir. 2011).5 When an agency official initiates
an ex parte communication “that only confirms or clarifies information already
contained in the record, there is no due process violation.” Blank v. Depar tment
of the Army , 247 F.3d 1225 , 1229 (Fed. Cir. 2001).
¶7 The administrative judge addressed the appellant’s argument that the
agency violated hi s due process rights when it withheld four of eight witness
statements collected during the agency’s investigation. ID at 28 -29. The
administrative judge found the deciding official to be a credible witness who
reasonably exercised her discretion and gav e adequate consideration to the
appellant’s oral reply. ID at 19. The administrative judge relied on the deciding
official’s testimony that she was either not provided with , or that she did not
recall being provided with , the four additional witness stat ements. ID at 29;
Hearing Transcript (HT), Volume 1, at 239:19 -40:20 (testimony of the deciding
official).6 In addition, he noted that the appellant did not introduce evidence to
contradict or otherwise call into question the deciding official’s testimon y on this
issue. ID at 29. The administrative judge found that the appellant did not
establish that the deciding official improperly considered witness statements not
5 In Stone , the U.S. Court of Appeals for the Federal Circuit identified the following
factors to be used to determine if ex parte information is new and material: (1) whether
the ex parte information introduced cumulative, as opposed to new, information;
(2) whether the employee knew of the informat ion and had an opportunity to respond;
and (3) whether the communication was of the type likely to result in undue pressure on
the deciding official to rule in a particular manner. Stone , 179 F.3d at 1377.
6 For consistency with the administrative judge ’s initial decision, all citations to the
hearing transcript are to the individual pages within the condensed transcript at the back
of each volume. ID at 2.
5
previously provided to the appellant in making the decision to remove him and
that, acc ordingly, the appellant failed to establish that a due process violation
occurred . ID at 29 -30.
¶8 The appellant has provided no reason for disturbing this finding on review .7
A deciding official’s knowledge of information only raises due process concerns
when that knowledge is a basis for the deciding official’s determinations on either
the merits of the underlying charges or the penalty to be imposed. Bennett v.
Department of Justice , 119 M.S.P.R. 685, ¶ 10 (2013) . Here, the appellant has
failed to produce any evidence either below or on review to contradict the
deciding official’s testimony that she was not provided with , and thus could not
have relied upon, the four additional witness statements at issue . ID at 29; HT,
Vol. 1, at 239:19 -40:20 (testimony of the deciding official) . Therefore, w e find
that he has failed to prove that the agency violated his due process rights by not
provid ing him with these witness statements.
¶9 Even if the deciding official had received and considered the four additional
witness statements, any such communication would not violate the appellant’s
due process rights because these communications clari fied and confirmed
information that was already in the record. See Blank , 247 F.3d at 1229.
Specifically, like the other witness statements, these four additional witness
statements describ e seeing the appellant engage in inappropriate misconduct of a
sexual nature. Compare IAF, Tab 9 at 44 -48, with IAF, Tab 14 at 15 -16, 22 -23
(comparing witness statements from the evidence file with the four additional
7 To the extent the appellant argues he was entitled to all eight witness statements
simply beca use they were collected during the investigation, and not because they were
relied upon by the agency, this argument is without merit. See Martel v. Department of
Transportation , 15 M.S.P.R. 141, 155 (1983) ( finding that there was no error when an
agency exclude d information from an adverse action proposal file if the information
was not relied upon to reach the adverse action decision ), aff’d , 735 F.2d 504 (Fed . Cir.
1984 ); Porrazzo v. Department of the Air Force , 19 M.S.P.R. 496 , 497 n.1 (1984)
(finding that the agency need not provide a n entire investigation file to an employee if
the proposal is based on only the portions of the file that were provided to the
employee).
6
witness statements collected during the investigation). Thus, these statements
would not have risen t o the level of an ex parte communication that presented
new information to the deciding official because the additional witness statements
contained cumulative information regarding the appellant’s propensity to engage
in inappropriate misconduct of a sexu al nature. Further, there is no showing that
additional information regarding the appellant’s inappropriate conduct would
likely result in undue pressure upon the deciding official to rule in a particular
manner. Stone , 179 F.3d at 1377. In fact, the de ciding official explicitly testified
that only one instance of such inappropriate misconduct, such as the charged
misconduct that occurred on March 30, 2017, would warrant removal. HT, Vol. I,
at 232:24 -233:4 (testimony of the deciding official) . Thus, e ven assuming that an
ex parte communication did occur, the procedural defect was not so substantial
and so likely to cause prejudice that it undermines the due process guarantee of
notice. Stone , 179 F.3d at 1376.
¶10 Although we find no due process violation , we still must determine whether
the agency committed harmful procedural error. See Ward , 634 F.3d at 1282 . To
prove harmful procedural error, the appellant must show both that the agency
committed procedural error and that the error was harmful. Rogers v. Department
of Defense , 122 M.S.P.R. 671 , ¶ 7 (2015). Harmful error cannot be presumed; an
agency error is harmful only where the record shows that the error was likely to
have caused the agency to reach a conclusion different from the one it would have
reached in the absence of the error. See id. Here, even if the deciding official
had erred in considering the four additional witness statements, such error would
not likely have caused her to reach a different conclusion regarding the
appellant’s removal because the witness statements contained no new information
than that in the evidence file. See Stephen v. Departm ent of the Air Force ,
47 M.S.P.R. 672 , 681 (1991) (explaining that a procedural error is harmful if it
likely had a harmful effect upon th e outcome of the case); see also 5 C.F.R.
§ 1201.4 (r).
7
The administrative judge properly found that the appellant’s due process claim
regarding his oral reply conference was untimely.
¶11 On review, the appellant also raises a due process claim regarding his oral
reply conference. PFR File, Tab 1 at 10 -14. However, the administrative judge
found that this claim was untimely because the appellant did not raise it before
the prehearing confe rence pursuant to 5 C.F.R. § 1201.24 (b); ID at 30. The
appellant alleges that the agency committed the following due process violations
concerning the oral reply conference : (1) an agen cy official, not the deciding
official, was prese nt at the oral reply conference; (2) documents that the appellant
submitted at the oral reply were not pr ovided to the deciding official; and
(3) there were typographical errors in the oral reply summary pre pared by the
agency official. ID at 30; PFR File, Tab 1 at 10 -14. The administrative judge did
not list these specific due process allegations in the summary of the telephonic
prehearing conference, which stated that additional issues would be precluded.
IAF, Tab 16 at 8 -10. The parties were given the opportunity to object to the
summary either in writing prior to the hearing or on the record at the
commencement of the hearing. Id. at 10. The appe llant did not object. HT,
Vol. 1, at 6:3 -15. Because the appellant failed to object to the administrative
judge’s summary of the prehearing conference, he may not now raise this claim
on review. See Crowe v. Small Business Administration , 53 M.S.P.R. 631 , 634 -35
(1992) ( finding that an issue is not properly before the Board when it is not
inclu ded in the administrative judge’ s memorandum summarizing the prehearing
conference, which states that no other issues will be considered, unless either
party objects to the exclusion of that issue in the summary). Thus, the Board
need not consider this claim further.8
8 Even if the appellant had timely raised this due process claim below, he has not
provided a basis for disturbing the administrative judge’s finding that a violation did
not occur. 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
8
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 to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
evidence as a whole, drew appropriate inferences, and made reasoned conclusions on
issues of credibility); ID at 30.
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 i ndicated in the notice, the
Board cannot advise which option is most appropriate 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 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
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
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/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
11
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.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 Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired o n
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STEWMAN_DEON_N_AT_0752_16_0647_I_1_FINAL_ORDER_2043235.pdf | 2023-06-22 | null | AT-0752 | NP |
3,004 | https://www.mspb.gov/decisions/nonprecedential/DOJ_DOCTORS_NY_1221_14_0202_W_1_FINAL_ORDER_2043341.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DOJ DOCTORS,
Appellant s,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
NY-1221 -14-0202 -W-11
DATE: June 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
F. Michael Daily, Jr. , Esquire, Westmont, New Jersey, for the appellant s.
Pradip Patel , Columbus, N ew Jersey, for the appellants.
Kathleen Harne and Tara Chen , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
1 Pursuant to 5 C.F.R. § 1201.36 (a)(1), the administrative judge consolidated appeals
filed by Pradip Patel, M .D. and Nicoletta A. Turner -Foster , M.D. MSPB Docket
No. NY-1221 -14-0202 -W-1, Consol idation Appeal File (CAF), Tab 2 ; see MSPB
Docket Nos. PH-1221 -14-0326 -W-1 and PH -1221 -14-0325 -W-1. While the
administrative judge issued separate initial decisions, we again consolidate these
matters under MSPB Docket No. NY -1221 -14-0202 -W-1 for consideration of the joint
petition for review.
2 A nonprecedential order is one that the Board has deter mined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 appellants have filed a petition for review of the initial decision s,
which denied their request s for corrective action in their individual right of action
(IRA) appeal s. Generally, we grant petitions such as this one only in the
following circumstances: the initial de cision 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 th e 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, desp ite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considerin g the filings in this appeal, we conclude that the petitioner s have 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 VAC ATE the administrative judge’s findings concerning one
of appellant Patel’s disclosures and to supplement the administrative judge’s clear
and convincing analysis, we AFFIRM the initial decision s, which are now the
Board’s final decision s. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On November 12, 2013, the appellants , who are Medical Officers with the
Bureau of Prisons, Federal Co rrectional Institution (FCI) in Fort D ix, New Jersey,
filed sep arate IRA appeals alleging that the agency denied their allowance s under
the Physicians Comparability Allowance Program (PCAP)3 in reprisal for their
3 Pursuant to 5 U.S.C. § 5948 , for recruitment and retention purposes, a Government
physician may receive an allowance not to exceed $14,000 if the physician has served
3
prior protected disclosures. Patel v. Department of Justice , MSPB Docket
No. PH-1221 -14-0326 -W-1, Initial Appeal File ( Patel IAF), Tab 1; Turner -Foster
v. Department of Justice , MSPB Docket No. PH -1221 -14-0325 -W-1
(Turner -Foster IAF), Tab 1. On January 28, 2011 , the Warden of Fort D ix
notified appellant Turne r-Foster that she intended to withhold her PCAP be cause
her productivity over the past 12 months was only at 54 % of the required
standard. Turner -Foster IAF, Tab 13, Subtab 4(n). After considering appellant
Turner-Foster’s response, on February 11, 2011, the Warden issued a decisi on to
withhold appellan t Turner -Foster’s PCAP. Id., Subtab 4(g).
¶3 Similarly, on February 7, 2011 , the Warden notified appellant Patel that she
intended to withhold his PCAP because his productivity over the past 12 months
was only at 66 % of the required standard. Patel IAF, T ab 12, S ubtab 4(v). On
March 16, 2011, after considering appellant Patel’s response, the Warden issued a
decision to withhold appellant Patel’s PCAP. Id., Subtab 4(j). The appellants
contend that the decisions to withhold their PCAPs were taken in reprisal for
protected disclosures th ey made during a meeting on September 10, 2010 ,
concerning , among other things, late laboratory results, which they maintain
posed a substantial and specific danger to public health and safety by preventing
physicians f rom timely ensuring that patients were appropriately respond ing to
treatment . Patel IAF, Tab 1 at 6 ; Turner -Foster IAF, Tab 1 at 6.
¶4 Upon motion by the appellants, the administrative judge consolidated their
appeals. DOJ Doctors v. Department of Justice , MSPB Docket No. NY -1221 -14-
0202 -W-1, Consolidation Appeal File (CAF), Tab 2; Patel IAF, Tab 20;
Turne r-Foster IAF, Tab 25. After holding a 5-day hearin g, th e administrative
for 24 months or less , or $30,000 if more than 24 months. The agency’ s program
statement, which sets forth the terms and conditions for PCAPs, specifies that renewals
are not automatic and any job performance or organizational difficulties must be
addressed prior to renewal. Patel v. Department of Justice , MSPB Docket No. PH -
1221 -14-0326 -W-1, Initial Appeal File , Tab 12, Subtab 4(ss) at 42.
4
judge issued initial decision s, denying the appellants’ request s for corrective
action.4 Patel IAF, Tab 21, Initial Decision (ID). The administrative judge found
that, although the appellants had made protected disclosures in September 2010
concerning late lab oratory results and had established a prima facie case of
whistleblower reprisal, the agency met its burden of establishing by clear and
convincing evidence that it would have denied the appellants’ PCAPs absent their
protected disclosures. ID at 7 -33.
¶5 The appellants have filed a joint petition for review. P etition for Review
(PFR) File, Tab 1. The agency has opposed the appellants’ petition. PFR File,
Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
We vacate the administrative judge’s finding that appellant Patel’s disclosure
concerning compensatory time usage wa s a protected disclosure.5
¶6 To prove that a disclosure is protected, an appellant must prove by
preponderant evidence6 that a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by him coul d reasonably
conclude that the matter disclosed evidenced a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety . 5 U.S.C.
4 Although the appeal was consolidated, the administrative judge issued separate, but
nearly identical initial decisions. Patel IAF, Tab 21, Initial Decision ; Turner -Foster
IAF, Tab 26 , Initial Decision . Unless otherwise specified , all references herein are to
the initial decision in Patel .
5 The appellants do not challenge the administrative judge’s findings that they failed to
prove th at their disclosures concerning the lack of translation services and violatin g the
primary care provider team c oncept were protected disclosures, and we discern no error
in the administrative judge’s analysis. ID at 9-12.
6 A prepo nderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5
§ 2302 (b)(8); Miller v. Department of Homeland Security , 111 M.S.P.R. 312, ¶ 5
(2009) .7
¶7 Appellant Patel testified that he raised concerns that phys icians were not
permitted to earn compensatory time while the Clinical Director and h er husband
were routinely allowed to earn compensatory time. CAF, Hearing Transcript
(HT) at 63 -64. In her initial decision, t he administrative judge cited to testimony
by agency officials explaining that the difference in treatment was because the
physi cians were GS-15, step 10 employees, and thus, not eligible for overtime or
compensatory time due to limits on premium pay. ID at 12 -13. In contrast, the
Clinical Director was a GS -15, step 7, and during the relevant time period may
have been a GS -15, step 3. ID at 13. Without explanation, the administrative
judge found that a reasonable person in the appellant’s positio n would have
believed that granting the Clinical Director and her husband compensatory time
while denying the physicians compensatory time evidenced one of the situations
covered by 5 U.S.C. § 2302 (b)(8) . ID at 13. We disagree. In his testimony and
pleadings below, appellant Patel failed to specify any detai ls as to the groun ds for
his belief that this disclosure evidenced one of the categories of wrongdoing
identified in 5 U.S.C. § 2302 (b)(8)(A). Moreover, he did not address this alleged
protected disclosure at all in his closing brief. CAF, Tab 20. Accordingly, we
find that he failed to prove by preponderant evidence that this constituted a
protected disclosure .
The agency proved by clear and convincing evidence th at it would have denied
the appellants’ PCAPs in the absence of their protected disclosures.
¶8 If an appellant makes a prima facie showing of whistleblower reprisal, the
burden shifts to the agency to prove by clear and convincing evidence that it
7 All of the relevant events occurred prior to the December 27, 2012 effective date of
the Whistleblower Protection Enhancement Act of 2012 (WPEA) , Pub. L. No. 112 -199,
126 Stat. 1465. However, the provisions of the WPE A do not affect our analysis .
6
would have taken the same personnel action in the absence of the protected
disclosure. 5 U.S.C. § 1221 (e)(1) -(2); Lu v. Department of Homeland Security ,
122 M.S.P.R. 335 , ¶ 7 (2015). Clear and convincing evidence is that measure or
degree of proof that produces in the mind of the trier of fact a firm belief as to the
allegations sought to be established; it is a higher standard than the
“preponderance of the evidence” standard. Sutton v. Department of Justice ,
94 M.S. P.R. 4 , ¶ 18 (2003), aff’d , 97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R.
§ 1209.4 (e).
¶9 In determining whether an agency has met this burden, the Board will
consider all of the relevant factors , including the following : (1) the strength of
the agency’ s evidence in support of the action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence tha t the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Lu, 122 M.S.P.R. 335 , ¶ 7 (citing Carr v . Social Security Administration ,
185 F.3d 1318 , 1323 (Fed. Cir. 1999)). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence. Rather, the Board will weigh the factors together to determine whether
the evidence is clear and convincing as a whole. Id. Furthermore, t he Board will
consider all the pertinent evidence in the record and will not exclude or ignore
countervailing evidence by only looking at the evidence that supports the
agency ’s position. Whitmore v. Department of Labor , 680 F.3d 1353 , 1367 -70
(Fed. Cir. 2012).
¶10 Regarding the first Carr factor, the administrative judge found that the
agency provided strong evidence that it withheld the appellants’ PCAPs because
they failed to meet the required productivity standard of seeing eight patients per
day. ID at 1 8-24. Although the appellant s testified that they were not aware of
such a standard, the administrative judge credited the Clinical Director’s
testimony that physicians not seeing enough patients per day was a historical
7
issue, the appellants were aware that they were expected to see 8 patients per day ,
and the standard had been 10 patients per day but was reduced in response to
complaints from the physicians . Id. The administrative judge further found that
the agenc y’s ev idence that the appellant s failed to meet the eight -patient s-per-day
standard was strong based on separate analyses which showed that in 2010 ,
appellant Patel saw an average number of 5.4 patients per day8 and appellant
Turner -Foster saw an average number of 4.3 patients per day. ID at 24-25;
Turner -Foster IAF, Tab 26, Initial Decision at 21 -22. Although the appellants
disputed these numbers, the administrative judge found that they failed to provide
their own calculations and appellant Patel’s testimony concerning his calculations
changed and was conflicting . ID at 27 -28.
¶11 On review, the appellants primarily challenge the administrative judge’s
findings concerning the first factor. They contend that the administrative judge
erred in finding that the agency offered strong evidence establishing that they
were required to see eight patients per day or that they failed to meet such a
requirement . First, they contend that the administrative judge failed to co nsider
that the record is devoid of any documents prior to the date their PCAPs were
denied that set forth an eight -patient s-per-day standard . PFR File, Tab 1 at 4-5.
Second, they contend that the administrative judge failed to consider that their
perfor mance reviews prior to the date their PCAPs were denied were satisfactory
and fail to reference any productivity standard. Id.
¶12 We acknowledge the appellants ’ cont ention that, prior to the denial of their
PCAPs, the eight -patient s-per-day standard was not specifically memorialized in
any written document. PFR File, Tab 1 at 4-5. Rather, it was not until
February 11, 2011 that the eight -patient s-per-day standard specifically appeared
8 A second analysis, considering appellant Patel’s claims that the first analysis failed to
account for va rious factors , such as patient no-shows and his leave, determined that
appellant Patel saw 5.7 patients per day. ID at 25.
8
in the appellants ’ performance objectives. Patel IAF, Tab 12, Subtab 4(u);
Turner -Foster IAF, Tab 13, Subtab 4(h). However, we nonetheless find that the
agency put forth evidence suggesting that such a standard existed prior to 2011.
For example, the record include s separate documents dated February 13, 2009 ,
signed by the appellant s, setting forth performance expectations for medical
officers, which include , among other things, maintaining chronic care clinics
(CCC )9 up to date. Turner -Foster IAF, Tab 13, Subtab 4(t) ; Patel IAF, Tab 12,
Subtab 4(qq). The Clinical Dir ector , who supervised all of the medical officers,
including the appellants, testified that medical officers had to see a certain
number of patients per day to maintain their CCCs up to date and that she placed
the specific requirement of eight patients pe r day on the appellants’ performance
objectives on February 11, 2011, to emphasize that maintaining CCCs up to date
meant that the appellants had to see a certain number of patients per day. HT
at 809. A November 17, 2010 memorandum similarly reflects th at eight patients
per day was determined to be the minimum number of patients per day required to
prevent overdue CCC. Patel IAF, Tab 12, Subtab 4(z).10
9 CCC refers to patients who have conditions like diabetes or hypertension that require
monitoring. HT at 45, 414. During most of the relevant time, the relev ant policy
required CCC patients to be evaluated once every 6 months. HT at 45, 415, 702 -03.
10 The appellant s challenge the validity of this document on review, correctly pointing
out that there are conflicting versions of it in th e record. PFR File, Tab 1 at 4, 6 -7.
One version indicates, “[e]ight cases per day per provider has been determine d to be the
minimal quota necessary to prevent overdue CCC in FCI Fort Dix. Failure on the part
of the provider to meet this minimum can potentially result in overdue CCC.” Patel
IAF, Tab 14 at 9. In contrast, another version indicates, “[e]ight cases p er day per
provider was agreed upon amongst administration and medical providers during a
September 2010 meeting, to be the minimal quota necessary to prevent overdue CCC in
FCI Fort Dix . Failure on the part of the provider to meet this minimum can potent ially
result in overdue CCC.” Patel IAF, Tab 12, Subtab 4(z); Turner -Foster IAF, Tab 13,
Subtab 4(r). Although the appellants dispute that they were made aware of this
requirement during a meeting in September 2010, the document nonetheless s erves to
show a link between a required number of patients seen per day and preventin g overdue
CCCs as set forth in the appellants’ performance expectations as of 2009. The
9
¶13 In addition, t he administrative judge credited the Clinical Director’s
testimony that the appellants were aware of the eight -patient s-per-day standard,
over the appellants ’ testimony to the contrary. In particular, t he administrative
judge credited the Clinical Directo r’s testimony that she initially set the standard
at 10 patients per day, but agreed to decrease it to 8 because the physicians were
having difficulty seeing 10 patients per day . ID at 22 . She found that such
testimony was corroborated by a May 13, 2009 memorandum documenting a
meeting with the medical officers in which they requested a modification of the
number of patients seen and, as a result, the requirement was reduced from an
average of 9.2 patients per day to 7.4 patients per day. ID at 22 -23; Patel IAF,
Tab 14 at 14 -15. The administrative judge further credited the Clinical Director’s
testimony that , while working for other institutions, she never witnessed doctors
seeing fewer than 8 patients per day, but rather generally saw a higher average o f
12, 13, or even 15 patients per day. ID at 27. Finally, the administrative judge
also credited testimony of the Regional Medical Director for the Northeast
Region that , for a Care Level 2 facility like Fort Dix, he would expect doctors to
see between 8 to 12 patients per day. ID at 26. Thus, the appellants’ arguments
on review constitute disagreement with the administrative judge’s credibility
determinations and fail to provide a basis for reversal.11 See Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) ( finding that the Board will give
due deference to the credibility findings of the administrative judge , and will not
grant a petit ion for review based on a party’ s mere disagreement with those
findings).
appellants do not dispute that they were required to keep their CCCs current. HT
at 189.
11 The appellant s also contend that the administrative judge erred in crediting the
Clinical Director’s testimony because of her lack of certain professional credentials.
PFR File, Tab 1 at 5 -6. However, such criteria are not relevant in assessing witness
credibility. See Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (198 7) (setting
forth the factors generally relevant in making credibility determinations).
10
¶14 On review, the appellants also contend that , in assessing the strength of the
agency’s evidence in support of its action, the administrative judge faile d to
consider that their performance reviews were satisfactory. PFR File, Tab 1
at 4-5. We agree with the appellants that their performance reviews contained in
the record are all satisfactory and the record does not contain any written
warnings or disci pline advising them that they were failing to meet the
eight -patient s-per-day standard in 2010. However, the record does contain some
negative performance references. In particular, a ppellant Patel’s clinical review
on March 26, 2009 , showe d that he had over 150 overdue CCCs and his review
dated October 25, 2010 , referenced bringing his CCC s up to date and improving
his clinic patient flow. Patel IAF, Tab 4, Subtabs 4(i), 4(pp). Appellant
Turner -Foster’s reviews prior to 2010 are not in th e record . However, appellant
Turner -Foster testified that the Clinical Director had talked to her about seeing
more patients and acknowledged that there was a push to see more and more
patients and to maintain CCCs current. HT at 187, 205. Thus, althoug h the
agency may have failed to warn the appellants via their formal performance
reviews that they were not seeing a sufficient number of patients, there is
evidence to show that they needed to increase the number of patients they saw
each day.
¶15 Additionall y, the appellants ’ production reports prepared by the Clinical
Director indicate that their numbers were below eight patients per day .
Patel IAF, Tab 12, Subtabs 4(k), 4(w); Turner -Foster IAF, Tab 13, Subtab s 4(j),
4(s). Although appellant Patel disputed these calculations and testified that his
own calculations of his productivity showed that he was just as productive if not
more productive than another physician, Dr. C., who received a PCAP, he failed
to provide such cal culations. HT at 98 -99; ID at 27 -28. Similarly , appellant
Patel testified that he calculated appellant Turner -Foster’s productivity and
11
provided it to her ; however, such calculations are also not part of the record
below.12 HT at 98. On review, the appe llants dispute the agency’s calculations
and appear to provide calculations and argument establishing error in the
agency’s calculations. PFR File, Tab 1 at 10-14. However, w e decline to
consider the appellants ’ arguments and evidence challenging the agency’s
calculations raised for th e first time on review because they have not shown that
such arguments are based on new and material evidence that was not previously
available prior to the close of the record below . See Banks v. Department of the
Air F orce , 4 M.S.P.R. 268 , 271 (1980); Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211 , 214 (1980); 5 C.F.R. § 1201.115 (d).
¶16 Regarding the second Carr factor, we agree with the administrative judge
that there was a weak motive to retaliate on the part of the agency officials
involved in deny ing the appellants ’ PCAPs. The appellant s’ protected disclosures
concerned patient la boratory results not being processed timely. The appellants
contend that the Health Service Administrator (HSA) had a motive to retaliate
against them because this issue pertained to areas under her responsibility. CAF ,
Tab 20 at 28 ; see Robinson v. Department of Veterans Affairs , 923 F.3d 1004 ,
1019 -20 (Fed. Cir. 2019) (discussing a professional motive to retaliate when
12 The re cord below only contains a document prepared by appellant Turner -Foster,
which s he contends shows that the average number of patients available for her to see
daily ranged from 5.61 to 6.5 for the months of Octo ber, November , and December
2010. CAF, Tab 11 at 36. She testified that she was not able to see eight patients per
day because some days she was scheduled to see fewer , or patients did not show up, or
a lockdown prevented her from seeing patients. HT at 224 -25. App ellant Patel testified
similarly that he was not always scheduled to see eight patients per day and factors
outside of his control, such as patients not showing up, lockdowns, and double bookings
prevented him from seeing eight patients per day . HT at 70-72, 159-60. However, the
administrative judge credited testimony of the Clinical Director that regardless of these
factors physicians were advised of ways to increase the number of patients seen per
day, such as pulling patients from sick ca ll or having an officer pull a patient from a
unit. ID at 26 -27. She also credited the Clinical Director’s testimony that the
appellants never requested more scheduled patients ; rather , they requested fewer
scheduled patients. ID at 27.
12
assessing the second Carr factor). However, the HSA arrived at Fort D ix in
August of 2010, approximately 1 month prior to the date of the appellants ’
disclosur es. Id.; HT at 1002 . Thus, as the administrative judge found, she
essentially inherited the problems that the appellants reported. ID at 29.
Although the HSA’s recent arrival does not eliminate the possibility of an
institutional retaliatory motive , see Whitmore , 680 F.3d at 1370 -71, we
nevertheless find that the appellants’ disclosures did not reflect on her personally.
¶17 Further, testimony credited by the administrative judge established that late
laboratory results w ere a longstanding issue prior to the appellants’ disclosures.
For example, the HSA testified that the issue of late laboratory results was
brought to her attention when she first arrived at Fort Dix in August 2010 and, at
that time, a phlebotomist vacancy posting was pending. Id.; HT at 1002 -03. She
also testified that they were having difficulties filling the phlebotomist positions
due to the inability of applicants to pass the required background investigation,
and that in the interim she had assigned others to assist with laboratory tests as a
stopgap measure . HT at 1004 . Additionally, the Clini cal Director testified that,
prior to the appellants’ disclosures in September 2010, she and two other
physicians had complained at meetings about late laboratory results, which were a
well-known problem t hat dated back to December 2008, when she arrived at Fort
Dix. ID at 32; HT at 749-50, 831 . Based on the foregoing , we agree with the
administrative judge that , to the extent the appellants’ disclosures reflected
poorly on the Health Service s Department, the HSA, as head of that department,
had little motive to retaliate under these circumstance s in which her own
reputation was not at stake because she had just beg un in her role .
¶18 However, e ven assuming the HSA had a slight motive to re taliate, she did
not make the decision to withhold the appellants’ PCAPs. The administrative
judge credited her testimony that she attended a meeting with the Warden and the
Clinical Director concerning the appellants’ PCAPs at the Warden’s request, but
that she did not provide any input into the decision to withhold their PCAPs. ID
13
at 30 . The administrative judge found that su ch testimony was corroborated by
both the Clinical Director and the Warden. ID at 31 .
¶19 Regarding the Clinical Director, we agree with the administrative judge that
she did not have a motive to retaliate based on the appellants’ protected
disclosures concerning late laboratory results , which she agreed were a problem
and had previously raised as an issue herself. ID at 32. Although , as the
administrative judge found , the Warden could have had a slight motive to
retaliate because a backlog of late laboratory results reflects poorly on the
institution which she heads, ID at 31, the Warden testified that she was not aware
of the appell ants’ disclosures until after s he denied the ir PCAPs, ID at 15, HT
at 982-83. Thus, we find that she did not have a motive to retaliate.
¶20 Finally, the record reflects that the agency’s treatment of whistleblowers
does not suggest a motive to retaliate beca use: (1) the administrative judge
credited the testimony of the Warden that, after appellant Patel increased his
average number of patients per day to close to eight, she renewed his PCAP the
following year; and (2) Dr. C and Dr. S, who also similarly com plained of the late
laboratory results but saw a higher number of patients per day than the appellants,
both received their PCAPs . ID at 32; see Siler v. Environmental Protection
Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018) (stating that an agency’s treatment
of other whistleblowers may illuminate any motive to retaliate under the second
Carr facto r).13 On review, the appellants dispute the agency’s calculations
concerning Dr. C’s average number of patients and contend that they fail to show
the actual number of days Dr. C worked. PFR File, Tab 1 at 10-14. They also set
13 Although the adminis trative judge considered such evidence in her analysis of the
third Carr factor, we find that it is more appropriately addressed under the second Carr
factor. ID at 32; see Siler , 908 F.3d at 1299 (noting that the focus of the third Carr
factor is the agency’s treatment of non -whistleblower employees accused of similar
misconduct and, thus, the Board erred in considering evidence of the agency’s treatment
of other whistleblowers under the third Carr factor).
14
forth their own calculations based on electronic records, which they contend were
presented to the Offic e of Special Counsel and through discovery. Id. at 12-13.
However, such arguments were not raised in the proceedings below and the
appellants failed to cross examine the agency’s witnesses concerning these
alleged errors in the calculations or introduce any exhibits at the hearing showing
the specific numbers they relied upon in forming their beliefs that Dr. C’s average
number of patients seen was less than 7.9. Thus, we decline to consider these
arguments for the first time on review. See Banks , 4 M.S.P.R. at 271; Avansino ,
3 M.S.P.R. at 214; 5 C.F.R. § 1201.115 (d).
¶21 Regarding the third Carr factor, the administrative judge found that the
other doctors who were not whistleblowers were not similarly situated because
they had all met the eight -patient -per-day standard. ID at 32. Thus, to the extent
there is no evidence indicating that similarly situated non -whistleblowers were
treated differently than the appellants, the third Carr factor is not a significant
factor in the Board’s analysis. See Whitmore , 680 F.3d at 1374 (noting that the
agency is not required to submit evidence as to each Carr factor and recognizing
that the absence of evidence relating to the third Carr factor “can effectively
remove that factor from the analysis”).
¶22 For the reasons discussed in the initial decision and herein, we find that the
strength of the agency’s evidence in support of its actions outweighs any weak
motive to retaliate and our overall analy sis of the Carr factors supports the
conclusion that the appellant s are not entitled to corrective action .
The appellant s’ remaining arguments do not provide a basis for reversal.
¶23 The appellant s contend that the administrative judge erred in not allow ing
their attorney to use leading questions when examining agency officials they
called on direct examination. PFR File, Tab 1 at 3 -4, 15 . They contend that ,
pursuant to Federal Rule of Evidence 611, the administrative judge should have
permitted leading ques tions during examination of these officials. Id. The record
reflects that the administrative judge denied the appellants’ counsel’s request to
15
use leading questions , finding that although the agency officials were adverse
parties , they were not hostile w itnesses. HT at 463 -64. Federal Rule 611(c)(2)
states that leading questions should ordinarily be allowed “when a party calls a
hostile witness, an adverse party, or a witness identified with an adverse party. ”
¶24 However, t he Board regards the Federal Rules of Evidence as nonbinding
guidance and , thus, an administrative judge is not required to strictly adhere to
them . Social Security Administration v. Long , 113 M.S.P.R. 190 , ¶ 35 (2010),
aff’d , 635 F.3d 526 (Fed. Cir. 2011); Arterberry v. Department of the Air Force ,
25 M.S.P.R. 582 , 583 (1985). Further, administrative judges have broad
discretion in the manner in which the y conduct hearings. See Fritz v. Department
of Health and Human Services , 87 M.S.P.R. 287 , ¶ 15 (2000); 5 C.F.R.
§ 1201.41 (b). Nonetheless, w e have reviewed the record and find that to the
extent the administrative judge may have abused her discretion in not permitting
leading question s, any such abuse of discretion was not prejudicial to the
appellants because the record reflects that the agency officials were cooperative
witnesses and the appellants were able to elicit testimony regarding the relevant
issues. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984)
(stating that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision) .
¶25 Accordingly, we deny the appellants’ petition for review and a ffirm the
initial decisions , as modified .14
14 We have reviewed the relevant legislation e nacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
16
NOTICE OF APPEAL RIG HTS15
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 case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant 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).
15 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
17
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 , (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
18
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, cos ts, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
19
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.16 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gu ide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
16 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction exp ired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of A ppeals
for the Federal Circuit or any other circuit court 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
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants 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 | DOJ_DOCTORS_NY_1221_14_0202_W_1_FINAL_ORDER_2043341.pdf | 2023-06-22 | null | NY-1221 | NP |
3,005 | https://www.mspb.gov/decisions/nonprecedential/THOMAS_TIMOTHY_R_CH_0714_21_0152_A_1_FINAL_ORDER_2042631.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY R. THOMAS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0714 -21-0152 -A-1
DATE: June 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Cooper , Esquire, Griffith, Indiana, for the appellant.
Arlene Shively , Esquire, Brecksville, Ohio, for the agency.
Chadwick C. Duran , Esquire, and Elizabeth C. Rogers , Esquire,
Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 After issuance of the March 16, 2021 initial decision in this attorney fees
appeal, the parties notified the Board that they had settled the appeal. Attorney
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board.
2
Fees File, Tab 7; Petition for Review (PFR) File, Tab 1.2 For the reasons set
forth below, we DISMISS the appeal as settled.
¶2 The settlement agreement was signed and dated by the appellant on
April 28, 2021, and by the agency on April 29, 2021. PFR File, Tab 1. The
document provides, among other things, that the appellant agreed t o withdraw the
above -captioned attorney fees appeal in exchange for the promises made by the
agency.3 Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they underst and its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4, overruled on
other grounds by Delorme v. Department of the Interior , 124 M.S.P.R . 123 ,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled) .
¶4 Here, we find that the parties have e ntered into a settlement agreement, that
they understand its terms, and that they intend for the agreement to be entered
into the record for enforcement by the Board. PFR File, Tab 1 at 6. In addition,
we find that the agreement is lawful on its face and that the parties freely entered
into it. Accordingly, we find that dismissing the appeal “with prejudice to
2 As the initial decision had already been issued and become final by the time the
parties notified the Board of their settlement agreement, the submission was considered
and docketed as a petition for review of the initial decision. PFR File, Tabs 1 -2.
3 The settlement agreement contains a redaction. PFR File, Tab 1. The parties
subse quently clarified that the redaction is intentional and that neither the appellant nor
the agency oppose it. PFR File, Tabs 3 -4.
3
refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances, 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 settlement agreement by
promptly filing a petiti on 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 incl ude the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not repres ent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits an d requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calend ar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer an d to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the B oard’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney 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 | THOMAS_TIMOTHY_R_CH_0714_21_0152_A_1_FINAL_ORDER_2042631.pdf | 2023-06-21 | null | CH-0714 | NP |
3,006 | https://www.mspb.gov/decisions/nonprecedential/BROOME_ROBERT_DC_0831_18_0676_I_1_REMAND_ORDER_2042641.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT BROOME,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0831 -18-0676 -I-1
DATE: June 21, 2023
THIS ORDER IS NONPRECEDENTIAL1
Robert Broome , King George, Virginia, pro se.
Carla Robinson , 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, w hich
dismissed his appeal as withdrawn. For the reasons discussed below, we GRANT
the appe llant’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
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 case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 On July 5, 2018, the Office of Perso nnel Management (OPM or agency )
issued a final decision recalculating the appellant’s annuity benefit under the
Civil Service Retirement System . Initial Appeal File (IAF), Tab 6 at 4 -5. On
July 16, 2018, the appellant filed a Board appeal contesting OPM’s computation .
IAF, Tab 1. In an August 13, 2018 order, the admi nistrative judge informed the
parties that he would initiate a telephonic status conference on September 5,
2018. IAF, Tab 4.
¶3 The agency representative was present for the September 5, 2018 status
conference, but the appellant did not appear. IAF, Tab 7 . T he agency
representative told the administrative judge that she had spoken with the appellant
and that the appellant had told her he wished to withdraw his appeal. Id. The
follow ing day, September 6, 2018, the administrative judge issued an order
summarizing the status conference. Id. He notified the appellant that if he
withdrew his appea l, it would be dismissed with prejudice, and he directed the
appellant to notify the Board of his decision by September 14, 2018. Id. The
administrative judge stated that if he did not receive notice by that date, he would
dismiss the appeal as withdrawn. Id. The appellant did not respond to the order,
and on September 18, 2018, the administ rative judge issued an initial decision
dismissing the appeal . IAF, Tab 8, Initial Decision.
¶4 On October 15, 2018, the appellant filed a timely petition for review, in
which he contended that he never asked to withdraw his appeal . Petition for
Review (P FR) File, Tab 1 at 2. The agency filed a response. PFR File, Tab 3.
¶5 Subsequently, on January 24, 2023, the appellant submitted an additional
pleading, in which he requested that the Board “end adjudication” of the case .
PFR File, Tab 10. On January 27, 2023, the Acting Clerk of the Board issued an
3
order ins tructing the appellant to file a pleading within 7 days of the order
confir ming whether he wishe d to withdraw his petition for review pursuant to the
Board’s June 28, 2022 Policy Regardi ng Clerk’s Authority to Grant Requests to
Withdraw Petitions for Review .2 PFR File, Tab 11 at 2. The order explained that
if the appellant did not respond to the order within 7 days , the Board would
assume that he did not wish to withdraw his petition fo r review and would instead
issue a decision on the petition. Id. The appellant did not respond within 7 days
but filed a response over 3 months later that did not clearly confirm his intent to
withdraw his petition. PFR File, Tab 12. The Acting Clerk of the Board issued
another order, again ordering the appellant to confirm whether he wished to
withdraw his petition and explaining that if he did not respond within 7 days, the
Board would assume that he did not wish to withdraw his petition for review and
would instead issue a decision on the petition. PFR File, Tab 13. The appellant
did not respond.
ANALYSIS
¶6 Ordinarily, an appellant’s withdrawal of an appeal is an act of finality, and
in the abs ence of unusual circumstances such as misinformation or new and
material evidence, the Board will not reinstate an appeal once it had been
withdrawn. Cason v. Department of the Army , 118 M.S.P.R. 58, ¶ 5 (2012).
However, a relinquishment of one’s right to appeal to the Board must be by clear,
unequivocal, and decisive action. Id.
¶7 Here, the appellant did not take any affi rmative s tep to inform the
administrative judge of a desire to withdraw his appeal. Rather, he failed to
2 Pursuant to the Board’s Delegations Manual at § 2.3.5.1, the Office of the Clerk of the
Board has delegated authority to grant a petitioner’s request to withdraw his petition for
review. Vice Chai rman Cathy A. Harris, Member Raymond A. Limon and former
Member Tristan L. Leavitt issued a policy effective June 28, 2022, stating that the
Clerk may now exercise the delegated authority to grant a withdrawal of a petition for
review when requested by a p etitioner if there is no apparent untimeliness of the
petition and if no other party objects to the withdrawal .
4
respond to the administrative judge’s order to clarify whether he wished to
withdr aw his appeal or not. While the appellant’s noncompliance with that order
might have warranted a sanction un der 5 C.F.R. § 1201.43 , his silence did not
amount to a clear, unequivocal, and decisive action to relinqui sh his appeal right .
See Lopez v. Department of the Interior , 94 M.S.P.R. 393 , ¶ 6 (2003) (concluding
that when the appellant was pro se, there was no record of her request to
withdraw her appeal, and she asserted on review that she did not intend to
withdraw her appeal, she did not clearly, unequivocally, and decisively withdraw
her appeal); Spencer v. Railroad Re tirement Board , 93 M.S.P.R. 80 , ¶ 5 (2002)
(same). Furthermore, a s discussed above, the appellant has not clearly indicated
that he wishes to withdraw his petition for review of the initial decisi on.
Accordingly, we reinstate the appeal.
ORDER
¶8 For the reasons discussed above, we vacate the initial decision and 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 | BROOME_ROBERT_DC_0831_18_0676_I_1_REMAND_ORDER_2042641.pdf | 2023-06-21 | null | DC-0831 | NP |
3,007 | https://www.mspb.gov/decisions/nonprecedential/HABASH_JANICE_H_DC_1221_16_0468_W_2_FINAL_ORDER_2042660.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JANICE H. HABASH,
Appellant,
v.
DEPARTMENT OF EDUCAT ION,
Agency.
DOCKET NUMBER
DC-1221 -16-0468 -W-2
DATE: June 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan L. Lescht , Esquire, Washington, D.C., for the appellant.
Michael S. Taylor , 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 p etition for review of the initial decision, which
granted the appellant’s request for corrective action in this individual right of
action appeal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision co ntains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence of legal argument is available that, despite the p etitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the fil ings 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 evidentiary standard a pplicable to the agency’s burden to prove that it
would have taken the same action in the absence of the appellant’s protected
disclosure, we AFFIRM the initial decision.2
¶2 On petition for review, the agency argues that the administrative judge erred
in fin ding that the appellant established jurisdiction over her appeal and that she
proved a prima facie case of whistleblower reprisal. Petition for Review (PFR)
File, Tab 1 at 5 -17. We find no basis to disturb those findings in the initial
decision.
¶3 The agen cy also argues that the administrative judge erred in finding that it
failed to prove that it would have taken the same action in the absence of the
appellant’s whistleblowing. PFR File, Tab 1 at 17 -24. Except as modified
herein, we affirm the administra tive judge’s finding.
2 The appellant asks the Board to dismiss the agency’s petition for review for failure to
provide interim relief. P etition for Review File, Tab 6 at 4. In light of our decision to
deny the age ncy’s petition for review on the merits and order the agency to provide full
relief consistent with law, the appellant’s request is moot. See Coffey v. U.S. Postal
Service , 77 M.S.P.R. 281 , 286 (1998). If the appellant believes that the agency has not
provided full relief in accordance with this final decision , the appellant may file a
petition for enforcement pursuant to 5 C.F.R. § 1201.116 (g) and 5 C.F.R. § 1201.183 .
3
¶4 As the administrative judge correctly noted in the initial decision, once an
appellant has shown by preponderant evidence that she made protected
disclosures that were a contributing factor in the decision to take a personnel
action, the Board will order corrective action unless the agency shows by clear
and convincing evidence that it would have taken the personnel action in the
absence of the whistleblowing. Refiled Appeal File, Tab 30, Initial Decision (ID)
at 14. However, in the last paragraph of the initial decision, the administrative
judge found that the agency had “failed to establish by preponderant evidence”
that it would have taken the same personnel action in the absence of the
appellant’s whistleblowing. ID at 19. We mo dify the initial decision to clarify
that the agency must meet its burden by the higher clear and convincing evidence
standard. See 5 C.F.R. § 1209.4 (e).
¶5 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
appellant’s whistleblowing, the Board generally considers the following factors:
(1) the strength of the agency’s evidence in support of it s action; (2) the existence
and strength of any motive to retaliate on the part of 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 other wise
similarly situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323
(Fed. Cir. 1999); Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489 ,
¶ 28 (2015), aff’d , 652 F. App’x 971 (Fed. Cir. 2016). The Board does not review
these factors as discrete e lements, each of which the agency must prove by clear
and convincing evidence. Rather, the Board will weigh the factors together to
determine whether the evidence is clear and convincing as a whole. See, e.g. ,
Yunus v. Department of Veterans Affairs , 84 M.S.P.R. 78 , ¶ 27 (1999), aff’d ,
242 F.3d 1367 (Fed. Cir. 2001). We have considered the Carr factors in light of
the arguments raised on review , and we find that the agency failed to prove by
4
clear and convincing evidence that it would have reassigned the appellant in the
absence of her whistleblowing. We therefore affirm the initial decision.
ORDER
¶6 We ORDER the agency to place the appellant into a supervisory position
with similar duties, responsibilities, and office space to that of her previous
position as Director of Por tfolio Performance Management Services. 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.
¶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 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.
¶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 i ts 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 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).
5
¶10 For agencies whose payroll is administ ered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board deci sion
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the 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 m eet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REG ARDING
YOUR RIGHT TO REQUES T CONSEQUENTIAL AND/ OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foresee able consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
6
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIE S
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action unde r [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be tak en against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIG 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 such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situ ation and
the rights described below do not represent a statement of how courts will rule
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representati ve receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, nati onal origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information f or U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative i n this case,
and your representative receives this decision before you do, then you must file
9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. ma il, 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, i t must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option a pplies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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 practic es described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 app eals 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of App eals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals fo r the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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 payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings document ation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of t he period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | HABASH_JANICE_H_DC_1221_16_0468_W_2_FINAL_ORDER_2042660.pdf | 2023-06-21 | null | DC-1221 | NP |
3,008 | https://www.mspb.gov/decisions/nonprecedential/TUCKER_JAMES_DE_4324_22_0298_I_1_ORDER_2042761.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES TUCKER,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DE-4324 -22-0298 -I-1
DATE: June 21, 2023
THIS ORDER IS NONPRECEDENTIAL1
James Tucker , Omaha, Nebraska , pro se.
Matthew John Mackey and Rachel Palacios , Joint Base Andrews,
Maryland, for the agency .
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
ORDER DENYING MR. DO WLING’S MOTION TO IN TERVENE
¶1 Jonathan Dowling, a Commander in the Judge Advocate Gener al’s Corps,
Department of the Navy, has moved to intervene in the above -captioned appeal
for the purpose of filing a petition for review of the initial decision issued on
April 13, 2023, which denied the appellant’s request for corrective action under
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
the Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA) . For the reasons set
forth below, Mr. Dowling’s motion to intervene is D ENIED .
BACKGROUND
¶2 The appellant filed a Board appeal, alleging that the agency violated
USERRA when it failed to select him for an Attorney -Advisor position. Initial
Appeal File (IAF), Tab 1. Mr. Dowling, who was the hiring panel chair for the
vacanc y announcement at issue, testified at the appellant’s Board hearing as the
appellant ’s witness , claiming, among other things, that another panelist, the
Senior Civilian Advisor, had made statements indicating that he had a strong
preference for hiring civilians over members of the military reserves . Hearing
Recording (testimony of Dowling).
¶3 After considering both the written record and the hearing testimony, the
administrative judge issued an initial decision finding that the appellant failed to
establis h his USERRA claim. IAF, Tab 30, Initial Decision (ID). First, the
administrative judge explained that the only evidence suggesting that the
appellant’s uniformed service was a substantial or motivating factor in his
nonselection was Mr. Dowling’s testim ony. ID at 11 -12. The administrative
judge credited the testimony of the Senior Civilian Advisor, noting that there was
evidence Mr. Dowling may have been biased because he had a personal friendship
with the appellant and a negative relationship with the Senior Civilian Advisor.
ID at 11. Thus, the administrative judge concluded that there was simply “no
credible direct evidence of uniformed service discrimination.” Id. The
administrative judge also found that, even if the appellant’s uniformed servic e
was a substantial or motivating factor in the Senior Civilian Advisor’s rankings ,
the agency established that it still would have selected the same individual , given
that the selectee was the top -ranked candidate and wa s even strongly endorsed by
Mr. Dow ling. ID at 12.
3
¶4 Mr. Dowling now seeks to intervene in this matter for purposes of filing a
petition for review, asserting that the administrative judge’s findings have caused
him harm.2 Motion to Intervene at 4. Among other things, Mr. Dowling argues
that the initial decision undermined his credibility and judgment, which would
hinder his abilit y to obtain relief in complaints he filed against his employing
agency , and that his career had been negatively impacted because of th e Board
proceeding .3 Id.
ANALYSIS
¶5 Pursuant to the Board’s regulations, any person, organization, or agency, by
motion made in a petition for review, may ask for permission to intervene.
5 C.F.R. § 1201.114 (i)(3 ). Here, Mr. Dowling has not yet filed a petition for
review, instead merely asking that the Board grant his request to file a petition for
review in the future . Motion to Intervene at 2-4, 17, 25. Accordingly, he has not
filed “a motion made in a petit ion for review,” as required by 5 C.F.R.
§ 1201.114 (i)(3).
¶6 Nevertheless, even if we were to liberally construe Mr. Dowling’s filing as
a petition for review, he has not met the regulat ory standard for granting a request
to intervene. The Board’s regulations provide that a motion for permission to
2 The agency filed an opposition to Mr. Dowling’s motion to intervene on June 12,
2023. Agency Response to Motion to Intervene. Pursuant to 5 C.F.R. § 1201.55 (b),
any objection to a written motion must be filed within 10 days from the date of service
of the motion. The certificate of service states that the motion to intervene was served
by email on the agency on May, 18, 2023, and thus, accounting for a Sunday and
Federal holiday, the agency’s deadline to file its objection was May 30, 2023. Motion
to Intervene at 26; 5 C.F.R. § 1201.23 . Accordingly, the age ncy’s response to the
motion to intervene was untimely filed , and we shall not consider it.
3 Mr. Dowling also attached two exhibits to his motion to intervene, seemingly
addressing the substance of his challenges to the initial decision, including an emai l
memorializing a statement the Senior Civilian Advisor allegedly made regarding his
reluctance to hire reservists and a copy of Mr. Dowling’s Freedom of Information Act
request. Because Mr. Dowling has failed to establish the relevancy of these documents
to his motion to intervene, we do not address them further.
4
intervene will be granted if the requester shows that he will be affected directly
by the outcome of the proceeding. 5 C.F.R. § 1201.114 (i)(3) Given that the
initial decision has been issued , we are able to determine that the outcome had no
direct effect on Mr. Dowling. Mr. Dowling was not named as a responsible
official i n this appeal, and there is no adverse finding impacting Mr. Dowling.
While Mr. Dowling asserts that the administrative judge’s findings may hinder
his ability to obtain relief in future proceedings, such statements are mere
speculation and do not warrant intervention .4 Motion to Intervene at 4; see
Stevens v. Department of Housing and Urban Development , 36 M.S.P.R. 170 , 173
(1988) (finding t hat intervention was not warranted when there was no evidence
beyond mere speculation that the initial decision would have any impact on the
movant’s future).5
¶7 In conclusion, Mr. Dowling is merely a witness who is disa ppointed with
the outcome of this appeal. While the administrative judge’s findings may be
bothersome to him, there is no basis for granting intervention.
4 Mr. Dowling alleges that the agency retaliated against him as a result of his internal
reports and his testimony regarding the agency’s alleged violations of USERRA, which
is the subject of a complaint filed with the Commander of the U.S. Strategic Command
and a complaint filed with the Department of Defense Office of Inspector General.
Motion to Intervene at 4.
5 Although Stevens , 36 M.S.P.R. at 172 -73, interpreted 5 C.F.R. § 1201.34 , the
regulation governing intervention before an administrative judge, the language of
5 C.F.R. § 1201.114 (i)(3) and 5 C.F.R. § 1201.34 are similar, including that both
require that the movant show that he will be affected directly by the outcome of the
proceeding. Therefore, we find the reasoning in Stevens to be persuasive here .
5
ORDER
¶8 The motion to intervene is denied . The i nitial decision issued on April 13,
2023, became the final decision of the Board on M ay 18, 2023 . 5 C.F.R.
§ 1201.113 (c). The notice of appeal rights contained within the final decision
governs further review rights , including any applicable time frames for exercising
those rights .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TUCKER_JAMES_DE_4324_22_0298_I_1_ORDER_2042761.pdf | 2023-06-21 | null | DE-4324 | NP |
3,009 | https://www.mspb.gov/decisions/nonprecedential/SEWARD_PENNY_J_DA_0752_17_0332_I_1_REMAND_ORDER_2042799.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PENNY J. SEWARD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0752 -17-0332 -I-1
DATE: June 21, 2023
THIS ORDER IS NONPRECEDENTIAL1
Penny J. Seward , Conway, Arkansas, pro se.
Thomas Kent Smith , Esquire, North Little Rock, Arkansas, 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 appeal for lack of jurisdiction . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 regul ation 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 t he resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 12 01.115 ( 5 C.F.R. § 1201.115 ). For
the reasons discussed below, we DENY the petition for review , VACATE the
initial decision , and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The record reflects that the agency proposed the appellant’s r emoval on
March 6, 2014, and subsequently issued a decision letter on May 30, 2014,
removing her. Initial App eal File (IAF), Tab 6 at 8 6-88, Tab 15 at 4-9. The
parties entered into a last chance agreement ( LCA ) on June 2, 2014. IAF, Tab 6
at 89 -90. Under the provisions of the agreement, the agency held the removal in
abeyance for a period of 3 years. Id. In return, the appellant agreed to accept a
voluntary downgrade from Human Resources Specialist, GS -11, Step 7, to
Program Specialist GS -9, Step 10, and “to abide by all Medical Center
Memorandums, policies, VA rules and regulations regarding conduct and
beha vior.” Id. at 89. The appellant agreed to waive her right to appeal any
removal, should she be removed during the period of the agreement. Id. The
LCA specifically included a waiver of her right to appeal the removal to the
Board. Id. On October 28, 2015, the agency notified the appellant that she had
not complied with the LCA and that she would be removed effective November 2,
2015. Id. at 47 -48. The appellant resigned from her position effective
October 30, 2015, three days before the effective date of the removal action.
3
Seward v. Department of Veterans Affairs , MSPB Docket No. DA -3443 -17-0176 -
I-1, Initial Appeal File (0176 IAF), Tab 9 at 47.
¶3 The appellant filed a formal equ al employment opportunity complaint on
November 5, 2015, alleging that her resignation was involuntary. IAF, Tab 6
at 20-45. The agency’s Office of Employment Discrimination Complaint
Adjudication issued a final agency decision on January 19, 2017. Id. The
appellant then filed a timely Board appeal based on her allegedly involuntary
resignation. 0176 IAF, Tab 1. On May 3, 2017, t he parties entered into a
settlement agreement of that Board appeal , which resulted in the rescission of the
appellant’s resignation and the reinstatement of her removal , and she was
removed effective November 2, 2015 . IAF, Tab 1 at 7-9.
¶4 On May 25, 2017, the appellant filed an appeal of her November 2, 2015
removal. IAF , Tab 1.2 After holding a jurisdictional hearing, the administrative
judge issued an initial decision that dismissed the appeal for lack of jurisdiction ,
finding that the agency did not breach the LCA and that the appellant had waived
her Board appeal rights in the June 2, 2014 LCA . IAF, Tab 17, Initial Decision
(ID) at 14 -15.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition for review. PFR File,
Tab 2.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 Although not raised by either party, we find that a ques tion exists regarding
the administrative judge’s determination that the Board does not have jurisdiction
over the appellant’s removal appeal . See Martin v. Office of Personnel
2 The administrative judge addressed the timeliness of this appeal and found that the
appellant acted diligently in pursuing her rights under the particular circumstances in
this case, and thus, she found good cause for the appellant’s delay in filing this appeal.
ID at 4 n.1. We find no basis up on which to disturb the administrative judge’s
timeliness determination.
4
Management , 77 M.S.P.R. 298, 300 (1998 ) (holding that the Board may raise the
matter of it s own jurisdiction sua sponte); Morgan v. Department of the Navy ,
28 M.S.P.R. 477 , 478 (1985) (holding that the issue of jurisdiction may be raised
at any time during a proceeding ). Specifically, we find that in determining that
the Board lacks jurisdiction over the a ppellant’s removal action, the
administrative judge di d not fully consider the May 3, 2017 settlement agreement
or its terms.
¶7 The Board has broad authority to enforce the terms of a settlement
agreement entered into the record. LaMontagne v. U.S. Postal Service ,
91 M.S.P.R. 304, ¶ 6 (2002). Because a settlement agreement is a contract, the
terms of a settlement agreement shoul d be interpreted as a question of contract
law. Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988). In
construing the terms of a settlement agreement, the words of the agreement itself
are of paramount importance. Id. The Board lacks authority to add terms to an
agreement that were not agreed upon by both parties. Murphy v. U.S. Postal
Service , 54 M.S.P.R. 202 , 205 (1992).
¶8 Here, t he May 3, 2017 agreement explicitly provides that the appellant
“retains the right to file a Board appeal regarding the removal actio n described in
paragraph 2a.” IAF, Tab 1 at 7. Paragraph 2a states that the agency agrees to
“[r]emove from the Appellant’s electronic Official Personnel File (eOPF) the
Notification of Personnel Action dated October 30, 2015, with the nature of
action, ‘RESIGN -IN LIEU OF INVOL ACTION’ and replace it with a
Notification of Personnel Action dated November 2, 2015, with a nature of
action, ‘REMOVAL .’” Id. Thus, the agreement explicitly provides that the
appellant retains her right to file a Board appeal of the November 2, 2015
removal action. The terms of the settlement agreement further provide that the
agreement “constitutes the entire and complete understanding between the parties.
There are no other terms or commitments, either oral or written, to this
Agreement except those specified herein.” Id. at 8.
5
¶9 In this case, even though there was an earlier LCA dated June 2, 2014, in
which the appellant waive d her Board appeal rights ove r her removal action, this
new agreement does not include a waiver provision. Rather, it specifically
provides the appellant with Board appeal rights over the r emoval action dated
November 2, 2015. Id. at 8. Moreover, the May 3, 2017 settlement agreemen t
omits any reference to the June 2, 2014 LCA. Accordingly, we find that the
May 3, 2017 settlement agreement supersedes the June 2, 2014 LCA, see Alvarez
v. Office of Personnel Management , 60 M.S.P.R. 436, 439 -40 (1994), and that the
provisions of the May 3, 2017 settleme nt agreement explicitly provide the
appellant with “the right to file a Board appeal” regarding the November 2, 2015
removal action. Thus, we find that the administrative judge erred in dismissing
this appeal for lack of jurisdiction based on the terms of the LCA. Accordingly,
we remand th is appeal to the Dallas Regional Office for further adjudication of
the agency’s removal action.
ORDER
¶10 For the reasons discussed above, we remand this case to the Board’s Dallas
Regional Office for further adjudication in accordance with this Remand Orde r.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SEWARD_PENNY_J_DA_0752_17_0332_I_1_REMAND_ORDER_2042799.pdf | 2023-06-21 | null | DA-0752 | NP |
3,010 | https://www.mspb.gov/decisions/nonprecedential/EOTVOS_JEROMY_CURTIS_CH_0752_17_0355_I_1_FINAL_ORDER_2042829.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEROMY CURTIS EOTVOS ,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-0752 -17-0355 -I-1
DATE: June 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeromy Curtis Eotvos , Montgomery, Minnesota, pro se.
Justin Baker and Jennifer Diaz , Saint Paul, Minnesota, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The a gency has file d a petition for review of the initial decision, which
reversed the appellant’s removal for misconduct. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous a pplication of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error 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 to VACATE the administrative judge’s ruling on venue,2 we
AFFIRM the initial decision.
ORDER
¶2 We ORDER the agency to cancel the appellant’s removal and to restore him
effective March 13 , 2017.3 See Kerr v. National Endowment for the Arts ,
2 The administrative judge’s ruling that the agency was precluded from initiating a
parallel administrative process to determine the appellant’s fitness for mili tary duty
amounted to an advisory opinion. Initial Appeal File, Tab 19. The Board is prohibited
by statute from issuing advisory opinions. 5 U.S.C. § 1204 (h).
3 The record is not entirely clear on the effective date of the removal. Dual -status
technicians, like the appellant, have the right to appeal an adverse action decision to the
Adjutant General before filing a Board appeal. Initial Appeal File (IAF), Tab 4
at 58-59. The agency’s January 5, 2017 original decision letter indicates that the
appellant’s removal would be effective February 5, 2017. Id. at 58. However, the
appellant appealed the original decision to the Adjutant General, who sustained it on
March 13, 2017, with a letter sugge sting that the removal penalty had not yet been
imposed but not specifying a new date for the action to become effective. Id. at 76.
The Standard Form 50 documenting the removal reflects an effective date of April 15,
2017. Id. at 11. This is also the effective date that the appellant indicated on his initial
appeal form. IAF, Tab 1 at 3. Nevertheless, in her initial decision reversing the
removal, the administrative judge ordered the agency to restore the appellant to duty
effective March 13, 2017 —the date of the Adjutant Gene ral’s decision. IAF, Tab 47
at 10. Because neither party disputes the accuracy of this date for purposes of status
quo ante relief, we are operating under the assumption that it was, in fact, the effective
date of the appellant ’s removal. Nevertheless, should any addendum proceedings in
this case be necessary, the parties should clarify the matter during those proceedings.
3
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 agenc y to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, in terest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶4 We further ORDER the agency to tell the appellant promptly in writing
when it believes it ha s fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R . § 1201.181 (b).
¶5 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appel lant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any c ommunications with the agency. 5 C.F.R. § 1201.182 (a).
¶6 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Def ense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentati on necessary to process payments and adjustments resulting from the
4
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNE Y FEES AND COSTS
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
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal 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 fil ing time limits and requirements. Failure to file
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
within the applicable time limit may result in the dismissal of 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.
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 tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then yo u must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 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.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 cour t of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblow er reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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,” 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
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 p aid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement 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 t he 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 separa te 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 Diffe rential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agen cy.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certi fication of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion com putation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | EOTVOS_JEROMY_CURTIS_CH_0752_17_0355_I_1_FINAL_ORDER_2042829.pdf | 2023-06-21 | null | CH-0752 | NP |
3,011 | https://www.mspb.gov/decisions/nonprecedential/PETOSKEY_TIM_SF_3443_16_0808_I_1_FINAL_ORDER_2042834.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIM PETOSKEY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-3443 -16-0808 -I-1
DATE: June 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan Harvey , Esquire, Vancouver, Washington, for the appellant.
Glen E. Woodworth , Esquire, Anchorage, Alaska, 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 for lack of jurisdiction . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
interpreta tion 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 ab use of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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 holds the position of Police Officer with the Veterans Affairs
Health Care System in Seattle , Washington. Initial Appeal File (IAF), Tab 1 at 7.
On August 2, 2016, the agency issued the appellant a letter of counseling based
on an email he sent on July 19, 2016. IAF, Tab 6 at 35. On August 23, 2016, the
agency issued him a written admonishmen t based on his conduct on July 27,
2016. Id. at 18 -19, 29 .
¶3 The appellant , through his attorney, filed a Board appeal challenging the
letter of counseling and admonishment , and he requested a hearing . IAF, Tab 1
at 1-6.2 On the initial appeal form , he indicated that he had not filed a
whistleblowing complaint with the Office of Special Counsel (OSC). Id. at 5.
The administrative judge issued an acknowledgment order that inform ed the
appellant that he appeared to be challenging a letter o f admonishment, which is
not an appealable action . IAF, Tab 2 at 2. She ordered him to file evidence and
argument showing that the matter appealed is an “otherwise appealable action” as
2 The appellant also claimed to have attached a “letter of suspension,” however, no such
document appears in the record. IAF, Tab 1 at 4, 7 -27.
3
defined at 5 C.F.R. § 1209.2 (b)(2) or that he had first sought corrective action
from OSC. Id. In response, the appellant alleged that the agency took
disciplinary actions against him “within months ” of serving as “a material witness
against the interests of management” in an Administrative Board Inquiry . IAF,
Tab 5 at 6. He further asserted that he “engaged in whistleblower or protected
activities in that investigation,” which found that “management engaged in
discriminatory activity and the creati on of a hostile work environment requiring
corrective action .” Id. In addition, he submitted supporting documentation. IAF,
Tab 4 . The agency moved to dismiss the appeal for lack of jurisdiction . IAF,
Tab 6 at 4-6.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision granting the agency’s motion and dismissing the appeal for lack of
jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1, 4. Specifically, she found
that the letter of counseling and letter of admonishment were not the type of
actions that are independently appealable to the Board, and the appellant failed to
establish that he exhausted his administrative remedies before OSC regarding any
allegation s of reprisal for whistleblowing or other protected activities , which
would be a prerequisite for filing an individual right of action (IRA) appeal on
such reprisal claims . ID at 3-4.
¶5 The appellant has filed a petition for review arguing that new and material
evidence esta blishes that he exhausted his administrative remedies with OSC .
Petition for Review (PFR) File, Tab 1 at 8-9. The agency has filed a response
opposing the petition . PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has failed to make a no nfrivolous allegation of Board jurisdiction
over an otherwise appealable action.
¶6 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 bears the
4
burden of proving the Board’s jurisdiction by preponderan t evidence. 5 C.F.R.
§ 1201.56 (b)(2)(i)(A). Generally, an appellant is entitled to a jurisdictional
hearing if he raises a nonfrivolous allegation3 of Board jurisdiction over his
appeal. Edwards v. D epartment of the Air Force , 120 M.S.P.R. 307 , ¶ 6 (2013).
¶7 For the reasons described in the initial decision, the appellant failed t o
nonfrivolously allege that the Board has jurisdiction over an otherwise appealable
action . ID at 2-4; see 5 U.S.C. § 7512 (1)-(5); 5 C.F.R. §§ 1201.3 (a),
1209.2(b)(2) ; see also Pridgen v. Office of Management and Budget ,
117 M.S.P.R. 665 , ¶ 7 (2012) ( stating that the Board does not have jurisdiction
over discrimination claims absent an otherwise appealable action); Wren v.
Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (finding that prohibited
personnel practices under 5 U.S.C. § 2302 (b) are not an independent source of
Board jurisdiction), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982) . The parties do
not dispute this finding on review and, based on our review of the record, we find
no reason to disturb it. PFR File, Tabs 1, 3.
The Board lacks jurisdiction over this matter as an IRA appeal .
¶8 The Board may have jurisdiction over the appellant’s claims of retaliation
for whistleb lowing or other protected activity in an IRA appeal .4 See 5 U.S.C.
§§ 1214 (a)(3), 1221(a) ; Davis v. Department of Defense , 103 M.S.P.R. 516 , ¶ 7
(2006) (explaining that the Board has jurisdiction over whistleblow er reprisal
3 A nonfrivolous allegation is an assertion that, if p roven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
4 Effective December 27, 2012, t he Whistleblower Protection Enhancement Act of 2012
(WPEA), Pub. L. No. 112 -199, 126 Stat. 1465, expanded the grounds on which an IRA
appeal may be filed with the Board. See Alarid v. Department of the Army ,
122 M.S.P.R. 600 , ¶ 12 (2015). Prior to the enactment of the WPEA, an appellant could
only file an IRA appeal with the Board based on allegations of whistleblower reprisal
under 5 U.S.C. § 2302(b)(8). Id. Following the WPEA’s enactment, howe ver, an
appellant also may file an IRA appeal with the Board concerning alleged reprisal based
on certain other classes o f protected activity as defined in 5 U.S.C. § 2302 (b)(9)(A)(i),
(B), (C), and (D). The relevant holdings of pre -WPEA cases that we have cited in this
Final Order have not been affected by the WPEA .
5
claims raised in connection with an otherwise appealable action or, if the action is
not otherwise directly appealable to the Board, in an IRA appeal) ; 5 C.F.R.
§ 1209.2 (b)(1) ; see also Massie v. Department of Transportat ion, 114 M.S.P.R.
155, ¶ 13 (2010) (recognizing that an admonishment is a personnel action upon
which an IRA appeal may be based) ; but see Johnson v. Department of Health
and Human Services , 87 M.S.P.R. 204 , ¶ 11 (2000) (finding that a memorandum
of oral counse ling was not a personnel action ). Once an appellant establishes
jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his
claim, which he must prove by preponderant evidence. Salerno v. Department of
the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016).
¶9 The first element of Board jurisdiction over an IRA appeal is exhaustion by
the appellant of his administrative reme dies before OSC . Miller v. Federal
Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶ 6 (2014), aff’d per curiam ,
626 F. App’x 261 (Fed. Cir. 2015) . Specifically, 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 , 122 M.S.P.R.
3, ¶ 6. The substantive requirements of exhaustion are met when an appellant has
provided OSC with a suffici ent basis to pursue an investigation. Chambers v.
Department of Homeland Security , 2022 MSPB 8 , ¶ 10. The Board’s jurisdiction
over an IRA appeal is limited to those issues that have been previously raised
with OSC, but appellants may give a more detailed account of their
whistleblowing activities before the Board than they did to OSC. Id. Appellants
may demonstrate exhaustion of their OSC remedies with evidence regarding their
initial OSC complaint and other communications with OSC concerning their
allegations. See Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469,
¶ 8 (2010).
¶10 Here, we find that the administrative judge’s acknowledgment order and the
agency’s motion to dismiss correctly informed the appellant that he needed to
establish that he first sought corrective action from OSC regarding his allegations
6
of retaliation for whistleblowing or other protected activity in connection with
actions that were not otherwise appealable . IAF, Tab 2 at 2, Tab 6 at 5.
However, the appellant did not file any evidence or argument regarding this issue
below . To the contrary, his initial appeal form stated that he had not filed a
whistleblowing comp laint with OSC. IAF, Tab 1 at 5. Thus, t he administrative
judge properly found that the appellant failed to establish that he exhaust ed his
administrative remedies before OSC . ID at 4.
¶11 With his petition for review, the appellant for the first time has submitted
evidence , predating his initial Board appeal, purportedly showing that he
exhausted his administrative remedies before OSC. PFR File, Tab 1.
Specifically , the appellant has submitted two email chains dated July 19-20, 2016,
and August 24, 2016. Id. at 10 -15. In the July 19-20, 2016 email chain, the
appellant informed an OSC employee that the agency intended to suspend him on
July 19, 2016, for sending an email, and he requested that someone from OSC
join a “fact finding” meeting scheduled for July 2 1, 2016. Id. at 14 -15. The OSC
employee responded that he could requ est information from the agency but could
not represent the appellant . Id. at 13. In the August 24, 2016 email chain
concerning the appellant’s 24 -page facsimile, which is n ot included in this record ,
the OSC employee instructed another individual, who is presumably also an OSC
employee, to add the information to the appellant’s existing complaint under OSC
File No. MA-16-1677. Id. at 11-12. The OSC employee then told the a ppellant
to “[k]nock this off , please ” and just send “a little” email about issues that he
wanted to add to his complaint . Id. at 10. The appellant apologized and stated
that he would send an email. Id.
¶12 The Board generally will not consider evidence submitted for the first time
on review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence . See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211 , 214 (1980) ; 5 C.F.R. § 1201.115 (d). Here, the appellant’s
attorney asserts that the emails submitted on review were unavailable when the
7
record closed because their “import was not readily accessible to a lay person”
and he received them from the appellant after the issuance of the initial decision.
PFR File, Tab 1 at 4, 6, 8. The appellant’s attorney further claims that he had
been unaware of the facts and circumstances surrounding the appellant’s
communications with OSC in the emails . Id. at 7. We find that these
explanations fail to show that the appellant exercised due d iligence whe n the
emails predated his initial appeal and , as discussed above, he received notice of
his burden of establishing OSC exhaustion.
¶13 In addition, we find that the emails submitted on review are not of sufficient
weight to warrant an outcome dif ferent from that of the initial decision because
they do not establish that the appellant exhausted his administrative remedies
before OSC regarding the actions at issue in this appeal .5 Although the appellant
asserted in the July 19-20, 2016 email chain that the agency unlawfully suspended
him and took away his badge and credentials, he did not claim that such actions
were taken in retaliation for whistleblowing or other protected activity . Id. at 14.
Moreover, nothing in the August 24, 2016 email chain explains what additional
matter was added to the appellant’s existing OSC complaint or specifies the
substance of his complaint . Id. at 10-11. Therefore, we find the emails fail to
establish that the appellant provided OSC wi th a sufficient basis to pursue an
investigation into his claim s of retaliation for whistleblowing or other protected
activity. See Sabbagh v. Department of the Army , 110 M.S.P.R. 13 , ¶ 15 (2008)
(finding that the appellant failed to exhaust her administrative remedy before
OSC because she did not allege whistleblower reprisal before OSC regarding the
5 The appellant’s attorney argues and states in a declaration submitted on review that
the emails concern an ongoing OSC investigation into a “form 11” matter, specifically ,
a “pending whistleblower action .” PFR File, Tab 1 at 6 -7. We assume that the
appe llant’s attorney is referring to Form OSC -11, “Complaint of Possible Prohibited
Personnel Practice or Other Prohibited Activity.” See Sabbagh v. Department of the
Army , 110 M.S.P.R. 13 , ¶ 15 (2008) . However, the emails submitted on review do not
describe the circumstance s upon which the appellant’s existing complaint is based.
PFR File, Tab 1 at 10-15.
8
claims that she raised in her IRA appeal) ; see also Miller , 122 M.S.P.R. 3 , ¶ 6.
Because the appellant has failed to satisfy the OSC exhaustion requirement, the
Board lacks jurisdiction to consider his claims of retaliation for whistleblowing or
other protected activity in an IRA appeal .6
¶14 Accordingly, we find that the administrative judge properly dismissed this
appeal for lack of jurisdiction.
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 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
6 This Final Order does not preclude the appellant from filing a new IRA appeal with
the Board’s regional office after exhausting his administrative remedies before OSC.
To timely file an IRA appeal , he must file with the Board within 65 days of the issuance
of OSC’s closure letter, or, if no closure letter has been issued, at any time after the
expiration of 120 days from when he first sought corrective action from OSC . 5 U.S.C.
§ 1214 (a)(3); Hamley v. Department of the Interior , 122 M.S.P.R. 290 , ¶ 8 (2015) ;
5 C.F.R. § 1209.5 (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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
10
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.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
11
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 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
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
8 The ori ginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perma nently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circui t Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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 | PETOSKEY_TIM_SF_3443_16_0808_I_1_FINAL_ORDER_2042834.pdf | 2023-06-21 | null | SF-3443 | NP |
3,012 | https://www.mspb.gov/decisions/nonprecedential/SWANN_CHARLES_ANDREW_AT_0353_18_0589_I_1_FINAL_ORDER_2042940.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES ANDREW SWANN , III,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
AT-0353 -18-0589 -I-1
DATE: June 21, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Andrew Swann, III , Newnan, Georgia, pro se.
Erin Oliver , Esquire, College Park, 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 and the appellant has filed a cross
petition for review of the initial decision, which found that the agency arbitrarily
and capriciously denied the appellant restoration as a partially recovered
employee . Generally, 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
required to follow or distinguish t hem in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significa ntly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the fac ts 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 agency has not
established any basis under section 1201.115 for granting the petition for review,
and we therefore DENY it. We AFFIRM the initial decision, which is now the
Board ’s final decision. 5 C.F.R. § 1201. 113(b). Given the disposition of this
appeal, we find it is unnecessary to rule on the appellant ’s cross petition for
review.
BACKGROUND
¶2 The appellant was formerly employed as an Air Traffic Control Specialist
for the Federal Aviation Administration (FAA) at the Charlotte Air Traffic
Control Tower (ATCT) in Charlotte, North Carolina. Initial Appeal File (IAF),
Tab 1 at 1, Tab 14 at 22. He suffered a work -related injury on May 15, 2013, and
the Office of Workers ’ Compensation Programs (OWCP) accepted his claim for
the following conditions: (1) tinnitus in right ear, (2) sudden hearing loss in right
ear, (3) vertigo, and (4) headache. IAF, Tab 5 at 4-7.
¶3 The appellant entered leave without pay status on May 16, 2013, and he
began receiving OWCP benefits on July 18, 2013. IAF, Tab 14 at 37. As a result
of his injuries, the agency determined that t he appellant was medically
disqualified from air traffic control duties, id. at 33, and on October 31, 2015, he
was removed for failure to m aintain medical certification, id. at 22, 24 -25. In
3
May 2016, the Office of Personnel Management (OPM) approved the appellant ’s
application for disability retirement. Id. at 19 -20.
¶4 In a medical report dated June 21, 2017, the appellant’s neurologist
determined that the appellant had reached m aximum medical improvement . Id.
at 13-17. The report noted that the appella nt’s condition had improved due to
seeing a functional neurologist, that vestibular rehabilitation had resulted in a
severe diminishment of the appellant ’s dizziness, and that his headaches had been
minimal and treatable with over -the-counter medications. Id. That same day, the
appellant’s neurologist also filled out an OWCP Work Capacity Evaluation form,
indicating that the appellant could not work as an Air Traffic Controller due to
mild residual low -grade dizziness and migraines, but could work 8 hours per
workday in a sedentary position. IAF, Tab 25 at 5.
¶5 Immediately thereafter, on the evening of June 21, 2017, the appellant
emailed the former Air Traffic Mana ger (ATM) of the Charlotte ATCT and asked
him for help in returning to work for the agency. IAF, Tab 19 at 8. The former
Charlotte ATM responded the following day, advising the appellant that another
individual was now the acting ATM at Charlotte and providing the appellant a
link to an agency web page containing an article about workers ’ compensation.
Id. at 9. Later t hat day, the appellant emailed a return -to-work s pecialist in the
agency ’s OWCP office. Id. at 10. In his message, the appellant indicated that he
had recovered from his injury sufficiently to return to “full sedentary d uty,” and
that he had “submitted for a few job announcements on USAjobs.gov for Support
Type positions. ” Id. According to the appellant, the return -to-work specialist
told him she could only help him if he was attempting to return to work prior to
being separated or within 1 year of his injury. IAF, Tab 1 at 5.
¶6 The appellant also states that on June 27, 2017, he contacted the acting
Charlotte ATM , who returned his call on June 29, 2017. IAF, Tab 19 at 4 -5.
According to the appellant, the acting Charlo tte ATM explained to him that he did
not know how restoration to duty worked and that had he no guidance other than
4
to contact the return -to-work specialist , but he also stated that if the appellant
were able to medically qualify he could enter the agency ’s Air Traffic Controller
Reinstatement Program (ATCRP). Id. at 5. The appellant further relates that on
August 24, 2017, he contacted doctors with the Aviation Medical Advisory
Service, who advised him that he could obtain medical certification. Id. The
appellant states that on the following day he contacted the acting Charlotte ATM
again to ask about entering the ATCRP, but the acting Charlotte ATM told him
that he would be unwilling and unable to submit him for consideration. Id. The
appellant assert s that on January 12, 201 8, the Atlanta ATM assisted him in
applying to the ATCRP. Id. However, on February 1, 2018, the Atlanta ATM
informed him that the FAA had found him physically disqualified to be an Air
Traffic Controller. Id.
¶7 The appellant furt her relates that on June 15, 2018, another employee with
the agency ’s OWCP office came to his house to discuss his case. IAF, Tab 1 at 5.
According to the appellant, he told the OWCP specialist “everything that had
been going on ” and that he was trying to work with the agency. Id. The
appellant states that the OWCP specialist told him that he should have been given
priority placement status, which would have guaranteed him consideration and an
interview for the jobs for which he had applied . Id. According to the appellant,
the OWCP specialist told him he would see what he could do to help and get back
to him. Id. The appellant states that , as of the date this appeal was filed, he had
not heard back from the OWCP specialist and was not receiving consideration for
positions for which he had applied since the June 15, 2018 visit. Id.
¶8 The appellant filed this appeal on June 30, 2018. IAF, Tab 1. Before
issuing an initial decision, the administrative judge made a preliminary
determination that the appellant had established jurisdiction under 5 C.F.R.
§ 353.304 (c) by making nonfrivolous allegations that the agency had arbitrarily
and capriciously denied him restoration as a partially recovered employee. IAF,
Tab 15. The administrative judge noted that the agency had not provided
5
evidence that it conducted a search of the Charlotte loca l commuting area to
determine whether there was a vacant position to which it could have restored the
appellant, as required under 5 C.F.R. § 353.301 (d). IAF, Tab 15 at 2 n.1.
¶9 In respon se, the agency provided evidence including a September 12, 20 18
declaration by a FAA Human Reso urces Specialist, who averred that on
August 17, 2018, and again on September 12, 2018, she conducted a search for
vacancies in the Charlotte local commuting are a that were compatible with the
appellant ’s qualifications and lack of a medical clearance, but did not find any
vacant positions for which the appellant was eligible. IAF, Tab 25 at 15 -17. The
agency also provided a spreadsheet listing all FAA vacancies in the Charlotte
local commuting during the period from June 21, 2017, to September 21, 2018.
Id. at 18. The spreadsheet indicated that the appellant was not qualified for any
of the identified positions. Id.
¶10 Based on his review of the written record, the administrative judge issued
an initial decision in the appellant ’s favor. IAF, Tab 26, Initial Decision (ID).
He first found that the appellant had partially recovered from a compensable
injury and was therefore entitled to restoration rights under 5 C.F.R.
§ 353.301 (d). ID at 6 -7. The administrative judge further found that the agency
had arbitrarily and capriciously d enied him restoration. ID at 8 -11. Specifically,
he found wh ile the agency had provided uncontested evidence that it searched
within the Charlotte lo cal commuting area for vacant FAA positions to which the
appellant could be assigned, it was also required under 5 C.F.R. § 353.301 (d) to
search for suitable positions within other components of the Department of
Transportation (DOT), and it had not done so. ID at 9 -11. He further found that
the appropriate remedy was for the agency to conduct an app ropria te search
within the Charlotte local commuting area, retroactive to the date of the
appellant ’s request for re storation, and to consider him for any suitable vacancies.
ID at 11. Accordingly, he reversed the denial of the appellant ’s request for
6
restoration and rem anded the matter to the agency to conduct the required search.
Id. He declined to grant interim relief under 5 U.S.C. § 7701 (b)(2). ID at 13.
¶11 In its petition for review, the a gency argues that the initial decision should
be reversed on the following grounds: (1) the administrative judge erred in
finding that the appellant was partially recovered when the Department of Labor
(DOL) had not made such a determination; and (2) assu ming the appellant was
partially recovered, the appeal was untimely bec ause it was not filed within
30 days of the date of his partial recovery , i.e., June 21, 2017. Petition for
Review (PFR) File, Tab 1. In his cross petition for review, the appellant contends
the administrative judge erred in finding that the agency conducted an adequate
search within the FAA . PFR File, Tab 3. The appellant has filed a response to
the agency ’s petition for review, and the agency has replied to the appellant ’s
response. PFR File, Tabs 4 -5. The agency has also filed a response to the
appellant ’s cross petition for review. PFR File, Tab 7.
ANALYSIS
¶12 The Federal Employees ’ Compensation Act, 5 U.S.C. § 8151 , provides that
Federal employees who suffer compensable injuries enjoy certain rights to be
restored to their previous or comparable positions. Kingsley v. U.S. Postal
Service , 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151 (b). Congress has
granted OPM the authority to issue regulations governing the obligations of
employing agencies in this regard. 5 U.S.C. § 8151 (b). Pursuant to this
authority, OPM has issued regulat ions requiring agencies to make certain efforts
toward restoring employees with compensable injuries to duty, depending on the
timing and extent of their recovery. 5 C.F.R. § 353.301 ; see Smith v. U.S. Postal
Service , 81 M.S.P.R. 92 , ¶ 6 (1999).
¶13 The regulation at 5 C.F.R. § 353.301 (d) concerns the restoration rights
granted to “partially recovered ” employees, defined in 5 C.F.R. § 353.102 as
injured employees who, “though not ready to resume the full range ” of their
7
duties, have “recovered sufficiently to return to part -time or light duty or to
another position with less demanding physical requirements. ” Section 353.301(d)
requir es agencies to “make every effort to restore in the local commuting area,
according to the circumstances in each case, an individual who has partially
recovered from a compensable injury and who is able t o return to limited duty.
At a minimum, this would mean treating [him] substantially the same as other
disabled individuals under the Rehabilitation Act. ”2 5 C.F.R. § 353.301 (d). As
the administrative judge noted, the Board has observed that an agency ’s
reassignment obligations under the Rehabilitation Act are not limited to a
particular type of work or to positions within a particular office or branch of the
agency. Sanchez v. Department of Energy , 117 M.S.P.R. 155 , ¶ 18 (2011).
¶14 The regulation at 5 C.F.R. § 353.304 provide s Board appeal rights to
individuals affected by restoration decisions under 5 C.F.R. § 353.301 . As
relevant here, the regulation provides that a partially recovered employee “may
appeal to [the Board] for a determination of whether the agency is acting
arbitrarily and capriciously in denying restoration. ” 5 C.F.R. § 353.304 (c). In
order to prevail on the merits in suc h an appeal, the appellant must prove the
following elements by a preponderance of the evidence: (1) he was absent from
his position due to a compensable injury; (2) he recovered sufficiently to return to
duty on a part -time basis or to return to work in a position with less demanding
physical requirements than those previously required; (3) the agency denied the
request for restoration; and (4) the denial was arbitrary and capricious because of
2 The Rehabilitation Act incorporates by reference the regulatory standards for the
Americans with Disabilities Act. 29 U.S.C. § 791(f); Rosario -Fabregas v. Department
of the Army , 122 M.S.P.R. 468 , ¶ 13 n.5 (2015), aff’d , 833 F.3d 1342 (Fed. Cir. 2016) ;
29 C.F.R. § 1614.203 (b).
8
the agency ’s failure to perform its obligations under 5 C.F.R. § 353.301 (d).3 See
Kingsley , 123 M.S.P.R. 365 , ¶ 11; 5 C.F.R. § 1201.57 (a)(4), (b).
¶15 Here, it is u ndisputed that the appellant was abse nt due to a compensable
injury. With regard to the second element, the agency argues that the
administrative judge erred in finding that the appellant was partially recovered
when DOL had not issued a ruling to that effect. However, we are not aware of
any authority for the propo sition that such a ruling is a prerequisite for finding
that an employee is partially recovered under 5 C.F.R. § 353.102 . The Board has
found partial recovery based on medical documentat ion alone, e.g., Corum v. U.S.
Postal Service , 118 M.S.P.R. 288 , ¶¶ 15-18 (2012), and we agree with the
administrative judge that the report by the appellant’s neurologist is sufficient to
establish that, as of June 21, 2017, the appellant had recovered sufficiently to
work in a sedentary position. As to the remaining elements, it is undisputed that
the agency denied the appel lant’s requests for restoration and that it did not
extend its search to other components of DOT, as required under 5 C.F.R.
§ 353.301 (d).
¶16 We find no merit to the agency ’s argument that the appeal was untimely
filed. The Board ’s regulations provide that an appeal of an agency action must be
filed no later than 30 days after the effective date of the action being appealed or
30 days after receipt of the agency ’s decision, whichever is l ater. 5 C.F.R.
§ 1201.22 (b)(1). Thus, the deadline for filing an appeal under 5 C.F.R.
§ 353.304 (c) is determined no t by the date of partial recovery, but rather by the
date of the action on appeal, i.e., the alleged denial of restoration. See Hardy v.
U.S. Postal Service , 104 M.S.P.R. 387 , ¶ 15, aff’d, 250 F. App ’x 332 (2007) .
While the agency in this case did not issue a formal notice denying the appella nt
3 We agree with the administrative judge that the appellant established the Board ’s
jurisdiction under 5 C.F.R. § 353.304 (c) by making nonfrivolous allegations with
respect to all four elements. IAF, Tab 15; see Hamilton v. U.S. Postal Service ,
123 M.S.P.R. 404 , ¶ 12 (2016).
9
restoration, we find that the agency ’s delay in restoring him, despite his
continued good faith efforts to return to work, constitutes a denial of restoration
that was ongoing at the time the appeal was filed.4 See Chism v. U.S. Postal
Service , 85 M.S.P.R. 436 , ¶¶ 9-10 (2000) (finding that the agency ’s delay in
restoring the appellant was equivalent to a denial of restoration) .5
¶17 Given the disposition of this appeal, it is unnecessary to rule on the
appellant ’s cross petition for review. As the administrative judge correctly found,
the appropriate remedy is for the agency to conduct a new search, retroactive to
June 21, 2017 , consistent with its obligations under 5 C.F.R. § 353.301 (d). See
Scott v. U.S. Postal Service , 118 M.S.P.R. 375 , ¶ 14 (2012). This entails that the
agency search for suitable positions in the Charlotte local commuting area,
consistent with the requirements of the Rehabilitation Act, throughout the whole
of DOT —the FAA included. See Sanchez , 117 M.S.P.R. 155 , ¶ 18. If the
appellant believes the agency has not complied with the Board ’s orde r, he may
file a petition for enfo rcement in accordance with the instructions provided
below.
ORDER
¶18 The agency is ORDERED to conduct a proper search retroactive to June 21,
2017, and to consider the appellant for any suitable assignments available during
that time period consistent with its restorat ion obligations under 5 C.F.R.
§ 353.301 (d). See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed.
4 Even if the appeal had not been timely filed, we would consider the agency ’s failure to
provide the notice of appeal rights required under 5 C.F.R. § 353.104 in determining
whether there was good cause for the filing delay. See Cranston v. U.S. Postal Service ,
106 M.S.P.R. 290 , ¶¶ 10-14 (2007).
5 Chism was overruled in part on other grounds by Chen v. U.S. Postal Service ,
97 M.S.P.R. 527 (2004), which was overruled by Latham v. U.S. Postal Service ,
117 M.S.P.R. 400 (2012), which was overruled by Cronin v. U.S. Postal Service ,
2022 MSPB 13 . However, the proposition for which Chism is cited remains good law.
10
Cir. 1984). The agency must complete this action no later than 30 days after the
date of this decision.
¶19 In the event the agency ’s retroactive job search unco vers available work to
which it could have restored the appellant, the agency is ORDERED pay the
appellant the correct amount of back pay, interest on back pay, and other benefits
under the Office of Personnel Management’s regulations , as appropriate, no l ater
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 requ ests 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 deci sion.
¶20 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board ’s Order and of the actions it has
taken to carry out the Board ’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶21 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board ’s Order, the appellant may file a p etition 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 a gency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶22 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Bo ard decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
11
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 withi n 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 belie ve 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 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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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 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.
13
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 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
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail , the
address of the EEOC is:
14
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option app lies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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 appea ls must 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 Circ uit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any ot her circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/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) 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).
NATIONA L FINANCE CENTER CHE CKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing
what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium,
etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide 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. | SWANN_CHARLES_ANDREW_AT_0353_18_0589_I_1_FINAL_ORDER_2042940.pdf | 2023-06-21 | null | AT-0353 | NP |
3,013 | https://www.mspb.gov/decisions/nonprecedential/BRONNER_STAFFORD_A_CHRISTINA_AT_0752_16_0683_I_1_FINAL_ORDER_2042196.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
A. CHRISTINA BRONNER -
STAFFORD,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
AT-0752 -16-0683 -I-1
DATE: June 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Armand C. Stafford , Smyrna, Georgia, for the appellant.
Cleora S. Anderson , Esquire, Smyrna, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has file d a petition for review and the appellant has filed a cross
petition for review of the initial decision, which reversed the appellant’s removal
on due process grounds and found that the appellant proved her claim of
disability discrimination based on a fai lure to accommodate . On petition for
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
review, the agency disputes the administrative judge’s due process and disability
discrimination analyses . On cross petition for review, the appellant argues that
the administrative judge failed to address matters con cerning the Family and
Medical Leave Act of 1993, alleged false statements by agency employees, and a
hostile work environment. Generally, we grant petitions such as these only in the
following circumstances: the initial decision contains erroneous findi ngs 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 i nitial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
dilige nce, was not available when the record closed. Title 5 of the 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
petiti on for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113 (b).
¶2 The parties have filed numerous motions in addition to the petition for
review and cross petition for review. For instance, the appellant has filed a
motion to enforce interim relief and for sanctions, a motion to dismiss the
agency’s petition for review, a motion for leave to submit a compact diskette, a
motion for agency pe rjury and/or false statements, a motion for leave to file a
reply to the agency’s response to her cross petition for review, and other motions
of a procedural nature. E.g., Petition for Review (PFR) File, Tabs 1, 4, 12, 16,
19, 25, 29, 38, 40. The agency also has filed a motion for leave to file a reply
brief to the appellant’s response to the agency’s opposition to the motion to
dismiss the petition for review , and it filed various responses to the appellant’s
3
motions. E.g., PFR File, Tabs 9, 17, 24, 32 . We have reviewed each of the
parties’ motions. Given the extensive amount of briefing by both parties, the
voluminous record below, and our finding that the initial decision was correctly
decided, we deny the parties’ various requests to submit additio nal pleadings or
evidence on review. We also deny the appellant’s motion for agency perjury or
false statements. However, we will briefly discuss two of the appellant’s
motions.
¶3 The Board will not entertain a motion to enforce an interim relief order; it
will treat such a motion as a motion to dismiss the petition for review. Parbs v.
U.S. Postal Service , 107 M.S.P.R. 559 , ¶ 5 (200 7), aff’d , 301 F. App’x 923 (Fed.
Cir. 2008); Batten v. U.S. Postal Service , 101 M.S.P.R. 222 , ¶ 6, aff’d ,
208 F. App’x 868 (Fed. Cir. 2006). Because the appellant already has filed a
motion to dismiss the agency’s petition for review, we will consider the
arguments in her motion to enforce as part of her motion to dismiss.
¶4 As part of the interim relief order in the initial de cision, the administrative
judge ordered the agency to effect the appellant’s appointment to the Contract
Termination Specialist position and to provide her with pay and benefits of the
position, even if the agency determines that her return to or presence in the
workplace would be unduly disruptive. Initial Appeal File, Tab 56, Initial
Decision at 20. The agency indicates in its petition for review that it reappointed
the appellant to her position, effective May 1, 2017, the date the initial decision
was issued, and it provided her with a step increase. PFR File, Tab 2 at 30, Tab 9
at 40 -41, 48 -51. The record also reflects that the agency placed her on paid leave
after it made a determination that her return to duty would constitute an undue
disruption. PFR File, Tab 9 at 25 26, 54 -55.
¶5 In pertinent part, the appellant challenges the agency’s undue disruption
determination, particularly because she would have been working from home
5 days per week due to her medical conditions. PFR File, Tab 1 at 5 -6, 9, Tab 15
at 14 15. This argument is unavailing. Pursuant to 5 U.S.C.
4
§ 7701 (b)(2)(A)(ii)(II), the appellant shall be granted the relief provided in the
initial decision unless the agency “deter mines that the return or presence of such
employee . . . is unduly disruptive to the work environment.” Our reviewing
court has addressed the scope of the Board’s review of an agency’s undue
disruption determination. Noting that the Board does not have p lenary
jurisdiction, the court has held that “Congress intended the agency to determine
the effect of returning an employee to the workplace and gave it discretion when
it determined that returning [her] would cause undue disruption” and it “did not
provid e for any review of this decision.” King v. Jerome , 42 F.3d 1371 , 1374
(Fed. Cir. 1994). The court thus held that the scope of the Board’s revi ew of an
undue disruption determination “is limited to determining whether the agency
actually made an undue disruption determination and whether the employee has
received appropriate pay and benefits.” Id. at 1375. The Board has followed the
court’s direction in this regard. E.g., Christopher v. Department of the Army ,
107 M.S.P.R. 580 , ¶ 6, aff’d , 299 F. App’x 964 (Fed. Cir. 2008); Cook v.
Department of the Army , 105 M.S.P.R. 178 , ¶¶ 7 -8 (2007).
¶6 The recor d reflects that the agency made an undue disruption determination.
PFR File, Tab 9 at 25, 54 -55. Moreover, the appellant concedes that, by June 26,
2017, she was provided with pay and benefits, effective May 1, 2017, and the
record supports that the agen cy complied with the interim relief order in this
regard. PFR File, Tab 9 at 49 -51, Tab 15 at 20. Thus, we find that the agency
has complied with the interim relief order. We have considered the remaining
issues raised by the appellant in her motion to dismiss, but we conclude that none
violate the administrative judge’s interim relief order or otherwise warrant
dismissal of the agency’s petition for review. Accordingly, we deny this motion.
ORDER
¶7 We ORDER the agency to cancel the appellant’s removal a nd to restore the
appellant effective July 22, 2016. See Kerr v. National Endowment for the Arts ,
5
726 F.2d 730 (Fed. Cir. 1984). The agency mus t complete this action no later
than 20 days after the date of this decision.
¶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 req uests 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 dec ision.
¶9 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 agenc y 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 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 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 B oard 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
6
Board’s decision in accordance with the attached lists so that payment can be
made with in 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.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the ag ency 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 s et 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 y ou 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.
7
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 y our situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information 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 that is appealable to the Board and that such action
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
9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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
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
compete nt 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 judic ial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pract ice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono rep resentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.
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/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 i s 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 documen tation 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 Seve rance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if a pplicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of 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. | BRONNER_STAFFORD_A_CHRISTINA_AT_0752_16_0683_I_1_FINAL_ORDER_2042196.pdf | 2023-06-20 | null | AT-0752 | NP |
3,014 | https://www.mspb.gov/decisions/nonprecedential/BARNETT_ANTHONY_P_DA_0752_17_0277_I_1_FINAL_ORDER_2042233.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY P. BARNETT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-0752 -17-0277 -I-1
DATE: June 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Megan Zeller , Esquire, and Stephanie Bernstein , Esquire, Dallas, Texas,
for the appellant.
Kristina Letcher , JBSA Fort Sam Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
FINA L ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
or regulation or the erroneous a pplication of the law to the facts of the case; the
administrative judge ’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision . 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The agency employed the appellant as a Materials Handler. Initial Appeal
File (IAF), Tab 8 at 26. The work of a Materials Handler involves “heavy
lifting ,” and the agency requires a preemployment physical to establish that an
individual can satisfy this condition of employment. Id. at 44-49. Specifically,
the appellant was responsible for loading and unloading food and nonfood items
from trucks, using hand carts and mechanized conveyances, and stocking and
straightening items in the warehouse. Id. at 45 -46.
¶3 In September 2016, the app ellant provided the agency with medical
documentation from his primary care physician, which showed that his ability to
perform his duties was su bject to medical restrictions. IAF, Tab 8 at 50. To
assess the appellant ’s ability to perform his dutie s, the agency sent him to consult
with its Occupational Health Physician, who reviewed the medical documentation
provided by the appellant and concluded that the appellant could not perform the
regular duties of a Materials Handler. Id. at 51. Based on the phy sician ’s
documentation, the agency proposed to remove the appellant because his
documented medical conditions were incompatible with either useful service or
3
retention in the Materials Handler position. Id. at 39 -40. In his response to the
agency ’s proposed removal, the appellant acknowledged that he “cannot continue
in his current position ” based upon his medical limitations. IAF, Tab 1. The
agency offered the appellant reassignment to a position c ompatible with his
restrictions —a Medical Record s Technician position , IAF, Tab 10 at 133 -34;
however, he declined the reassignment, and the deciding o fficial sustained the
removal , IAF, Tab 1 at 58, 67.
¶4 The appellant appealed the agency ’s action, alleging that he can perform the
duties of his position and that the removal action constituted rac e and disability
discrimination and retaliation for whistleblowing. IAF, Tabs 1, 32. Although the
appellant initially requested a hearing, IAF, Tab 1, he subsequently req uested a
decision on the written record , IAF, Tab 36. The administrative judge issued an
initial decision finding that the agency established that the appellant was unable
to perform the duties of his Materials Handler position . IAF, Tab 44 , Initial
Decision ( ID) at 4 -6. H e found that affidav its from coworkers who observed the
appellant performing the Materials Handler job duties do not provide a basis to
reverse the agency ’s action because an agency is not required to allow an
employee to work outside his medical restrictions, even if it has done so in the
past. Id. The administrative judge also found that the appellant failed to prove
that the agency ’s action was based upon his race, his alleged disability, and
retaliation for whistleblowing disclosures or activities . ID at 6-12. He therefore
sustained the appellant ’s removal.
¶5 In his petition for review, the appellant contends that the attorneys that he
hired to represent him failed to timely submit recordings between him and agency
officials and that they urged him to request a decision based on the written
record. Petition for Review (PFR) File, Tab 1 at 2 -3.2 The appellant also asserts
2 The appellant does not disagree with the administrative judge’s findings regarding the
agency’s charge and the appellant’s claim of retaliation for whistleblowing . Because
we find no error in these findings, we nee d not address them.
4
that, prior to hiring counsel, he submitted a n umber of documents to the
administrative judge. PFR File, Tab 1 at 2. The agency has not responded to the
petition.
ANALYSIS
¶6 Generally, the appellant is responsible for the errors of his chosen
representative . Sofio v. Internal Revenue Service , 7 M .S.P.R. 667 , 670 (1981).
Although the Board will not apply this principle when an appellant proves that his
diligent efforts to prosecute his app eal were , without his knowledge, thwarted by
his representative ’s negligence or ma lfeasance , this limited exception does not
apply under the circumstances here . See Crawford v. Department of State ,
60 M.S.P.R. 441 , 445 -46 (1994). Specifically, the record does not reflect that the
appellant diligently prosecuted his appeal or that his representatives demonstrated
the negligence or malfeas ance required under Crawford . Nor is t he appellant
asserting that his attorney lacked the authority to r equest a decision on the wr itten
record .
¶7 Additionally, the appellant ’s claim of inadequate representation because his
attorney s did not timely submit recordings that the appellant made of discussions
that he had with agency managers does not constitute a basis for reversal of the
initial decision. The appellant attempted to submit a copy of the recordings after
the admi nistrative judge rejected them as untimely filed . IAF, Tab 41. The
administrative judge afforded the appellant the opportunity to explain the
relevance of the recordings. Id. Based on the explanation provi ded by the
appellant, the administrative judge found that most, if not all , of these
conversations are irrelevant and would likely be excluded from evidence on that
basis. Id.
¶8 As previously noted, the appellant asserts that, prior to hiring counsel, he
submitted a number of document s to the administrative judge. To the extent that
the appellant is asserting that the submissions that he made before hiring counsel
5
were not considered by the administrative judge, his assertion is unavailing. The
administrative judge ’s failure to mention all of the evidence of record does not
mean that he did not consi der it in reaching his decision. Marques v. Department
of Health and Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d, 776 F.2d
1062 (F ed. Cir. 1985) (Table) . In sum, we find that the appellant failed to
establish that he should not be held accountable for any errors that his
representative may have committed. See Sofio , 7 M.S.P.R. at 670.
¶9 Finally, the appellant claimed below that his removal constituted race
discrimination and disparate treatment disability discrimination. The
administrative judge found that the appellant failed to show that his race was a
motivating factor in the agency’s decision to remove him , and the appellant do es
not challenge that finding on review. ID at 7-9. We thus need not reach the
question as to whether race discrimination was a “but-for” cause of the removal.
Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 22, 40, 42.
¶10 The same standards of proof set forth above regarding the appellant’s race
discrimination claim apply to his disparate treatment disability discrim ination
claim. Pridgen , 2022 MSPB 31 , ¶¶ 40, 42. However, only an otherwise qualified
individual with a disability is entitle d to relief for a claim of status -based
disability discrimination. Haas v. Department of Homeland Security , 2022 MSPB
36, ¶ 29. The administrative judge here found th at the appellant failed to prov e
that he was a qualified individual with a disability , and the appellant does not
challenge this finding on review. ID at 10-12. We agree with the administrative
judge’s analysis and concl usion that the appellant fail ed to meet this threshold
requirement of show ing that he is a qualified individual with a disability and find
that the appellant failed to prove his status -based disability discrimination claim .
¶11 We therefore affirm the initial decision.
6
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rig hts, 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
jurisdi ction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dis missal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the fo llowing
address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representati ve receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, nati onal origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
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 f or U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
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
review within 60 days of the date of issuance of this decision. 5 U.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 before the 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.
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 | BARNETT_ANTHONY_P_DA_0752_17_0277_I_1_FINAL_ORDER_2042233.pdf | 2023-06-20 | null | DA-0752 | NP |
3,015 | https://www.mspb.gov/decisions/nonprecedential/DUFFEY_EVA_L_DA_0752_16_0105_I_1_FINAL_ORDER_2042359.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EVA L. DUFFEY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -16-0105 -I-1
DATE: June 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
John M. Vallie , Fort Worth, Texas, for the appellant.
Susan L. LaSalle , 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 f or review of the initial decision, which
affirmed her demotion. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an err oneous 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
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 regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of th e Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the appellant 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 failed to establish that the agency
violat ed her due process rights by identifying only some of her alleged
misconduct in the proposal notice, we AFFIRM the initial decision .
¶2 The appellant was demoted from her position as a Customer Services
Manager for changing four subordinates’ clock rings and causing them to not be
paid for time that they spent working. Initial Appeal File (IAF), Tab 4 at 48 -50,
54-58. In its proposal notice, the agency asserted that , between September 29,
2014, and April 17, 2015, the appellant reduced those four employees’ work
hours “by 103 hours in total.” Id. at 54, 56. The proposal notice listed “some ” of
the specific incidents in which the appellant disallowed time, which add ed up to
approximately 33 hours over 45 instances. Id. at 54-56.
¶3 The appellant argues that , although she was “theoretically charged ” with
103 hours of improper clock ring deletions, the proposal notice only ide ntified
approximately 33 hours of such deletions. Petition for Review ( PFR ) File, Tab 1
at 5, 8.2 Although the appellant raised this issu e below, IAF, Tab 1 at 6, Tab 9
2 The appellant’s submissions were not paginated. Thus, for ease of reference, page
number citations to the record reference the electronic record and the MSPB e -Appeal
pagination system.
3
at 8, it is not addressed in the initial decision , IAF, Tab 23, Initial Decision (ID).
We interpret the appellant’s argument as one that the agency violated her due
process rights. The appellant has the burden of proving her affirmative defense
by preponderant evidence.3 5 C.F.R. § 1201.56 (b)(2)(i)( C).
¶4 Due process mandates that notice of charges be sufficiently detailed to
provide a meaningful reply.4 Ryan v. Department of Homeland Security ,
123 M.S.P.R. 202 , ¶ 8 (2016). The proposal notice here identified the four
employees whose clock rings the appella nt allegedly had altered, the manner in
which she altered them, the time period in which she altered them, the total
number of hours she discounted, and 45 examples of her alterations. IAF, Tab 4
at 54-56. Moreover, approximately 3 weeks prior to the issuance of the proposal
notice, the proposing official interviewed the appellant and made her aware that
the agency knew of a pproximately 54 instances in which she had improperly
altered the clock rings of one named employee, 80 instances of a second
employee, 58 instances of a third employee, and 70 instances of a fourth
employee. Id. at 61 -63. Under these circumstances, we f ind that the agency
provided the appellant with sufficiently detailed notice of the charges against her
such that she could provide a meaningful reply. See, e.g. , Gilmore v. U.S. Postal
Service , 103 M.S.P.R. 290 , ¶¶ 6, 10 -14 (2006) (finding that, when the proposal
notice provided fairly specific information regarding the nature of the appellant’s
alleged unsatisfactory performance and the time period in which her performance
3 Preponde rant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
4 The Board's reasoning rests on the decision of the U.S. Supreme Court in Cleveland
Board of Education v. Loudermill , 470 U.S. 532 , 538-39, 546 -48 (1985), which held
that a tenured public employee has a constitutionally protected property interest in
ongoing public employment and that an agency may not deprive such an employee of
his property interest without providing him with due pr ocess of law, including the right
to advance notice of the charges against him, an explanation of the agency’s evidence,
and an opportunity to respond.
4
was allegedly unsatisfactory, the notice was adequate under 5 U.S.C. § 7513 ,
despite its failure to identify the number of occasions on which the appellant’s
performance was allegedly deficient) ,5 aff’d , 262 F. App’x 276 (Fed. Cir. 2008) ;
O’Hearn v. General Services Administration , 41 M.S.P.R. 280 , 284 -85 (1989)
(finding that the appellant was not denied due process when the proposal notice
only cited some examples of his alleged deficiencies under a particular
performance element, the agency kept him apprised during his performance
improvement period as to his alleged deficiencies, and the record did not indicate
that he was confused and un able to respond to the charge ), aff’d , 902 F.2d 44
(Fed. Cir. 1990) (Table) .
¶5 Additionally, the proposal notice informed the appellant of her right to
review the material relied upon to support the reasons for the proposal notice.
IAF, Tab 4 at 57. There is no requirement that a proposal notice be a
self-contained document, and the notice requirement can be satisfied when
attachments to the proposal, together with the proposal itself , provide the
employee with specific notice of the charges against her so that she can make an
informed and meaningful reply. Alvarado v. Department of the Air Force ,
97 M.S.P.R. 389 , ¶ 15 (2004). In its submissions to the Board on appeal below ,
the agency provided time and attendance reports , which appear to show each
instance of the appellant’s unacceptable cond uct. IAF, Tab 4 at 76 -338, Tab 5
at 4-49. The appellant has not indicated wh ether she requested the materials
relied upon to support the reasons for the proposal notice, and , if she did , whether
the agency then failed to identify each instance of her misconduct leading to the
improper reduction of 103 work hours performed by her s ubordinates. Nor has
she claimed that she was not responsible for any particular clock ring alterations
5 The procedural protections under 5 U.S.C. § 75 13 include, inter alia , the due process
rights independently guaranteed under the U.S. Constitution. Buelna v. Department of
Homeland Security , 121 M.S.P.R. 262 , ¶ 15 n.6 (2014).
5
shown in the agency’s evidence . Accordingly, we find that the appellant has
failed to establish that the agency violated her due process right to pre decisional
notice of the charge s against her.
¶6 The appellant also argues that the deciding official violated her due process
rights by considering an aggravating factor that was not discussed in the proposal
notice, and that the administrative judge erroneo usly concluded that the appellant
was not similarly situated to certain other employees. PFR File, Tab 1 at 3 -25.
Regarding the appellant’s other due process argument, the administrative judge
found that the evidence indicated that the appellant was awar e of, and had the
opportunity to respond to, the aggravating factor in question. ID at 13. For this
and other reasons, the administrative judge found that the agency had not violated
the appellant’s due process rights. ID at 13 -14. Additionally, based on, among
other things, this same aggravating factor, the administrative judge distinguished
the appellant’s case from that of her purported comparators. ID at 18 -19. We see
no reason to disturb these findings.6
¶7 We also have considered whether the appe llant has established that the
agency committed harmful error. See Ward v. U.S. Postal Service , 634 F.3d
1274 , 1281 (Fed. Cir. 2011). Harmful error is defined as “[e]rror b y the agency
in the application of its procedures that is likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error.” 5 C.F.R. § 1201.4 (r). For the reasons stated above, we find
that the proposal n otice adequately stated the specific reasons for the proposed
6 In analyzing the appellant’s disparate penalty claim, the administrative judge cited
Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010). ID at 21-22. We
have since overruled Lewis to find that, when analyzing disparate penalty claims, broad
similarity between employees is insufficient to establish that they are appropriate
comparators, and hold that the relevant inquiry is whether the agency knowingly and
unjustifiably treated empl oyees differently. Singh v. U.S. Postal Service , 2022 MSPB
15, ¶ 14. The reference to the standard set forth in Lewis was not pre judicial in this
case because, as the administrative judge found, the appellant failed to satisfy even that
less onerous standard. ID at 21 -22.
6
action in accordance with 5 C.F.R. § 752.404 (b)(1), and we find that the deciding
official, in arriving at her decision, acted in accordance with
subsection 752.404(g)(1) by considering only the reasons specified in the
proposal notice along with the appellant’s reply . Accordingly, we fin d that the
appellant has not shown that the agency committed a procedural error. Moreover ,
even assuming that the proposal notice inadequately stated the specific reasons
for the proposed action by failing to specify each and every instance of allegedly
improperly disallowed time, we find no evidence that the deciding official was
likely to have reached a different conclusion absent such error , and we would thus
still find that the agency did not commit harmful error.
¶8 The appellant also submits on review her equal employment opportunity
complaint and the agency’s summary of its investigative interview of her. PFR
File, Tab 1 at 28-34, 36 -38. These documents were already a part of the record
below. IAF, Tab 4 at 61 -64, Tab 13 at 91 -99. Accordingly, they are not new
evidence and do not provide a basis for review. See Meier v. Department of the
Interior , 3 M.S.P.R. 247, 256 (1980); 5 C.F.R. § 1201.115 .
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 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
7 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.
7
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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that 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
9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review 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.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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.
10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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.
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_Loc ator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DUFFEY_EVA_L_DA_0752_16_0105_I_1_FINAL_ORDER_2042359.pdf | 2023-06-20 | null | DA-0752 | NP |
3,016 | https://www.mspb.gov/decisions/nonprecedential/BRONNER_STAFFORD_A_CHRISTINA_AT_0752_16_0611_I_1_FINAL_ORDER_2042380.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
A. CHRISTINA BRONNER -
STAFFORD,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
AT-0752 -16-0611 -I-1
DATE: June 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Armand C. Stafford , Smyrna, Georgia, for the appellant.
Cleora S. Anderson , Esquire, Smyrna, 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 and the appellant has filed a cross
petition for review of the initial decision, which reversed the appellant’s
constructive suspension . On petition for review, the agency argues that it was
permitted to require additional information from the appellant before returning
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
her to duty . On cross petiti on for review, the appellant argues that the
administrative judge failed to address matters concerning the Family and Medical
Leave Act of 1993, alleged false statements by agency employees, and a hostile
work environment. Generally, we grant petitions su ch as th ese 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
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 parties have not
established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition f or review and the cross
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 The parties have filed numerous motions in addition to the petition for
review and cross petition for review. For instance, the appellant has filed a
motion to enforce interim relief and for sanctions,2 a motion to dismiss the
agency’s petition for review, a motion for leave to submit an audio com pact
diskette (CD), a motion for agency perjury or false statements, and various
motions for leave to file additional motions or evidence. E.g., Petition for
Review (PFR) File, Tabs 1, 4, 12, 16, 19, 25, 29, 38, 40. The agency also has
2 There is a question regarding the timeliness of this motion, which we have not
reached, based on our decision to deny the appellant’s motion to dismiss the agency’s
petition for review.
3
filed a motion for leave to file a reply brief and various responses to the
appellant’s motions. E.g., PFR File, Tabs 9, 17, 24, 32.
¶3 We have reviewed each of the parties’ motions. However, we are not
persuaded that additional pleadings or evidence would assist us in res olving the
issue of whether the appellant was constructively suspended.3 We therefore deny
the parties’ motions in this regard . We also deny the appellant’ s motion for
agency perjury or false statements.
¶4 However, we will briefly discuss two of the appe llant’s motions. The Board
will not entertain a motion to enforce an interim relief order; it will treat such a
motion as a motion to dismiss the petition for review. Parbs v. U.S. Postal
Service , 107 M.S.P.R. 559 , ¶ 5 (2007), aff’d , 301 F. App’x 923 (Fed. Cir. 2008);
Batten v. U.S. Postal Service , 101 M.S.P.R. 222 , ¶ 6, aff’d , 208 F. App’x 868
(Fed. Cir. 2006). Because the appellant has already filed a motion to dismiss the
agency’s petition for review, PFR File, Tab 4, we will consider the arguments i n
her motion to enforce as part of her motion to dismiss.
¶5 In the initial decision, the administrative judge ordered the agency to cancel
the suspension, to retroactively restore the appellant, effective May 30, 2016, and
to provide interim relief as requir ed by 5 U.S.C. § 7701 (b)(2)(A). Initial Appeal
File, Tab 54, Initial Decision at 16 -18. In its petition for review, the agency
indicates that no interim relief was required by the agency in the c onstructive
suspension appeal. PFR File, Tab 2 at 25. Because the suspension has
concluded, and the appellant has not persuaded us that the agency failed to
3 For example, the appellant asserts that the audio CD that s he seeks to submit is a
“record of communications which contradicts many ” of the agency attorney’s
statements in the agency’s o pposition to the appellant’s motion to dismiss the petition
for review. PF R File, Tab 12 at 4. However, t he appellant offers no contextual
information, such as how the audio CD recording was made, the individuals on the
recording, the dates or times of the communications that were recorded, and/ or how the
communications contradict the attorney’s statements. By failing to provide such
contextual information, we cannot conclude that such evidence is relevant to the issues
raised in this matter. Therefore, we deny her request to submit the audio CD .
4
provide any interim relief in this matter, we decline to exercise our discretion to
dismiss the a gency’s petition for review for any of the reasons described in the
appellant’s motion. 5 C.F.R. § 1201.116 (e).
ORDER
¶6 We ORDER the agency to cancel the appellant’s enforced leave suspension
and to restore the appellant effective May 30, 2016. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶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 regul ations, 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.
¶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 as k
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 did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believe s 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).
5
¶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 resulti ng 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 b e
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 requi rements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO 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 emot ional 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
6
THE DATE OF THIS DECISI ON. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 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.
7
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the 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, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through t he link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discri mination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calend ar days after your representative 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 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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of 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
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 c ertain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 151 0.
10
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
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 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. | BRONNER_STAFFORD_A_CHRISTINA_AT_0752_16_0611_I_1_FINAL_ORDER_2042380.pdf | 2023-06-20 | null | AT-0752 | NP |
3,017 | https://www.mspb.gov/decisions/nonprecedential/LOVE_CHERYL_CH_0752_17_0218_I_1_FINAL_ORDER_2042396.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHERYL LOVE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -17-0218 -I-1
DATE: June 20, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hartley David Alley , Esquire, San Antonio, Texas, for the appellant.
Brian J. Odom , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The agency has filed a petitio n for review of the initial decision, which
mitigated the appellant’s removal to a 90 -day suspension. For the reasons
discussed below, we GRANT the agency’s petition for review . We AFFIRM the
administrative judge’s findings on the charge, nexus, and the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
affirmative defenses. We REVERSE the administrative judge ’s findings
concerning the maximum reasonable penalty and FIND that a demotion to a
nonsupervisory position is the maximum reasonable penalty.
BACKGROUND
¶2 The appellant was formerly emplo yed as Postmaster of Des Moines, Iowa,
until she was removed, effective February 4, 2017. Initial Appeal File (IAF),
Tab 6 at 15. By letter dated December 5, 2016 , the agency proposed the
appellant’s removal based on a charge of unacceptable conduct. Id. at 23 -28.
The charge was su pported by three specifications : (1) failure to properly carry
out the emergency place ment of a subordinate employee o n off -duty status;
(2) failure to safeguard log on credentials; and (3) failure to investigate no -fee
money orders at the South Des Moines station. Id. By letter dated January 20,
2017, the agency sustained all three specifications and the charge, and removed
the appellant. Id. at 15 -16.
¶3 The appellant filed a Board appeal, disputing the charges. IAF, Tab 1.
Afte r she withdrew her request for a hearing, IAF, Tab 68, the administrative
judge issued an initial decis ion based on the written record, IAF, Tab 83, Initial
Decision (ID). The administrative judge found that the agency proved
specifications 2 and 3 of its charge, and thus, s ustained the charge. ID at 18 -20.
However, th e administrative judge found that the agency failed to prove
specification 1. ID at 14-18. The administrative judge also found that the
appellant failed to prove her affirmative def enses of harmful procedural error or
due process violations. ID at 20 -23. After considering the factors set forth in
Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981), the
administrative judge found that the penalty of removal was un reasonable and
mitigated it to a 90 -day suspension. ID at 24 -29.
3
¶4 The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 4. The appellant has opposed the agency’s petition, and the agency has filed
a reply. PFR File, Tabs 16, 19.
DISCUSSION OF ARGUME NTS ON REVIEW
The Board denies the appellant’s motion to dismiss the agency’ s petition for
review for failure to compl y with the administrative judge’ s interim relief order.
¶5 As part of the interim relief order in the initial decision, the administrative
judge ordered the agency to effect the appellant’s appointment to the Postmaster
position and to provide her with pay and benefits of the position, even if the
agency determined that her return to or presence in the workpl ace would be
unduly disruptive. ID at 31. The appellant has moved to dismiss the agency’s
petition for review on the ground that the agency failed to pro vide such interim
relief. PFR File, Tab 6.
¶6 The record reflects that the agency reinstated the appellant to her
Postmaster position, effective March 13, 2018 , but detailed her to a position as a
Local Oper ation Center (LOC) Coordinator after it determined that returning her
as Postmaster would cause an undue disruption.2 PFR File, Tab 10 at 7, 13 , 39.
According to the agency, within hours of issuance of the initial decision ,
managers began receiving phone calls from subordinate employees expressing
their anger and fear that the appellant was returning to the agency. Id. at 39.
¶7 The appellant challenges the merit s of the agency’s undue disruption
determination . PFR File, Tab 11 at 6. However, our reviewing court has held
that the sc ope of the Board’s review of an undue disruption determination “is
2 The agency mistakenly reinstated the appellant effective March 13, 2018 , the deadline
for filing a petition for review of the initial decision , instead of February 6, 2018, the
date of the initial decision. PFR File, Tab 9 at 4, 7; see 5 C.F.R. § 772.102 (a) (stating
that interim personnel actions shall be made effective upon the date of issuance of the
initial decision). Nonethel ess, the reco rd reflects that the agency provided the appellant
with appropriate back pay from February 6 to March 12, 2018. PFR File, Tab 10 at 5,
30-35, 40.
4
limited to determining whether the agency actually made an undue disruption
determination and whether the employee has received appropriate pay and
benefits.” King v. Jerome , 42 F.3d 1371 , 1375 (Fed. Cir. 1994) . The Board has
followed the cou rt’s direction in this regard. E.g., Christopher v. Department of
the Army , 107 M.S.P.R. 580, ¶ 6 (2008) ; Cook v. Department of the Army ,
105 M.S.P.R. 178, ¶¶ 7-8 (2007) . Because the record reflects that the agency
made an undue disruption determination and has provided the appe llant with pay
and benefits as of February 6, 2018, we find that the agency has complied with
the interim relief order. Accordingly, we deny the appellant’s motion to dismiss
the agency’s petition for review.
The administrative judge properly found that the agency failed to prove
specification 1 of its cha rge.
¶8 In its first specification in support of its unacceptable conduct charge, the
agency alleged that the appellant failed to timely and properly place a subordinate
and personal friend in a n off-duty status pending an investigation into the
subordinate ’s alleged misconduct. IAF, Tab 6 at 23. In particular, the agency
alleged that , based on the appellant ’s representation that the subordinate
employee did not work on the weekends, it agreed to date the off -duty letter for
the following Monday. Id. Despite the appellant’s representation, t he
subordinate reported to work the following Saturday and gave a stand -up talk to
her employees denying her involvement in the agency’s investigation related to
overtime pay. Id. When the subordinate reported to wor k on Monday , she also
spoke with her employees twice before being escorted off of the premises, once
before the appellant presented her with the off -duty letter and once after. Id.
According to the agency, the appellant violated procedures by failing to place the
employee in an off-duty status on Saturday, permitting the subordinate to twice
speak with he r employees on Monday , and allowing her to enter the
administrative offices on more than two occasions after she was placed in an
off-duty status . IAF, Tab 78 at 11 -13. The agency also maintained that the
5
appellant put her friendship with the subordinate ahead of her responsibilities as
Postmaster. Id. at 12.
¶9 The administrative judge found that the agency failed to identify any
specific policies, rules, or regulations that the appellant violated , including any
written policy that set forth explicit instructions regarding the timing or
procedures for placing an employee in an off-duty status . ID at 15 -18. She
further found that the agency did not present any evidence that the subordinate
employee or the appellant were scheduled to work that Saturday or that the
subordinate employee’s off -duty letter prohibited her from speaking with
employees before leaving the premises on Monday or from subsequently entering
a Postal Service facility. ID at 15 -16.
¶10 On review, the agency reiterates its view that the appellant’s actions were
generally improper because of her friendship w ith the subordinate and cites to
various Employee and Labor Relations Manual (ELM) policies contained in the
appellant’s notice of proposed removal . PFR File, Tab 4 at 16 -20. However, as
the administrative judge properly found, such policies do not estab lish that the
appellant’s actions were improper . Rather they relate to addressing performance
issues, reasons why an employee may be placed on off -duty status, off -duty
behavior, and general requirements that Federal employees be loyal and maintain
ethica l conduct. Id. at 16 -27.
The administrative judge erred in mitigating the penalty to a 90 -day suspension
instead of a demotion .
¶11 When the Board sustains all of the agency ’s charges , it may mitigate the
agency’ s penalty to the maximum reasonable p enalty if it finds the agency’s
original penalty to be too severe. Lachance v. Devall , 178 F.3d 1246 , 1260 (Fed.
Cir. 1999). When all of the agency’ s charges are sustained, but some of the
underlying specification s are not sustained, the agency’ s penalty determination is
entitled to deference and should be reviewed only to determine whether it is
within the parameters of reasonableness. Parker v. U.S. Postal Service ,
6
111 M.S.P.R. 510 , ¶ 8 , aff’d , 355 F. App’x 410 (Fed. Cir. 2009) . In applying this
standard, the Board must take into consideration the failure of the agency to
sustain all o f its supporting specifications, and such failure may require, or
contribut e to, a finding that the agency’ s penalty is not reasonable. Id. In such a
case, the Board will look for evidence showing that the agency would have
imposed the same penalty for the sustained specification. Id.
¶12 Neve rtheless, the Board’ s functio n is not to displace management’ s
responsibility or to decide what penalty it would impose , but to assure that
management’ s judgment has been properly exercised and that the penalty selected
does not exceed the maximum limits of reasonableness . Id., ¶ 9. 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 clearly exce eded the bounds of
reasonableness. Id. If the agency’ s penalty is beyond the bounds of
reasonableness, the Board will mitigate only as necessary to bring it within the
parameters of reasonableness. Id.
¶13 Although the administrative judge sustained the age ncy’ s unacceptable
conduct charge, she found that mitigation was warranted because the agency did
not prove specification 1, the deciding official did not properly weigh the nature
and seriousness of the appellant’s misconduct, and the penalty of removal
exceeded the tolerable li mits of reasonableness. ID at 24 -29. After determining
that removal was unreasonable, the administrative judge considered whether a
demotion was appropriate, but she found that the record did not reflect that there
were any vacant positions to which the appellant could be demoted and she
“lack [ed] confidence that counsel for either party could effectively and efficiently
navigate (without significant additional cost and resources) such a transition. ” ID
at 29. Thus, she mitigated the appellant’s removal to a 90 -day suspension. Id.
On review, the agency argues that the administrative judge erred in mitigating the
removal penalty to a 90 -day suspension and, in doing so, she considered
inappropriate factors . PFR File, Tab 4 at 24-27. We agree.
7
¶14 The administrative judge found that the agency did not properly weigh the
nature and seriousness of the offense. Significantly, she cited testimony of the
proposing and deciding officials that called into question whether they had
sufficient knowledge to accurately assess the appellant’s role regarding
specification 3. ID at 28. In this specification, the agency charged the appellant
with failing to follow up on automatically generated emails containing reports of
no-fee money orders at the South Des Moines station. IAF Tab 6 at 24-25. An
investigation by the agency’s Office of the Inspect or General (OIG) found that a
Lead Clerk in the South Des Moines station had committed fraud by issuing
no-fee money orders to pay her personal bil ls and later processing fraudulent
refunds for the same amount s that she had paid. IAF, Tab 11 at 6 -12. The Lead
Clerk’s fraudulent activity cost the agency approximately $160,000. IAF, Tab 6
at 24.
¶15 Regarding this specification, the administrative judge concluded that “both
the proposing and deciding officials demonstrated minimal knowledge regarding
the third specification and thus misjudged the significance of [the] [a]ppellant’s
role with respect to the loss of $160,000.” ID at 28. She found that th e appellant
was three levels above the Lead Clerk who committed the fraud and that the
South Des Moines station manager’s failure to verify the no -fee money orders
mitigated, in some respect, the appellant’s culpability. Id. She also cited to
evidence that suggested that Postal Service policy charged the station manager
with verifying that no -fee money orders were legitimate and authorized and noted
that the actual no -fee money orders were not attached to the emails receive d by
the appellant. ID at 19.
¶16 We agree with the administrative judge’s determination that the deciding
official did not properly weigh the nature and seriousness of the offense. In her
deposition, the deciding official testified that she did not have an und erstanding
of how no -fee money orders are to be processed and issued at a station at the time
that she made her decision to remove the appellant . IAF, Tab 64 at 44.
8
Similarly, the proposing official testified that she did not have an understanding
of the proper procedures for the issuance of no -fee money orders and did not
inquire as to such procedures in connection with deciding to propose the
appellant’s removal . Id. at 65, 73, 76. Having reviewed the record, we find that
there are many unanswered que stions concerning the appellant’s role in failing to
discover the fraudulent no -fee money orders. For example, the agency has not
clearly explained how , or if , the automatically generated no-fee money order
email reports raised concerns on their face and, if so, whether it was the
frequency, amounts, or categories of the no -fee money orders that should have
raised concerns. Additionally, the record reflects that these emails were sent to a
group of managers, which included the South Des Moines station man ager, the
appellant, and four other individuals. IAF, Tab 6 at 36. However, t he OIG report
only focused on the station manager ’s role in failing to take action regarding
these emails, without any reference to th e appellant or any other individuals who
also received the emails . IAF, Tab 11 at 6 -12. The agency also did not present
clear evidence concerning the procedures for verifying the accuracy or validity of
no-fee money orders, including what role if any the appellant was to have in the
process. R ather, the agency maintained that a detailed explanation of how money
orders are supposed to be handled was “irrelevant to the charges filed against the
appellant. ” IAF, Tab 79 at 7 -8.
¶17 The Board has long held that the nature and seriousness of the offense is the
most important factor in assessing whether an agency’s selected penalty is
reasonable. Boo v. Department of Homeland Security , 122 M.S.P.R. 100 , ¶ 18
(2014) . In light of the unanswered questions related to the appellant’s conduct
regarding specification 3, the agency’s failure to prove specification 1, and the
lack of any direct harm stemming from the appellant’s miscon duct in sharing her
login credentials, we agree with the administrative judge that the penalty of
removal exceeded the bounds of reasonableness . In so finding, we have also
considered the appellant’s lengthy 33 year s of service to the agency as well as her
9
positive performance . ID at 2. Nonetheless, we acknowledge the appellant’s
recent letter of warning fo r unacceptable conduct. IAF, Tab 6 at 75 -76. As a
high -level Postmaster, the appellant is held to a higher standard of conduct. Seas
v. U.S. Postal Service , 78 M.S.P.R. 569 , 576 (1998). We also find the appellant’s
explanation regarding specification 3 that she delegated f inancial matters to her
administrative assistant, ID at 8 -9, to be troubling and to show a lack of
judgment . The appellant’s attempts to deflect blame onto employees under her
supervision undermine d the agency’s trust in her to continue serving as a
high -level Postmaster. IAF, Tab 78 at 51 -54 (d eclaration of the proposing
official), 61-62 (declaration of the deciding official). Even if the appellant
appropriately assigned tasks regarding financial matters to her administrative
assistant, those matters re mained the appellant’s responsibility.
¶18 The Board has held that demotion to a nonsupervisory position is an
appropriate penalty for a supervisor who has engaged in relatively minor
misconduct that nevertheless calls into question the employee’s ability to a ct in a
supervisory role. Fischer v. Department of the Treasury , 69 M.S.P.R. 614, 619
(1996). Having considered all of the relevant factors, we conclude that a
demotion to the next highest nonsupervisory position is the maximum reasonable
penalty under the particular circumstances of this case .
¶19 We find that the administrative judge’s determinatio n that a demotion was
not feasible was improperly based on considerations more appropriately
considered during a compliance proceeding . At this stage , the agency was not
required to identify available positions to which th e appellant could be demoted.
Further, the Board has ordered demotion s of managers generally to
nonsupervisory positions , affording the agency discretion to select the appropriate
position . See, e.g., Fischer v. Department of the Treasury , 97 M.S.P.R. 546 , ¶ 2
(2004). Finally , the administrative judge’s speculation concerning the agency’s
ability to effect the demotion in an efficient and cost effective manner was
improper.
10
ORDER
¶20 We ORDER the agency to cancel the appellant’s removal and substitute in
its place a demotion to the next highest level nonsupervisory position with the
least reduction in grade a nd pay within the local commuting area for which the
appellant is qualified , effective February 4, 2017. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶21 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
Service regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶22 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 appellan t, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶23 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appella nt
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reas ons why the appella nt believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201. 182(a).
¶24 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
11
Accounting Service (DFAS), two lists of the information and documentation
necessary to process pay ments 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 attache d 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 is sued
the initial decision on your appeal.
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 such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
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.
12
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately revi ew the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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 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 representat ive in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination ba sed on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court _Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representa tive in this case,
and your representative receives this decision before you do, then you must file
14
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U .S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signat ure, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistlebl ower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
15
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U .S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
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.
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 re quest 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: Att orneys’ 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 under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave t hat exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unabl e to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversio n, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must 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. | LOVE_CHERYL_CH_0752_17_0218_I_1_FINAL_ORDER_2042396.pdf | 2023-06-20 | null | CH-0752 | NP |
3,018 | https://www.mspb.gov/decisions/nonprecedential/STRICKER_TERRY_L_DE_0841_16_0282_I_1_FINAL_ORDER_2041739.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TERRY L. STRICKER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-0841 -16-0282 -I-1
DATE: June 16, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Terry L. Stricker , Elizabeth, Colorado, 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 revi ew of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM), denying his request to submit a deposit for past service and increase his
Federal Employees Retirement System (FERS) annuity . Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 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 appellant has not established any basis under section 1201.115 for granting
the petition for review. T herefore, 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 following facts, as further detailed i n the initial decision, are not
disputed. The appellant has several periods of prior Federal civilian service.
Initial Appeal File (IAF), Tab 13, Initial Decision (ID) at 2. The first period fell
between March 1979 and January 1981, for the Department o f Veterans Affairs.
Id. This service was covered by the Civil Service Retirement System , but the
appellant took a refund of his contributions at separation. Id.; IAF, Tab 6
at 15-16, 24. The next period of service fell between June 1984 and May 1988,
for the Department of the Army. ID at 2. This service was covered by FERS , but
the appellant again took a refund of his contributions at separation. Id. The
appellant’s final period of service fell between September 1992 and January 2002,
with the Depar tment of Veterans Affairs and covered by FERS, after which OPM
granted his application for a disability retirement annuity. Id.
¶3 The appellant filed an application with OPM, seeking to submit a deposit to
cover his service between 1979 -81 and 1984 -88 to increase his annuity benefit
when he reached age 62. IAF, Tab 6 at 16. OPM ultimately issued an initial
3
decision in July 2014, denying the request. Id. at 15. The appellant requested
reconsideration. Id. at 11 -14. In April 2016, OPM issued a reconside ration
decision affirming its initial decision. Id. at 6 -10.
¶4 The appellant filed the instant appeal, challenging OPM’s reconsideration
decision. IAF, Tab 1. While the appeal was pending below, OPM partially
reversed course, allowing the appellant to sub mit a deposit to cover his 1979 -81
service. IAF, Tab 7 at 1. The administrative judge issued a decision on the
written record to address the remaining period at issue, between 1984 and 1988,
affirming OPM’s reconsideration decision. ID at 3 -6. The appe llant has filed a
petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed
a response. PFR File, Tab 4.
¶5 As the administrative judge correctly noted, the appellant bears the burden
of proving that he is entitled to the retirement benefits he seeks. 5 C.F.R.
§ 1201.56 (b)(2)(ii); see Cheeseman v. Office of Personnel Management , 791 F.2d
138, 140 -41 (Fed. Cir. 1986). We agree with the administrative judge’s
conclusion that the appellant failed to meet that burden concerning his 1984 -88
service .
¶6 The appellant applied for and received a lump -sum credit for the FERS
contributions he made between 1984 and 1988. IAF, Tab 6 at 15, 24, 26, 33.
Consistent with 5 U.S.C. § 8424 (a), the application he signed specifically warned
that the lump -sum payment “will result in permanent forfeiture of any retirement
rights that are based on the period of service which the refund covers.” Id. at 26;
Moore v. Department of Veterans Affairs , 109 M.S.P.R. 386 , ¶ 9 (2008)
(recognizing that section 8424 provides that an emp loyee separated for at least
31 consecutive days is entitled to be paid a lump -sum credit, but payment of that
lump -sum credit to the employee “voids all annuity rights under this
subchapter”). The appellant has failed to identify, and we are not aware of, any
law, rule, or regulation that would neverth eless permit him to submit a deposit to
cover this service and increase his monthly annuity.
4
¶7 We recognize that Congress amended 5 U.S.C. § 8422 to include section (i),
effective October 28, 2009. See National Defense Authorization Act For Fiscal
Year 2010, Pub. L. No. 111 -84, § 1904, 123 Stat. 2190 , 2616 -17 (2009). That
new provision states:
(i)(1) Each employee or Member who has received a refund of
retirement deductions under this or any other r etirement system
established for employees of the Government covering service for
which such employee or member may be allowed credit under this
chapter may deposit the amount received, with interest. Credit may
not be allowed for the service covered by t he refund until the deposit
is made.
5 U.S.C. § 8422 (i)(1). However, we agree with the administrative judge’s
conclusion that this provision is not retroactive; it applies only to individuals
who, unlike the appellant, were employed under FERS on or after the effective
date of that provision.2 ID at 5 -6; see Hooker v. Department of Veterans Affairs ,
120 M.S.P.R. 629 , ¶ 12 (2014) (recognizing that when Congress intends for
statutory language to apply retroactively, it is capable of doing so very clearly).
¶8 In a February 2011 Benefits Administration Letter (BAL), OPM issued
guidance concerning section 8422, specifying that, “[y]ou cannot pay a civilian
deposit/redeposit for . . . [a]ny period of service under FERS for which you
received a refund of your retirement deductions based on an application you filed
after you had been covered by FERS , if you were not employed under FERS on or
after October 28, 2009.” See BAL No. 11 -103, https://www.opm.gov/retirem ent-
services/publications -forms/benefits -administration -letters/2011/11 -103.pdf (last
visited June 16, 2023 ); see also Cieslinski v. Office of Personnel Management ,
610 F. App’x 979, 981 (Fed. Cir. 2015) (citing OPM’s BAL No. 11-103 and
2 In denying the appellant ’s request to submit a deposit for his 1984 -88 service, OPM
alluded to 5 U.S.C. § 8422 (i). IAF, Tab 6 at 15. Spe cifically, OPM indicated that
“prior to a rule change on 10/28/2009 there was no entitlement to make a redeposit on
refunded service with [FERS]” and the appellant’s FERS annuity commenced in 2002,
well before that rule change. Id.
5
indicating that 5 U.S.C. § 8422 (i) “became law in October 2009 and might not
apply to this case based on [its] effective date”); LeMaster v. Department of
Veterans Affairs , 123 M.S.P.R. 453 , ¶ 11 n.5 (2016) (recognizing that the Board
may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when it finds it s reasoning persuasive). The current application to
make a service credit payment, Standard Form (SF) 3108, includes instructions
that similarly indicate that individual s cannot make a deposit for prior FERS
service if they were not employed under FERS on or after October 28, 2009. See
SF-3108, https://www.opm.gov/forms/pdf_fill/sf3108.pdf (last visited June 16,
2023 ).3 Although BAL No. 11 -103 and SF -3108 were not issued under formal
notice -and-comment rulemaking procedures used in promulgating regulations and
are therefore not entitled to the deference given to regulations, the positions
expressed therein may be entitled to some weight based on, among other things,
their formality and persuasi veness. Brandt v. Department of the Air Force ,
103 M.S.P.R. 6 71, ¶ 14 (2006) . OPM’s BAL and SF -3108, like the VetGuide in
Brandt , are formal documents, prepared for publication —and in fact published —
on the internet, with the apparent expectation that it would be relied on by
agencies, employees, prospective employees, and other interested members of the
public. Id., ¶ 15. Under t he circumstances, we find them persuasive. Because
the appellant’s last day of Federal service was in or around Janua ry 2002,
5 U.S.C. § 8422 (i) does not apply , and he is not permitted to submit a deposit for
his 1984 -88 service. IAF, Tab 6 at 20 -22, 32.
¶9 In his petition for review, the appellant generally suggests that he would
have never knowingly or intentionally a ccepted a refund for his 1984 -88 service
3 We recognize that t he appellant completed his application to make a service credit
payment in December 2001, IAF, Tab 6 at 16, long before the passage of 5 U.S.C.
§ 8422 (i) and the current iteration of SF -3108. However, the record does not include
any instructions to the appellant’s application, for purposes of comparing those in place
then to those in place now.
6
if he had been aware of the consequence s. PFR File, Tab 1 at 3. He asserts that
denying him annuity credit for those years does not reflect the spirit of the law.
Id. However, the Board is not authorized to waive statutorily mandated
requirements for annuity entitlement. See Office of Pers onnel Management v.
Richmond , 496 U.S. 414 , 416, 434 (1990) (finding that the Government cannot be
estopped from denying benefits not otherwise permitted by law even if the
claimant was denied monetary benefits because of his reliance on the mistaken
advice of a Government official). We therefore affirm the initial decision.
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 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.
4 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.
7
(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 “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
8
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appoi nted lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gu ide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants 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 | STRICKER_TERRY_L_DE_0841_16_0282_I_1_FINAL_ORDER_2041739.pdf | 2023-06-16 | null | DE-0841 | NP |
3,019 | https://www.mspb.gov/decisions/nonprecedential/GUNDERSON_CHRISTOPHER_R_SF_1221_16_0159_W_1_REMAND_ORDER_2041889.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER R. GUNDE RSON,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-1221 -16-0159 -W-1
DATE: June 16, 2023
THIS ORDER IS NONPRECEDENTIAL1
Christopher R. Gunderson , Ashburn, Virginia, pro se.
Michelle J. Hirth , Esquire, Monterey, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a pet ition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction . For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the administrative judge’s findings that the appellant failed to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
nonfrivolously allege that he made a protected disclosure and that his disclosure
was a contributing factor to the personnel action , and REMAND the case to the
regional office for further adjudication in accordance with this R emand Order.
BACKGROUND
¶2 The appellant was a nontenure track Faculty Associate Researcher with the
Naval Postgraduate School (NPS) in Monterey, California . Initial Appeal File
(IAF), Tab 1 at 8, Tab 3 at 6. He held a series of time -limited excepted -service
appointments from 2004 until May 30, 2015 , when the agency decided not to
renew his appointment. IAF, Tab 1 at 8, Tab 3 at 6. Continuation in the
appellant’s position was contingent on the receipt of funding from his sponsor,
the Defense Intelligenc e Agency (DIA) , which was secured through a funding
agreement called the Interservice Support Agreement (ISSA) . IAF, Tab 3 at 31.
¶3 The appellant alleged that, a s of fall 2014, appointments for all nontenure
track appointments were automatically extended every 60 days. Id. at 48. He
alleged that, i n late-fiscal year (FY) 2014 , NPS approved his research proposal
for FY2015 , including a statement of work and budget for his salary for all of
FY2015. IAF, Tab 1 at 13, 18, Tab 3 at 7, 15 -16. However, although NPS
extended his term appointment into FY2015, NPS and DIA did not execute the
ISSA before FY2015 began , resulting in a lapse of funding for his position
beginning October 1, 2014 . IAF, Tab 1 at 14, Tab 3 at 22-24. Believing that
finalization of the agreement was imminent, the appellant went on leave status,
first exhausting his paid leave and then using unpaid leave . IAF, Tab 3 at 23 -24.
In March 2015, DIA executed the ISSA and delivered it to NPS for
counter -signature. Id. at 24-25. The appellant allege d that the NPS president
refused to sign the ISSA, purportedly deciding , in or around April 2015, not to
renew the appellant’s position for FY2016, meaning his appointment would end
on September 30, 2015. Id. NPS allegedly proposed a new ISS A, which DIA
signed on May 28, 2015. IAF, Tab 1 at 14, Tab 3 at 25.
3
¶4 In the meantime, o n May 12, 2015, while still on leave, the appellant filed
an administrative grievanc e alleging that the NPS president had abused his
authority and wasted Government resources by refusing to sign , or delaying
signature to , the ISSA to secure FY2015 funding for the appellant’s position .
IAF, Tab 3 at 22 -27. He alleged that the president “reneged on the prior
agreement by refusing to sign the ISSA that his staff helped prepare .” Id. at 24.
On May 29, 2015, t he appellant’s first -level supervisor denied the grievance,
stating that it raised contractual matters that could not be grieved under the
administrative grievance procedures, and in any event, the appellant’s
appo intment was contingent upon funding that had not been received. Id.
at 30-32. On May 30, 2015, the agency allowed the appellant’s time -limited
appointment to expire , 4 months before the end of the fiscal year, when the
appellant was expecting the appoint ment to end based on prior communications
from the NPS president .2 IAF, Tab 3 at 8, 24-25.
¶5 The appellant filed a complaint with the Office of Special Counsel ( OSC )
seeking corrective action based on the agency’s premature termination of his
appointment in retaliation for raising allegations of waste and abuse in his
administrat ive grievance. IAF, Tab 1 at 9-23. About 5 months later, without
having received an OSC close -out letter, h e filed this Board appeal . Id. at 1-23.
The administrative judge issued a jurisdictional order and, lat er, an order to show
cause. IAF, Tabs 10, 16. The appellant respo nded to both orders. IAF, Tabs 11,
13, 17. Without holding a he aring, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 19, Initial
Decision (ID) at 1-12. The administrative judge found that the appellant had
exhausted his ad ministrative remedies with OSC but that he failed to
2 Although the S tandard Form 50 terminating the appellant’s appointment was effective
May 30, 2015, the appellant alleges that he did not learn that his appointment was
terminated until Ju ne 2015. IAF, Tab 1 at 5 , 14.
4
nonfrivolously allege that he engaged in protected activity or made a protected
disclosure under 5 U.S.C. § 2302 . ID at 5-9. The administrative judge further
found that the ap pellant failed to make a nonfrivolous allegation that his alleged
protected activity was a contributing factor in the agency’s decision to terminate
his appointment. ID at 9-12. The appellant has filed a petition for review and the
agency has filed a res ponse . Petition for Review (PFR) File, Tab s 2, 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), the
Board has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes non frivolous allegations that
(1) he made a protected disclosure describe d 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 contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302 (a). Edwards v. Department of Labor , 2022 MSPB 9 , ¶ 8;
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). As
explained by the U.S. Court of Appeals for the 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 he alleges “sufficient factual matter, accepted as true, to state a claim
that is plausible on its face.” Hessami , 979 F.3d at 1369. The Board may not
deny jurisdicti on by crediting the agency’s interpretation of the evidence. Id.
Any doubt or ambiguity as to whether the appellant has made a nonfrivolous
allegation should be decided in favor of affording the appellant a hearing.
Huffman v. Office of Personnel Manage ment , 92 M.S.P.R. 429 , ¶ 13 (2002).
5
¶7 We find no reason to disturb the administrative judge’s finding that the
appellant exhausted his administrative remedies with OSC before filing this
appeal. ID at 8 -9. His OSC complaint identified the protected activity or
disclosure as his May 12, 2015 grievance and the personnel action as the
termination of his appointment on May 30, 2015 .3 IAF, Tab 1 at 9 -23. We agree
with the administrative judge’ s finding that the appellant did not nonfrivolously
allege that he engaged in protected activity pursuant to 5 U.S.C.
§ 2302 (b)(9)(A)(i) because the subject of his grievance was explicitly excluded
from NPS’s administrative grievance procedures , and therefore it was not a
grievance right that was granted by law, rule, or regulation as required for
coverage under 5 U.S.C. § 2302 (b)(9)(A)(i) . ID at 5 -7; see Secretary of the Navy
Instructions (SECNAVINST) 12771.2, Department of the Navy Ad ministrative
Grievance System ¶ 3.f(11) (July 30, 2010)4 (stating that t he termination of a
time -limited excepted appointment is exempt from the grievance procedures) ; see
also 5 U.S.C. § 2302 (b)(9)(A)(i) (stating that an agency may not take, or fail to
take, a personn el action because of “the exercise of any appeal, complaint or
grievance right granted by any law, rule, or regulation”). However , we disagree
with the administrative judge’s finding s that the appellant failed to nonfrivolously
allege that he made a pro tected disclosure pursuant to 5 U.S.C. § 23 02(b)(8) and
3 The agency argues that the appellant exhausted a claim that he engaged in protected
activity under 5 U.S.C. § 2302 (b)(9) but not a claim that he made a protected disclosure
under section 2302(b)(8). PFR File, Tab 4 at 5 -6. We disagree. To prove exhaustion,
the appellant need only demonstrate that he provided OSC with a sufficient basis to
pursue an investigation. See Chambers v. Department of Homeland Security ,
2022 MSPB 8 , ¶ 10. The appellant alleged in his OSC complaint that NPS retaliated
against him for the allegations set forth in his g rievance, thereby implicating both
5 U.S.C. § 2302 (b)(8) and (b)(9) and providing OSC with a sufficient basis to pursue an
investigation. IAF, Tab 1 at 12.
4 The Navy Instructions and Regulations that are referenced in this Order are available
by searching the title number on the Secretary of the Navy’s website at
www.secnav.navy.mil.
6
that he failed to nonfrivolously allege that his protected disclosure was a
contributing factor to the termination of his appointment , as set f orth below. ID
at 7-9.
The appellant nonfrivolously alleged that he made a protected disclosure pursuant
to 5 U.S.C. § 2302 (b)(8) .
¶8 The appellant alleged that, between March and June 2015, he disclosed in
phone and email communications, and in his administrative grievance, that the
NPS president abused his authority and wasted funds when he failed to accept and
spend obligated funds from DIA . IAF, Tab 3 at 22-24, Tab 11 at 9-11. He
asserted that, by NPS’s acceptance of the research proposal and statement of work
for FY2015, it obligated itself to accept funds from DIA to cover the planned
work. IAF, Tab 3 at 7 , 14-15. He alleged that NPS’s unilateral failure to accept
the funds, ow ing to what he believed to be unnecessary changes to the ISSA,
caused the money to be wasted because it could not be reallocated . IAF, Tab 3
at 7, Tab 11 at 16, Tab 17 at 6. On review, the appellant assert s that the failure to
accept the obligated funds was against the taxpayers’ intended use. PFR File,
Tab 2 at 17. The appellant also asserted, in his email communications with the
agency, that the agency violated its administrative grievance system policie s
while processing his grievance . IAF, Tab 11 at 9 -11.
¶9 In the initial decision, t he administrative judge found that the appellant
failed to nonfrivolously allege that he disclosed an abuse of authority or a gross
waste of funds. ID at 8 . We agree wit h those findings for the reasons stated in
the initial decision .
¶10 However, as explained below, we find that the appellant nonfrivolously
alleged that he disclosed a violation of law, rule, or regulation. Specifically , it
appears that the appellant may ha ve raised an allegation before the administrative
judge that he disclosed , via his grievance and related communications , a violation
of law, rule, or regulation . This allegation was not specifically addressed in the
7
initial decision .5 IAF, Tab 11 at 8-9, 11. In his pleadings, the appellant
identified various internal Navy policies that he alleges the NPS president
violated , including Article 1023 of Navy Regulations , which states that “[p]ersons
in authority are forbidden to injure their subordinates by tyrannical or capricious
conduct, or by abusive language,” and the Navy Core Values, which state , in part,
that Navy personnel are required to exhibit “virtue, honor, patriotism, and
subordination.” IAF, Tab 11 at 8; see U.S. Navy Regulations, Chapter 10,
Precedence, Authority, and Command, Section 2, Article 1023; SECNAVINST
5350.15D, Department of the Navy Core Values Charter and Ethics Training, ¶ 6
(Apr . 18, 2018).6 Assuming these regulations apply to the NPS president, we find
that the appellant fail ed to nonfrivolously allege that he held a reasonable belief
that failing to sign, or delaying signature to, the ISSA violated these provisions .
Although the appellant has stated that the Navy Core Values “would require that
[a]gency leaders avoid ‘waste’ and ‘abuse,’” we find nothing in the language of
SECNAVINST 5350.15D that would support this assertion. IAF, Tab 11 at 7.
¶11 Notwithstanding , the appellant nonfrivolously alleged that he disclosed
what he reasonably believed to be violations of the agency’s administrative
grievance policies , which are set forth in SECNAVINST 12771.2 . IAF, Tab 11
at 9-11. For this reason, we find that t he appellant has nonfrivolously alleged that
5 The appellant did not specifically allege to OSC that he disclosed a violation of law,
rule, or regulation. IAF, Tab 1 at 12 -13, 17. The Board has held, however, that it will
not require that an appellant correctly label, in a whistleblower complaint to OSC, the
category of wrongdoing under 5 U.S.C. § 2302 (b)(8) that might be implicated by a
particular set of facts and that the appellant’s claim should be construed broadly at the
jurisdictional s tage. See El v. Department of Commerce , 123 M.S.P.R. 76 , ¶ 11 (2015 ),
aff’d , 663 F. App’x 921 (Fed. Cir. 2016) . Further, an appellan t may give a more
detailed account of his whistleblowing activities before the Board than he did to OSC.
Chambers , 2022 MSPB 8 , ¶ 10.
6 In his pleadings, the appellant referenced SECNAVI NST 5350.15C. IAF, Tab 11 at 8.
That instruction was replaced by SECNAVINST 5350.15D, effective April 2018. See
SECNAVINST 5350.15D ¶ 2.
8
he reasonably believed that he disclosed a violation of a rule and an abuse of
authority via his administrative grievance and related communications . See Rusin
v. Department of the Treasury , 92 M.S.P.R. 298, ¶¶ 14-19 (2002) (finding that an
allegation of a violation of a Procurement Instruction Memorandum constituted a
nonfri volous allegation of a violation of a rule) ; Loyd v. Department of the
Treasury , 69 M.S.P.R. 684, 687 -89 (1996) (holding that allegati ons of
impropriety in the handl ing of a grievance can constitute allegations of an abuse
of authority) .
The appellant nonfrivolously alleged that his protected disclosure was a
contributing factor to the agency’s nonrenewal of his appointment on May 30,
2015.
¶12 The appellant may demonstrate that a protected disclosure was a
contributing factor in a personnel action through circumstantial evidence,
including, but not limited to, evidence that the official taking the personnel action
knew of the protected disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the protected
disclosure was a contributing factor in th e personnel action. 5 U.S.C.
§ 1221 (e)(1); see Easterbrook v. Department of Justice , 85 M.S.P.R. 60 , ¶ 7
(2000). An appellant need only raise a nonfrivolous allegation that the fact of, or
content of, the protected disclosure was one factor that tended to affect the
personnel action in any way. Baldwin v. Department of Veterans Affairs ,
113 M.S.P.R. 469 , ¶ 22 (2010).
¶13 The appellant has alleged that the provost and/or the president made the
decision to allow his time -limited appointment to expire on May 30, 2015 . IAF,
Tab 1 at 8, 20, Tab 17 at 5 -6. He alleged that the president likely had knowledge
of his grievance because he was the subject of the grievance and because NPS’s
general counsel allegedly told the appellant that the president “coordinated” the
grievance. IAF, Tab 1 at 20. The appellant also alleged that , due to the serious
nature of the allegations against the president, it is likely that the allegations
9
would have been forwarded to the presi dent and the provost. IAF, Tab 17 at 5 ,
15; PFR File, Tab 2 at 21 -22. He alleged that agency policy encourage s
allegations of waste and abuse, like those raised in the appellant’s grievance and
related communications , to “be forwarded up the chain of command.” IAF,
Tab 17 at 7. Regarding the tim ing of the personnel action in relation to the
appellant’s protected disclosure , the relevant Standard Form 50 show s that, about
2 weeks after the appellant filed his grievance , the agency decided not to renew
his appointment past May 30, 2015, which was 4 months earlier than previously
announced.7 IAF, Tab 1 at 8, Tab 3 at 7-8, 24 -25. We therefore find that the
appellant has nonfrivolously alleged that his protected disclosure was a
contributing factor to the nonre newal of his appointment on May 30, 2015 . See,
e.g., Mithen v. Department of Veterans Affairs , 119 M.S.P.R. 215 , ¶ 12 (2013)
(finding that the appellant established cont ributing factor when the personnel
action occurred 2 weeks after the protected activity).
7 We acknowledge that the disclosure regarding the agency’s processing of the
grievance postdate s the effective date of the termination of the appellant’s appointment.
IAF, Tab 1 at 8, Tab 11 at 10 -11. However, there is a question about when the decision
was made to allow the appellant’s appointment to expire. IAF, Tab 1 at 8, Tab 3 at 8.
Accordingly, we find that the appellant has met his burden at the nonfrivolous
allegation stage, and the question of whether the disclosure was made prior to the
decisi on not to renew the appellant’s appointment must be resolved at the merits stage.
10
ORDER
¶14 For the reasons discussed above, we find that the appellant has established
jurisdiction over his IRA appeal. Accordingly, we remand this case to the
regiona l office for a hearing on the merits in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GUNDERSON_CHRISTOPHER_R_SF_1221_16_0159_W_1_REMAND_ORDER_2041889.pdf | 2023-06-16 | null | SF-1221 | NP |
3,020 | https://www.mspb.gov/decisions/nonprecedential/ROSARIO_FABREGAS_JOSE_E_NY_1221_18_0073_W_1_FINAL_ORDER_2041293.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE E. ROSARIO -FABREGAS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
NY-1221 -18-0073 -W-1
DATE: June 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose E. Rosario -Fabregas , San Juan, Puerto Rico, pro se.
E. Christopher Lambert and Elizabeth Moseley , Jacksonville, Florida, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed 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
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, de spite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was a GS -12 Biologist with the agency ’s Army Corps of
Engineers . Initial Appeal File (IAF), Tab 1 at 1. He filed a complaint with the
Office of Special Couns el (OSC) in August 2017 , alleging that the agency
retaliated against him for his whistleblowing activities and disclosures by failing
to inform him about a job vacancy announcement . IAF, T ab 4 at 13-19. After
OSC completed its investigation, the appellant filed the instant IRA appeal with
the Board. IAF , Tab 1 at 4-8, Tab 5 at 5. The administrative judge informed the
appellant of his burden of proof on jurisdiction and directed him to su bmit
evidence and argument on that issue. IAF, Tab 3. In response, the appellant
provided additional argument and documentation, such as h is correspond ence
with OSC. IAF, Tabs 4 -5.
¶3 The administrative judge dismissed the appeal for lack of jurisdiction . IAF,
Tab 12, Initial Decision (ID) at 2. Specifically, s he found that the appellant
failed to nonfrivolously allege that anyone in the agency took a personnel action
against him . ID at 6.
3
¶4 The appellant has timely filed a petition for review. Petiti on for Review
(PFR ) File, Tab 1. The agency has filed a response to the petition , to which the
appellant has replied . PFR File, Tabs 4, 6.
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). To establish jurisdicti on in an IRA
appeal, an appellant generally must show by preponderant evidence that he
exhausted his administrative remedies before OSC and make nonfrivolous
allegations2 that (1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8)
or engaged in a protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i),
(B), (C), or (D), and (2) the disclosure or protected activity was a contri buting
factor in the agency’s decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302 (a)(2)(A) . Corthell v. Department of Homeland Security ,
123 M.S.P.R. 417 , ¶ 8 (2016).3
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
3 The appellant submits documents for the first time on review. PFR File, Tab 6
at 15-27. Under 5 C.F.R. § 1201.115 , the Board will not consider evidence submitted
for the first time wi th the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980). The appellant has made no showing here. All of
the documents that the appellant submits on review predate the November 14, 2018
close of the record below and the appellant has not shown that they were unava ilable
before the close of the record despite his due diligence. IAF, Tab 8 at 5. The appellant
also appears to allege as a new personnel action that the agency failed to develop
individual development plans under its Total Army Performance Evaluation Sy stem
(TAPES). PFR File, Tab 1 at 4 -5, 11 -13. However, the appellant did not raise this
claim below. In fact, his only references to the TAPES program below suggested either
that his office was exempt or that it was in compliance w ith the program. IAF, Tab 4
at 8. Because the appellant did not prove he exhausted this claim with OSC or raised it
below, we decline to consider it further. The Board may only consider those personnel
actions that the appellant raised before OSC. Mason v. Department of Home land
Security , 116 M.S.P.R. 135 , ¶ 8 (2011).
4
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that the agency took or failed to take a personnel action
against him .
¶6 In order to prevail in his IRA appeal, the appellant must nonfrivolously
allege that the agency threatened to take or failed to take , or took or failed to
take, a “personnel act ion,” as defined in 5 U.S.C. § 2302 (a)(2)(A). 5 U.S.C.
§ 2302 (b)(8), (b)(9); Rebstock Consolidation v. Department of Homeland
Security , 122 M.S.P.R. 661 , ¶ 9 (2015). As relevant here, “personnel actions”
include a promotion or appointment. 5 U.S.C. § 2302 (a)(2)(A)(i) -(ii); ID at 3.
¶7 In the initial decision, the administrative judge stated that the appellant
alleged that the retaliatory personnel action that resulted from his protected
disclosures was the agency’s failure to personally notify him about a job vacancy
announcement for the GS-13 position of Senior Biologist. ID at 3-4. Although
this action was not specifically listed among the personnel actions in 5 U.S.C.
§ 2302 (a)(2)(A), the administrative judge considered whether the agency’s failure
to notify the appellant of a job vacancy could fall under an appointment. ID at 5.
However, t he administ rative judge found t hat the agency advertised the GS -13
posit ion nationally and that the appellant did not mak e a nonfrivolous allegation
that anyone involved in the recruitment for the GS -13 position took any steps to
prevent him from a pplying. ID at 6. She further observed that, even assuming
management knew he had lost his computer as he claimed , he could have utilized
a different computer to access the vacancy announcement. Id. Thus, the
administrative judge found that the alleged personnel action w as not a “personnel
action” as defined by 5 U.S.C. § 2302 (a)(2)(A). ID at 6. We agree.
¶8 On review, the appellant reiterates his co ntention that, in reprisal for his
whistleblowing activities, the agency subjected him to a personnel action by
failing to personally notify him of the job vacancy announcement in an effort to
5
intentionally exclude him from competition for the position .4 PFR File, Tab 1
at 4, 8-9, Tab 6 at 6. He argues that the administrative judge erred in finding that
he did not allege which management officials prohibited him from applying to the
position and maintains that it is the positions involved —“supervisors, Human
Resources Chief, Commanding EEO and labor counsels” —not the names of the
officials involved that are important. PFR File, Tab 1 at 10 , Tab 6 a t 7. These
arguments concern whether the appellant nonfrivolously alleged that his protected
disclosures w ere a contributing factor in the agency’s alleged action. See Bradley
v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 16 (2016) (explaining
that when the personnel action at issue is a nonselection , an appellant can meet
his burden to nonfrivolously allege contributing factor without specifically
identifying the management officia ls responsible for the reprisal). Because t he
administrative judge did not dismiss the appeal for failure to nonfrivolously
4 On review, the appellant also presents several arguments pertaining to prior appea ls
already disposed of by the Board. PFR File, Tab 1 at 2 -7. For example, he argues that
the instant appeal is “intrinsically interrelated and intertwined” with his 10-year history
of employment with the agency and its prior attempts to remove him. Id. at 5-8.
However, the Board has already issued final d ecisions on two of his prior removals.
Rosario -Fabregas v. Department of the Army , MSPB Docket No. NY -0752 -13-0142 -I-
2, Final Order , ¶¶ 3-4 (July 1, 2016) ; Rosario -Fabregas v. Department of the Army ,
MSPB Docket No. NY -0752 -10-0127 -I-1, Final Order (Nov. 30, 2011 ). He also
references his alleged constructive suspension and the agency’s third attempt to remove
him effective August 2018 . PFR File, Tab 1 at 8 -9, Tab 6 at 5 ; see Rosario -Fabregas v.
Depar tment of the Army , MSPB Docket No. NY-3443 -18-0091 -I-1, Initial Appeal File,
Tab 1 at 4 -5, 12, 14, Tab 11 at 68-69; Rosario -Fabregas v. Department of the Army ,
MSPB Docket No. NY -0752 -18-0221 -I-1, Initial Appeal File, Tab 1 at 5 -6, Tab 6
at 8-9. These arguments have no relevance to the instant appeal and we have not
addressed them. See generally Jennings v. Social Security Administration ,
123 M.S.P.R. 577 , ¶ 25 (2016) (reflecting that under the doctrine of res judicata, a
valid, final judgment on the merits of a n action bars a second action involving the same
parties or their privies based on the same cause of action ); Bean v. U.S. Postal Service ,
120 M.S.P.R. 447, ¶ 5 (2013) (explaining that w hen an appellant files an appeal that
raises claims raised in an earlier appeal after the initial decision in the earlier appeal
has been issued, but before the full Board has acted on the appellant ’s petition for
review, it is appropriate to dismiss the subsequent appeal on the grounds of
adjudicatory efficiency ).
6
allege contributing factor, these arguments are not material to the issue presented
on review.
¶9 In previous cases in which the Board has considered whether a failure to
promot e was a personnel action under whistleblower protection statutes , the
agency had announced a vacancy , the appellant had applied for the position , and
the agency filled it with another individual or canceled the vacancy
announcement . Ruggieri v. Merit Systems Protection Board , 454 F. 3d 1323 ,
1325 -27 (Fed. Cir. 2006) (holding that, in the context of an appointment, the
agency’s decision to term inate the h iring process by cancelling the vacancy
announcement was sufficient under the plain language of the statute to constitute
a “fail[ure] to t ake . . . a personnel action”). In essence, an appellant can
establish he suffered a personnel action by nonfrivolously alleging that the
agency intentionally used a particular hiring process as a scheme to deny a
whistleblower an opportunity to see k the appointment. Weed v. Social Security
Administration , 113 M.S.P.R. 221 , ¶ 17 (2010). The appellant observes that he
was in a nonduty status and speculates that the agency was aware that he had no
computer and internet access and argues th at the administrative judge presumed
he had an “intelligent phone” that could alert him to the vacancy announcement .
PFR File, Tab 1 at 11. Even assuming the appellant’s allegations are true, the
agency’s failure to call him personally is not a failure t o take a personnel action
“with respect to” him, as required by the whistleblower reprisal statutes.
5 U.S.C. § 2302 (a)(2), (b)(8) -(9). Rather , it is a failure to treat him more
favorably than ot her candidates . See Carr v. Social Security Administration ,
185 F.3d 1318 , 1326 (Fed. Cir. 1999) (finding that the Whistleblower Protection
Act of 1989 (WPA) is not meant to protect employees from their own
misconduct) . We decline to find under the circumstances here that the appellant
was entitled to the better treatment he seeks.
7
Absent a personnel action, the Board lacks jurisdiction to revi ew the appellant’s
claims that the agency violated the law.
¶10 On review, the appellant reasserts that he made protected disclosures.
PFR File, Tab 1 at 2 -3. However , absent a “personnel action,” the Board lacks
jurisdiction over the appellant’s IRA appeal . See Shivaee v. Department of the
Navy , 74 M.S.P.R. 383 , 387 (1997) (finding that, in order for a right of appeal to
accrue under the WPA , a predecessor to the Whistleblower Protection
Enhancement Act of 2012 , the appellant must establish that he was subject to a
threatened personnel action); see also Yunus v. Department of Veterans Affairs ,
242 F.3d 1367 , 1371 (Fed. Cir. 2001 ) (finding that, to establish Board jurisdiction
over an IRA appeal, an appellant must establish both that he m ade a protected
disclosure and that the disclosure was a contributing factor in the decision to take
or fail to take a personnel action). Therefore, once the administrative judge found
that the appellant failed to raise a nonfrivolous allegation that the agency took or
failed to take a personnel action against him, she was not required to address
whether the appellant had a reasonable belief that the agency was violating the
law.5 See Shivaee , 74 M.S.P.R. at 387 -89 (dismissing an IRA appeal on the
ground that the appellant failed to raise a nonfrivolous allegation of a personnel
action, without addressing whether he had a reasonable belief that the agency
violated the law).6
5 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outc ome of the appeal.
6 Because the Board lacks jurisdiction over the underlying action in this appea l, we also
lack jurisdiction over the appellant’s discrimination and due process claims . See Rivera
v. Department of Homeland Security , 116 M.S.P.R. 429 , ¶ 16 (2011) (finding that
allegation s that an agency failed to provide due process and discriminated against the
appellant do not confer an independent basis for the Board to review matters outside of
its jurisdiction); PFR File, Tab 1 at 5, 12 -13, Tab 6 at 10 -11.
8
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your pa rticular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review right s included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate 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 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
race, color, 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
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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 personne l 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
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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
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 | ROSARIO_FABREGAS_JOSE_E_NY_1221_18_0073_W_1_FINAL_ORDER_2041293.pdf | 2023-06-15 | null | NY-1221 | NP |
3,021 | https://www.mspb.gov/decisions/nonprecedential/MORRIS_SUSAN_M_DC_1221_12_0749_B_1_FINAL_ORDER_2041314.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUSAN M. MORRIS,
Appellant,
v.
ENVIRONMENTAL PROTEC TION
AGENCY,
Agency.
DOCKET NUMBER
DC-1221 -12-0749 -B-1
DATE: June 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David H. Shapiro , Esquire, Washington, D.C. , for the appellant.
Alexandra Meighan , 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 her request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 petitio ner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings i n 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 appel lant was formerly employed as a supervisory GS -15 Assistant
Director in the agency’ s Office of Civil Rights (OCR) . Morris v. Environmenta l
Protection Agency , MSPB Docket No. DC-1221 -12-0749 -W-1, Initial Appeal File
(IAF), Tab 1 at 2, 25 . On February 3 , 2010, the OCR Director reassigned the
appellant to a non supervisory GS-15 position in OCR due to her conduct and
alleged ongoing di srespect . Morris v. Environmental Protection Agency , MSPB
Docket No. DC-1221 -12-0749 -B-1, Remand File (RF), Tab 14 at 14. On
March 23, 2010, the OCR Director proposed to remove the appellant based on
four charges : insubordination, wrongful disclosure of confide ntial personal
information, misuse of supervisory authority, and making inappropriate
statements in a work product. Id. at 4-9. Effective August 12, 2010, the agency
removed the appellant. RF, Tab 13 at 44. The appellant filed a Board appeal
alleging th at the agency’s actions were taken in retaliation for alleged protected
disclosure s she made in December 2009 and January 2010 regarding the agency’s
failure to file annual reports required by the Equal Employment Opportunity
3
Commission (EEOC) as well as her alleged December 15, 2009 disclosure of
nepotism . IAF, Tab 1; RF, Tab 9 at 20.
¶3 In an initial decision based on the written record , the administrative judge
found Board jurisdiction over the appellant’s claim that her reassignment was in
reprisal for whistleblowing, but she denied corrective action on the merits of that
claim . IAF, Tab 30 , Initial Decision (ID) at 7-9. The administrative judge found
that the appellant’s claims concerning her proposed removal and removal were
barred by the doctrine o f res judicata because she previously had withdrawn a
separate adverse action appeal of her removal. ID at 5-7. On review, the Board
vacated the initial decision and remanded the appeal, finding that the appellant’s
claim regarding her proposed removal w as not barred by res judicata and the
appellant had made nonfrivolous allegations of Board jurisdiction over her IRA
appea l entitling her to a hearing , if requested. RF, Tab 1. The Board remanded
the appeal for complete adjudication of the issues, and a hearing, if requested ,
noting that the appellant withdrew her hearing request below after the
administrative judge determin ed that her proposed removal claim was barred by
res judicata. Id. at 6 n.2.
¶4 On remand, after holding a hearing, the administrative judge issued a
remand initial decision , denying the appellant’s request for corrective action. RF,
Tab 34, Remand Initial Decision (RID). The administrative judge found that the
appellant made protected disclosures in December 2009 and January 2010, when
she disclosed that the agency had violated the EEOC’s Management Directive 715
(MD -715) by failing to submit required annual reports beginning with the
2006 -07 report. RID at 8, 10-11. The adm inistrative judge further found that the
appellant met h er burden of proving that her December 2009 disclosures were a
contributing factor in the agency’s decision to reassign her and propose her
4
removal based on the knowledge -timing test.2 RID at 13 -15. Regarding the
appellant’s December 15, 2009 alleged dis closure of nepotism , the administrative
judge found that the appellant failed to prove that she had a reasonable belief that
she was disclosing a violation of laws prohibiting nepotism because she did not
offer any information concerning when the alleged i mproper appointments at
issue took place, where the individuals at issue worked, or why she believed the
hiring was improper. RID at 11 -13. Lastly, t he administrative judge found that
the agency proved by clear and convincing evidence that it would have reassigned
the appellant and propose d her removal absent her disclosures because , despite
the proposing official’s substantial motive to retaliate, the agency had strong
legitimate reasons for its actions based on the appellant’s misconduct as reflected
in charges 1 -3 of the proposed removal. RID at 15-30.
¶5 The appellant has filed a pe tition for review in which she contends that the
administrative judge erred in finding that her disclosure regarding alleged
nepotism was not protected and in finding that the agency met its burden of
proving it would have taken the personnel actions absent her protected
disclosures. Morris v. Environmental Protection Agency , MSPB Docket No. DC-
1221 -12-0749 -B-1, Petition for Review (PFR) File, Tab 1 at 1 -17. The agency
has op posed the appellant’s petition. PFR File, Tab 3.
2 The administrative judge found that the appellant failed to show that her January 28,
2010 disclosure to the Offic e of the Inspector General was a contributing factor in her
reassignment or propose d removal . RID at 15. The appellant does not challenge this
finding on review, and we discern no error in the administrative judge’s analysis.
5
DISCUSSION OF ARGUME NTS ON REVIEW3
The administrative judge properly found that the appellant’s disclosure of alleged
nepotism was not protected.
¶6 The appellant contends that she disclosed violations of law prohibiting
nepotism i n an attachment to her December 15, 2009 email, in which she stated
that “a review was made that found that sons, daughters and other relatives are
being hired into position s at [the agency] and the ‘buddy system’ prevails. ’” RF,
Tab 28 at 8. To prove that her disclosure is protected, the appellant must prove
by preponderant evidence4 that a disinterested observer with knowle dge of the
essential facts known to and readily ascertainable by her coul d reasonably
conclude that the alleged conduct occurred and evidences one of the categories of
wrongdoing identified in 5 U.S.C . § 2302 (b)(8)(A). Shannon v. Department of
Veterans Affairs , 121 M.S.P.R. 221 , ¶ 28 (2014) . The test for protected status is
not the truth of the matter disclosed but whether it was reasonably believed. Id.
¶7 On review, the appellant argues that the administrative judge erred in
requiring her to identify the specific statute that was violated and in requiring her
to provide objective evidence to support her claim that the alleged hiring was
improper .5 PFR File, Tab 1 at 6-8. To the extent the administrative judge found
that the appellant failed to prove that the hiring of emp loyees’ relatives was
improper, we agr ee with the appellant t hat this is not a valid basis for finding that
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.
4 A prepo nderance 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 tr ue than untrue. 5 C.F.R. § 1201.4 (q).
5 In support of her arguments, the appellant cites to Hudson v. Department of Veterans
Affairs , 104 M.S.P.R. 283 , ¶ 13 (2006). PFR File, Tab 1 at 7 -8. Hudson , however, is
distinguishable because it concerns whether the app ellant made a nonfrivolous
jurisdictional allegation that he made a protected disclosure, not whether he met his
ultimate burden of proving by preponderant evidence that he made a protected
disclosure . Here, the administrative judge found that the appella nt made a nonfrivolous
allegation of jurisdiction, relying on Hudson . RID at 13 n.11.
6
her disclosure is not protec ted under 5 U.S.C. § 2302 (b)(8), because the appellant
need only show that she had a reasonable bel ief that such hiring was improper.
We find, however, that a ny such error was immaterial here because we agree with
the administrative judge’s ultimate conclusion that the appellant failed to prove
that a reasonable person would have believed the agency wa s violating laws
against nepotism and preferential treatment set forth in 5 U.S.C. § 2302 (b)(6) -(7).
RID at 13; 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 fo r reversal of an initial decision).
¶8 The administrative judge found that the appellant failed to specify in any
detail the grounds for her belief that these sections were violated and, thus, failed
to prove that a reasonable person would have believed that the agency was
violating section 2302(b)(6) -(7). RID at 13. On review, th e appellant does not
dispute these findings , and we discern no reason to disturb the administrative
judge’s conclusion that the appellant failed to provide sufficient evidence to
establish that a reasonable person could conclude that the agency was violating
any law, rule, or regulation concerning nepotism. Drake v. Agency for
International Development , 543 F.3d 1377 , 1381 (Fed. Cir. 2008) (determining
whether an appellant has a reasonable belief that a law, rule, or regulation was
violated turn s on the facts of a particular case); Mc Corcle v. Department of
Agriculture , 98 M.S.P.R. 363, ¶ 21 (2005) (finding that an appellant must provide
more than vague and conclusory allegations of wrongdoing to establish that he
made a protec ted disclosure).
The administrative judge properly determined that the agency proved by clear and
convincing evidence that it would have reassigned the appellant and proposed her
removal in the absence of her protected disclosures.
¶9 Even if an appellant est ablishes that she made protected disclosures that
were a contributing factor to the agency’s personnel action, the Board will not
order corrective action if the agency can show by clear and convincing evidence
7
that it would have taken the action absent the protected disclosures. 5 U.S.C.
§ 1221 (e)(2); Lu v. Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 7
(2015). Clear and convincing evidence is that measure or degree of proof that
produces in the mind of the trier of fact a firm belief as to the allegations sought
to be established; it is a higher standard than the “preponderance of the evidence”
standard. Sutton v. Department of Justice , 94 M.S.P.R. 4 , ¶ 18 (2003), aff’d ,
97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R. § 1209.4 (e).
¶10 In determining whether an agency has met this burden, the Board will
consider the following factors: (1) the strength of the agency’s evidence in
support of the action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the decision; and (3) an y
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Lu, 122 M.S.P.R. 335 ,
¶ 7 (citing Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir.
1999)). The Board does not view these factors as discrete elements, each of
which the agency must prove by clear and convincing evidence. Rather, the
Board will weigh the factors together to determine whether the evidence is clear
and convincing as a whole. Id. The Board must consider all of the evidence
presented , including evidence that detracts from the conclusion that the agency
met its burden. Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed.
Cir. 2012).
¶11 Regardi ng the second Carr factor, we agree with the administrativ e judge
that the proposing official had a substantial motive to retaliate because she was
responsible for approving and signing the MD -715 reports . RID at 16 . Such a
motive is reflected most promi nently in charge 4 of the proposed removal, which
is itself based on the appellant’s December 15, 2009 protected disclosure that the
proposing offic ial was allegedly responsible for the agency’s failure to submit the
required MD -715 reports . RF, Tab 14 at 9. The proposing official disputed that
she had wrongfully delayed the issuance of the MD -715 reports, and she charged
8
the appellant with making false and inappropriate statements. Id. Because the
sole specification set forth to support charge 4 is grounded in the appellant’s
protected disclosure, charge 4 cannot serve as evidence in support of the agency’ s
burden of establish ing that it would have disciplined the appellant for reasons
unrelated to her protected disclosure. See Greenspan v. Department of Veterans
Affairs , 464 F.3d 1297 , 1305 (Fed. Cir. 2006) (finding that, because the charges
were anchored in the protected disclosures themselves, the agency failed t o show
substantial evidence in support of its burden); see also Chambers v. Department
of the Interior , 602 F.3d 1370 , 1380 (Fed. Cir. 2010) (stating that discipline may
not be ba sed on a protected disclosure) .
¶12 On review, the appellant argues that the agency ca nnot meet its burden
because her emails that form the basis of charges 1 and 2 also served as the
source of her protected disclosures . PFR File, Tab 1 at 9 -10. However, c harges 1
and 2 are not anchored in the appellant’s disclosures related to the MD -715
reports, but rather merely stemmed from the same source, the appellant’s emails.
As the administrative judge found, none of the sta tements from the emails cited in
support of charge 1 concerned the ap pellant’s protected disclosures. R ather ,
charge 1 was based on the appellant’s additional inappropriate and disrespectful
statements regarding her supervisor.6 RID at 17-18. Thus, we f ind that, even if
the purpose of the appellant’s emails was to report the agency’s failure to file the
MD-715 reports, this purpose is not sufficient to insulate the appellant from
discipline based on the nature of the additional inappropriate and disrespe ctful
statements in her emails. See Kalil v. Department of Agriculture , 479 F.3d 821 ,
824-25 (Fed. Cir. 2007) (rejecting the appellant’s argument that once a disclosure
quali fies as protected, the character or nature of that disclosure can never support
6 Moreover, specification 3 in support of charge 1 charged the appellant with
insubordination during a monthly EEO Officers call based on her behavior that was
wholly unrelated to her protected disclosures , which were neither made nor mentioned
during the call. RF, Tab 14 at 7 -8.
9
a disciplinary action); Greenspan , 464 F.3d at 1305 (stating that wrongful or
disruptive conduct is not shielded by the presence of a protected disclosure);
Watson v. Departmen t of Justice , 64 F.3d 1524 , 1528 -30 (Fed. Cir. 1995)
(rejecting the appellant’s argument that an adverse action must be based on facts
completely separate and distinct from pro tected whistleblowing disclosures).
Therefore , the central question in this appeal is whether the agency has met its
burden of establishing that it would have reassigned and proposed the appellant’s
removal based on her miscond uct as set forth in charges 1-3 absent the protected
disclosure identified in charge 4.7
¶13 Upon review of the record below, we agree with the administrative judge
that the agency met its burden . RID at 17 . The administrative judge considered
the specifications underlying charges 1-3 in the proposal notice , the record
evidence, and the hearing testimony . RID at 17 -30. She carefully balanced the
Carr factors and determined that the strength of the agency’s evidence
outweighed the proposing official’s substantial motive to retaliate. RID at 16-30.
¶14 Regarding specifications 1 and 2 of charge 1, the administrative judge
found that the appellant’s December 11 and 14, 2009 emails were insubordinate
because they contained negative characterizations of the proposing offi cial and
her leadership and also denigrated a number of the appellant’s colleagues. RID
at 18-19. The administrative judge also found that the appellant admitted, in
essence, that her emails were unprofessional. RID at 19. Further , the
administrative j udge found that the appellant previously had been directed to
behave civilly, an order which she intentionally disregarded by publicly
7 This appeal concerns only the agency’s decision to reassign the appellant and propose
her removal, not its decision to sustain the removal because, as was previously
determined, the issue of whether the appellant was removed in reprisal for
whistleblowing is barred by res judicata. RF, Tab 1. Thus, the agency need only prove
that it would have proposed the appellant’s removal, not that it w ould have sustained
the charges. Additionally, the appellant’s reassignment was also based on her alleged
misconduct as set forth in the proposed removal. RF, Tab 14 at 4 n.1.
10
denigrating her supervisor and colleagues in the emails. RID at 1 9. In particular,
the administrative judge found that the appellant had received a lower
performance appraisal rating in 2007 due to her difficulty working with others,
had served a 7 -day suspension in 2007 for insubordination, and had been directed
in March 2009 to be civil and treat her colleagues with resp ect. RID at 17. On
review, t he appellant contends that the proposing official did not specifically
testify that her emails were insub ordinate. PFR File, Tab 1 at 14-15. In an IRA
appeal, however, the Board lacks the authority to adjudicate the merits o f the
underlying personnel action; rather, our jurisdiction is limited to adjudicating the
whistleblower allegations. See Lu , 122 M.S.P.R. 335 , ¶ 7. The relevant inquiry
is not whether the appellant committed any actual misconduct but whether the
agency had strong evidence to support its personnel action. Phillips v.
Department of Transportation , 113 M.S.P.R. 73 , ¶ 15 (2010). Here, g iven the
tone and content of the appellant’s emails, and the fact that she had a history of
similar misconduct, we fin d that the agency had sufficient reason to propose her
removal.
¶15 Regarding specification 3 of charge 1, the administrative judge found that
the appellant’s conduct on a January 19, 2010 monthly EEO conference call was
insubordinate . RID at 25. The administrative judge credited testimony of the
proposing official and several other individuals who were on the telephone call,
who stated that the appellant acted inappropriately and unprofessionally when she
interrupted the proposing official to question another employee’s competence,
expressed her disagreement with that employee’s assignment, and continued to
press these issues despite the proposing official’s instruction that they discuss
them at a later time. RID at 20 -25. The administrative judge found that the
proposing official’s testimony was consistent with her January 20, 2010
memo randum and her statements in the notice of proposed removal, and was
corroborated by witness testimony, a witness statement , and a January 21, 2010
email from an employee on the call. RID at 22-23, 25 . The appellant contends
11
on review that the testimony established that she was not loud and rambling and
did not refer to a coworker as incompetent. PFR File, Tab 1 at 15 -17. However,
the administrative judge weigh ed the conflicting testimony and determined that,
although the appellant was not loud and rambling and did not refer to a coworker
as incompetent, her behavior was insubordinate because she referred to the
coworker as nonperforming, questioned the coworker ’s competence, and
interrupted the proposing official, after being told to discontinue her comments.
RID at 24-25. It is well -established that the Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of wit nesses testifying at a hearing and
the Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed.
Cir. 2002). We find that t he appellant has not provided sufficiently sound reasons
for overturning the administrative judge’s credibility findings.
¶16 Regarding charge 2 , Wrongful Disclosu re of Confidential Personal
Information, the administrative judge found that the proposing official reasonably
believed that the appellant acted improperly by disclosing information in her
December 11 and 14, 2009 emails concerning an employee’s illness an d EEO
complaints that had been filed. RID at 26. The administrative judge found that ,
although the appellant did not learn of such information through confidential
means, the proposing official reasonably believed that she acted improperly by
sharing the information because it was unrelated to her work, there was no reason
to send it to the email recipients, and , although some of the information may have
been common knowledge in her office, the appellant admitted that she was not
sure whether all of the email recipients were aware it. RID at 26 -27.
Nonetheless, we agree with the administrative judge that this alleged misconduct
was poorly charged . See Scoggins v. Department of the Army , 123 M.S.P.R.
592,¶¶ 45 -46 (2016) (explaining that in evaluating the strength of the agency's
evidence in support of its charge, the Board considers the charge brought and not
12
whether the agency could have proven a charge that it did not bring) . We
therefore find the agency did not provide strong evidence in support of charge 2 .
¶17 Regarding charge 3, the administrative judge found that the agency had
substantial evidence in support of its ch arge of misuse of supervisory authority.
Id. The administrative judge credited the test imony of the proposing official that
one of the appellant’s subordinates had called her on his day off to report that the
appellant had removed him from working on a p roject and accused him of being
disloyal because he had discussed a potential speaker for the event with the
proposing official. Id. The administrative judge found such testimony to be
consistent with a December 18, 2009 email the proposing official sent to the
appellant, a declaration submitted by the appellant’s subordinate, and the notice
of proposed removal. RID a t 28. The appellant alleges on review that the
administrative judg e improperly failed to consider testimony that she acted
properly in removing her subordinate from the project because he agreed to pay a
proposed speaker for an event without first discussing it with her.8 PFR File,
Tab 1 at 12. However, the administrativ e judge considered such testimony but
found it was not credible. RID at 28 -29. The administrative judge found the
appellant’s testimony on this issue to be confusing, contradictory, and less than
credible. RID at 28. She similarly found the appellant’s witness, A.W., was not
credible because her testimony contradicted her prior declaration and she testified
that she did not recall either the details of the prior declaration, or the declaration
itself . RID at 29.
8 The appellant also argues that the proposing official’s testimony is inconsistent
because the proposal notice stated that she had to direct the appellant to allow the
subor dinate to complete the project, but at the hearing she testified that she allowed th e
appellant to remove the subordinate from the project. PFR File, Tab 1 at 12 -13.
However, the proposing official also testified that she directed the appellant to allow
the subordinate to finish the project, Hearing Transcript at 297 (testimony of the
proposing official), which is consistent with her December 18, 2009 email to the
appellant, RF, Tab 14 at 42. The record is not developed as to why, despite such
instruction, the appellant’s subordinate did not complete the project.
13
¶18 We find that the nature of the charges 1 and 3 provided substantial support
for the proposing official’s decision to reassign the appellant and propose her
removal . The facts upon which the se charges and spe cifications were based
suggest that the appellant’s relat ionship with her supervisor was adversarial and
that her attitude toward the workplace had deteriorated to the point where she had
become disrespec tful, disruptive , and discourt eous . RID at 30. Although the
proposing official seemingly had a substantial motive to retaliate against the
appellant, it appears that her primary motive for di sciplining the appellant was
her concern over the appellant’s failure to follow directions and the appellant’s
disrespectful and disruptive conduct , rather than due to her protected disclosures.
Accordingly, we agree with the administrative judge that the retaliatory motive
was outweighed by the strength of the evidence in support of the agency’s
actions . See Redschlag v. Department of the Army , 89 M.S.P.R. 589 , ¶ 89 (2001)
(weighing the first Carr factor in the agency's favor, despite the fact that not all
of the charges and specifications were sustained). The lack of evidence
suggesting that the appellant was treated differently than similarly situated non -
whistleblowers does not alter our finding. RID at 15; see Siler v. Environmental
Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018) (finding that Carr factor
3 cannot weigh in the agency’s favor in the absence of relevant comparator
evidence); Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 18 (same).
¶19 Accordingly, we affirm the init ial decision, denying the appellant’ s request
for corrective action.
NOTICE OF APPEAL RIG HTS9
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal o f your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below 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 Appeals for the
Federal Circuit, you must submit your petition 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.
15
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no lat er than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) 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
16
EEOC’s Office of Federal Operations within 30 calendar days after you rece ive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), ( C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
10 The original statutory provisio n that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
17
review within 60 days of th e date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained 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.
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.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.
18
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 | MORRIS_SUSAN_M_DC_1221_12_0749_B_1_FINAL_ORDER_2041314.pdf | 2023-06-15 | null | DC-1221 | NP |
3,022 | https://www.mspb.gov/decisions/nonprecedential/SEDA_ANTHONY_PH_0752_17_0451_I_1_FINAL_ORDER_2041389.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY SEDA,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
PH-0752 -17-0451 -I-1
DATE: June 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Seda , Aberdeen, Maryland, pro se.
Jennifer Karangelen , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his trial -period termination for lack of jurisdiction.
Seda v. Social Security Administration , MSPB Docket No. PH-0752 -17-0451 -I-1,
Initial Appeal File (IAF), Tab 13, Initial Decision ( 0451 ID) at 6. Specifically,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the administrative judge found that the appellant failed to establish jurisdiction
over his Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) claim because he
failed to allege that his termination was due to his prior military service. Id. The
administrative judge also found that any claims the appellant sought to raise that
his termination was improper or the result of whis tleblower reprisal were
precluded by the doctrine of collateral estoppel. Id. at 6-9. The administrative
judge observed that he addressed those claims in the appellant’s prior appeals, in
which he found a lack of Board jurisdiction under either chapter 7 5 or the
Whistleblower Protection Act. Id. In his petition for review, the appellant
contends for the first time that he did not raise a claim un der USERRA . Seda v.
Social Security Administration , MSPB Docket No. PH-0752 -17-0451 -I-1, Petition
for Review (PFR) File, Tab 4 at 9. He reiterates the whistleblow er reprisal claims
he made in his appeal below and reargues the merits of his January 2006
trial-period termination , contending that the agency denied him due process ,
violated the Family and Medical Leave Act of 1993 (FMLA), and discriminated
and retaliated against him for eq ual employment opportunity activity without
affording him an opportunity to be heard. Id. at 9-25. He also attaches
documents to his petition for review and argues that the agen cy improperly
terminated him under chapter 43 for poor performance. Id. at 21 -23, 27 -183.
¶2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consiste nt with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the r ecord closed. Title 5 of the Code of
3
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner ha s 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).
¶3 As noted above, the appellant states for the first time in his petition for
review that this is not a USERRA appeal. PFR File, Tab 4 at 9. Therefore, we
have not further considered his USERRA claim. For th e following reasons, we
affirm the administrative judge’s findings that the appellant is barred by the
doctrine of collateral estoppel from relitigating his probationary te rmination and
his whistleblower reprisal claims. 0451 ID at 6 -9.
¶4 The Board applies collateral estoppel to determine whether a previous
adjudication of a jurisdictional issue precludes its relitigation. McNeil v.
Department of Defense , 100 M.S.P.R. 146 , ¶ 16 (2005). 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 acti on; (3) the
determination on the issue in the prior action was necessary to the resulting
judgment; and (4) the party against whom the issue preclusion is sought had a full
and fair opportunity to litigate the issue in the prior action. Id., ¶ 15. Collat eral
estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a
jurisdictional determination in a prior decision is afforded collateral estoppel
effect , and the appellant provides no other valid basis of Board jurisdiction.
Hau v. Depa rtment of Homeland Security , 123 M.S.P.R. 620 , ¶ 13 (2016), aff’d
sub nom . Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir.
2017).
¶5 Previously, t he appellant filed an October 19, 2006 appeal of his
probationary termination , which the administra tive judge dismissed for lack of
jurisdiction because the appellant lacked the requisite 1 year of current
continuous service necessary to be an “employee” with adverse action appeal
4
rights to the Board under 5 U.S.C. § 7511 (a)(1). Seda v. Social Security
Administration , MSPB Docket No. PH -0752 -07-0053 -I-1, Initial Decision
(0053 ID) (Jan. 31, 2007). That decision became the Board’s final decision on
whether the appellant met the definition of “employee ” under 5 U.S.C.
§ 7511 (a)(1) when the Board denied the appellant’s subsequent petition for
review. 5 C.F.R. § 1201.113 ; see Seda v. Social Security Administration , MSPB
Docket No. PH -0752 -07-0053 -I-1, Final Order (May 8, 2007).
¶6 Applying the elements of collateral estoppel set forth above, t he
administrative judge correctly determined that the issue of whether the appellant
was an “employee ” under 5 U.S.C. § 7511 is identical to his claims in this appeal,
was actually litigated in the previous action, was necessary to the finding in that
appeal, and the appellant had a full and fair opportunity to litigate the issue . 0451
ID at 8 -9; compare 0053 ID , with IAF, Tabs 1, 3 -4, 12, and PFR File, Tab 1
at 10-25. Moreover, because the same definition of “employee ” applies to the
appellant under chapter s 75 and 43, he also is precluded from appealing his
termination as a performance -based action under chapter 43. PFR File, Tab 4
at 20-22; IAF, Tab 11 at 17, Tab 10 at 97 -99; see 5 U.S.C. §§ 4303 (e), (f)(3) ,
7511(a)(1)(B) (defining thos e preference -eligible, excepted -service appointees
over whom the Board has jurisdiction under chapters 43 and 75) .
¶7 Similarly, the administrative judge correctly determined that the appellant’s
claim of retaliation f or protected activity also was barred by the doctrine of
collateral estoppel. 0451 ID at 6-8. The administrative judge found that the
appellant’s whistleblower reprisal claims in this matter are identical to those he
raised in his prior individual right of action appeal, 0451 ID at 7, which became
the Board’s final decision on October 19, 2017 , when neither party filed a petition
for review of the initial decision , 5 C.F.R. § 1201.113 (a); Seda v. Social Security
Administration , PH -1221 -17-0149 -W-1, Initial Decision (0149 ID) (Sep t. 14,
2017) . The jurisdictional issue was actually litigated, necessary to the finding in
that appeal, and the appellant had a full and fair opportunity to litigate the issue.
5
0451 ID at 8; 0149 ID at 4 -7. Accordingly, we agree with the administrative
judge that the appellant’s whistleblow er reprisal claims are barred by the doctrine
of collateral estoppel.
¶8 With his petition for review, the appellant includes numerous documents,
most of which are in the record below or pre -date the October 26, 2017 initial
decision . PFR File, Tab 4 at 27 -44, 49 , 53-62, 68 -183. Those documents that are
dated after the initial decision rely on information that pre -dates it . Id. at 45-48,
50-52, 60 -67. Under 5 C.F.R. § 1201.115 , the Board generally will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despite the party ’s due
diligence. Avansino v. U.S. Postal Servi ce, 3 M.S.P.R. 211 , 214 (1980) ; see
5 C.F.R. § 1201.114 (b) (explaining that a petition for review should not include
documents that were part of the record below) . Even documents that post -date
the closing of the record below require such a showing of due diligence if, as
here, the information that the documents contain was avail able before the record
closed. 5 C.F.R. § 1201.115 (d). Therefore, we decline to consider these
documents further.
¶9 To the extent that the ap pellant raises issues concerning the agenc y’s
response to his request for accommodation and for leave protected by the FMLA ,
PFR File, Tab 4 at 12 -13, absent an otherwise appealable action, the Board is
without authority to consider the appellant’s claims. E.g., Lua v. U.S. Postal
Service , 87 M.S.P.R. 647 , ¶ 12 (2001) (explaining that the Board will not take
further action on an FMLA claim absent jurisdiction over the underlying
disciplinary action); Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980)
(providing that prohibited personnel practices under 5 U.S.C. § 2302 (b) are not an
independent source of Board jurisdiction), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir.
1982). The appellant’s concerns regarding the agency’s processing of his
term ination, the Board’s processing of his prior appeals, and the Federal courts’
processing of his complaints do not state a basis for review . PFR File, Tab 4 at 2,
6
9, 24; see, e.g. , Ivery v. Department of Transportation , 102 M.S.P.R. 356 , ¶ 13
(2006) (explaining that an attack on the Board’s authority genera lly should be
presented in a direct appeal rather than in a collateral attack in a later
proceeding) ; Curry v. U.S. Postal Service , 52 M.S. P.R. 336 , 339 (1992) ( finding
an administrative judge appropriately gave an appellant’s prior criminal
conviction collateral estoppel effect). Lastly , we find that—contrary to the
appellant’s ass ertion on review, PFR File, Tab 4 at 8—the decision of the U .S.
Court of Appeals for the Federal Circuit in the appellant’s Veterans Employment
Opportunities Act of 1998 appeal, Seda v. Merit Systems Protection Board ,
638 F. App’x 1006 (Fed. Cir . 2016 ); Seda v. Social Security Administration ,
MSPB Docket No. PH-0330 -14-0719 -I-1, Final Order (Aug. 25, 2015), does not
provide Board jurisdiction over this matter.
¶10 Accordingly, we affirm the initial decision dismissing the instant appeal for
lack of jurisdiction.
NOTICE OF APPEAL RIGHTS2
You may obtain review of t his final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and t he rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and car efully follow all
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.
7
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decid e which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an ap pellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receiv es this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national orig in, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. d istrict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, yo u may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request wi th the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew 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
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
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.
Contact information for the courts of appeals can be 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 | SEDA_ANTHONY_PH_0752_17_0451_I_1_FINAL_ORDER_2041389.pdf | 2023-06-15 | null | PH-0752 | NP |
3,023 | https://www.mspb.gov/decisions/nonprecedential/ROSARIO_FABREGAS_JOSE_E_NY_0752_18_0221_I_1_FINAL_ORDER_2041400.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE E. ROSARIO -FABREGAS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
NY-0752 -18-0221 -I-1
DATE: June 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose E. Rosario -Fabregas , San Juan, Puerto Rico, pro se.
Elizabeth Moseley , Jacksonville, 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 and the agency has filed a cross
petition for review of the initial decision, which sustained the appellant’s
removal. For the reasons discussed below, we DENY the appellant’s petition for
review and the agency’s cross petition for review. We AFFIRM the initial
decision, AS MODIFIED to find that the agency proved its insubordination
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are 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
charge and that the insubordination charge supports the appellant’s removal, and
to expand upon the administrative judge’s determination that the appellant failed
to prove any of his affirmative defenses.
BACKGROUND
¶2 The a ppellant most recently held a GS -12 Biologist position in the agency’s
U.S. Army Corp of Engineers, stationed in San Juan, Puerto Rico. Initial Appeal
File (IAF), Tab 1 at 1, Tab 5 at 6. In February 2010, the agency removed him for
misconduct, but the Board reversed on due process grounds in November 2011.
Rosario -Fabregas v. Department of the Army , 122 M.S.P.R. 468 , ¶ 2 (2015),
aff’d , 833 F.3d 1342 (Fed. Cir. 2016). The agency cancelled the appellant’s
removal and restored him to the employment rolls. Id.; Rosario -Fabregas v.
Department of the Army , MSPB Docket No. N Y-0752 -10-0127 -C-1, Compliance
File, Tab 6 at 7, 15.
¶3 Less than a month after the Board issued its decision reversing the
appellant’s removal, he submitted a letter to the agency from his treating
psychiatrist, asking that the agency excuse him from work un til January 2012.
Rosario -Fabregas , 122 M.S.P.R. 468 , ¶ 3; Rosario -Fabregas v. Department of the
Army , MSPB Docket No. NY -0752 -13-0167 -I-1, Initial Appeal File (0167 IAF) ,
Tab 11, Part 1 at 17 of 58. This return -to-work date was continually extended,
first at the appellant’s behest, and then based on the agency’s demands for a
medical release . Rosario -Fabregas , 122 M.S.P.R. 468 , ¶¶ 3 -5. In
November 2012 , the appellant provided a more detailed medical assessment . Id.,
¶ 5. The following day, however, the agency proposed the appellant’s removal
based on the same charges underlying the first removal action, and it placed him
on paid administrative leave.2 Id., ¶ 5. The agency effectuated his removal in
February 2013. Id.
2 The appellant filed an appeal with the Board alleging that his absence between
December 2011 and November 2012 was a constructive suspension. Rosario -Fabregas ,
3
¶4 On appeal of his second removal action, the administrative judge sustained
the agency’s conduct unbecoming, inappropriate use of official time, and
inappropriate use of Government property charges, but not its insubordination
charge. Rosario -Fabregas v. Department of the Army , MSPB Docket No. NY -
0752 -13-0142 -I-2, Final Order, ¶¶ 2 -3 (July 1, 2016). The administrative judge
mitigated the second removal action to a 30 -day suspension, and the Board
affirmed in July 2016. Id., ¶¶ 1, 48. Notably, the Board stated that mitig ation of
the penalty was warranted because, inter alia, the appellant had no prior discipline
and the agency’s most serious charge —insubordination —was not sustained. Id.,
¶¶ 44, 48.
¶5 Although the administrative judge had ordered interim relief from the
second removal action, the agency placed the appellant on paid administrative
leave instead of returning him to the workplace pursuant to 5 U.S.C.
§ 7701 (b)(2)(A)(ii)(II). Rosario -Fabregas , MSPB Dock et No. NY -0752 -13-
0142 -I-2, Petition for Review File, Tab 4 at 27 -28. But after receiving the
Board’s final decision, the agency notified the appellant that his administrative
leave would end, and he would be returned to duty. IAF, Tab 9 at 74 -75. The
events that followed culminated with the agency’s third attempted removal of the
appellant, which is the matter before us in the instant appeal.
¶6 The agency ordered the appellant to provide a medical release prior to his
return -to-work date. Id. at 74. The parties subsequently agreed that the appellant
would first serve his 30 -day suspension and his return -to-work date would be
September 6, 2016. Id. at 51, 69. A week before that scheduled return, the
agency reminded the appellant that he needed to provid e a medical release before
returning to duty. Id. at 55. When his scheduled return -to-duty date arrived, the
appellant began requesting sick and annual leave, which the agency granted
throughout the month of September. Id. at 29 -30, 33, 37.
122 M.S.P.R. 468 , ¶¶ 9 -19. The Board d ismissed that appeal for lack of jurisdiction.
Id., ¶¶ 1, 19.
4
¶7 On September 27, 2016, the appellant provided the agency a note from his
treating psychiatrist. However, instead of releasing the appellant to return to
duty, the psychiatrist stated that the appellant should not return to work until
December 1, 2016. Id. at 40. Ov er the next several months, the psychiatrist
continually pushed the appellant’s return -to-duty date back, ultimately to June 1,
2017. Id. at 42, 44, 46. During this period , the agency approved the appellant’s
requests for leave to cover this lengthy abse nce. Id. at 38, 41, 43, 45, 48.
¶8 On May 4, 2017, the appellant’s supervisor notified him that he was
“expected to report to work” on June 1, 2017. IAF, Tab 7 at 129. She warned
him that his absence from duty could not continue indefinitely and that he wo uld
face removal if he did not become available for duty on a regular basis. Id.
at 129-30. In anticipation of the approaching June 1, 2017 return -to-duty date,
she directed the appellant to provide a medical release no later than May 25,
2017. Id. at 129. However, the appellant was having difficulty scheduling an
evaluation, so his supervisor extended the release deadline to June 21, 2017, with
a July 5, 2017 return -to-work date. Id. at 70 -71.
¶9 The June 21, 2017 deadline passed without the appel lant submitting a
medical release, and around the same time, the appellant exhausted his accrued
leave. Id. at 136 -37. On June 22, 2017, the appellant requested advance sick or
annual leave to cover his continued absence, but his supervisor denied the re quest
because she had no reasonable assurance that the appellant would return to duty.
Id. at 136, 138 -40. Nevertheless, she approved the appellant’s continued absence
in a leave without pay (LWOP) status , while warning that if he did not report for
duty on July 5, 2017, with a medical release, he would be considered absent
without leave ( AWOL ). Id. at 136 -37. The appellant did not submit a release or
report for duty by July 5, 2017, and the agency began carrying him in AWOL
status. Id. at 136, 188.
¶10 On July 21, 2017, the appellant notified the agency that he had a July 31,
2017 appointment with another psychiatrist. Id. at 226 -27. The appellant’s
5
supervisor granted him approved LWOP pending the results of the July 31, 2017
evaluation, but she warned him that he must submit the psychiatrist’s opinion on
his ability to work no later than August 1, 2017. Id. at 225. On July 27, 2017,
this psychiatrist notified the appellant that he would not be handling his case. Id.
at 230. The appellant did not su bmit the required documentation, and he was
again placed in an AWOL status. IAF, Tab 8 at 8, 102, 105.
¶11 On August 22, 2017, the appellant’s supervisor proposed his removal based
on charges of AWOL and excessive absence. IAF, Tab 6 at 250 -58. In the
mean time, on June 15 and August 24, 2017, the appellant’s supervisor issued him
instructions in response to what the agency perceived were harassing emails.
IAF, Tab 5 at 103, Tab 6 at 8 -9. Specifically, she instructed him not to
communicate directly with hi s prior supervisor and not to send “email blasts.”
IAF, Tab 6 at 8 -9. During the period for responding to his proposed removal, the
appellant sent multiple emails that his supervisor considered to be in violation of
these instructions . IAF, Tab 5 at 103-04, 120 -39, Tab 6 at 9. As a result, his
supervisor rescinded the pending proposal and issued a new one, dated
October 11, 2017, which included an additional charge of insubordination. IAF,
Tab 5 at 69 -86. The proposal stated tha t any one of the charge s would warrant
the appellant’s removal. Id. at 75 -84. After the appellant responded, the deciding
official upheld all the charges and removed the appellant effective August 24,
2018. Id. at 6-13.
¶12 The appellant filed a Board appeal, contesting the merits of this third
removal action and raising affirmative defenses of whistleblower retaliation and
discrimination based on disability and national origin. IAF, Tab 1 at 3 -5, Tab 10,
Tab 15 at 2. He wa ived his right to a hearing. IAF, Tab 1 at 2. The
administrative judge developed the record and issued an initial decision affirming
the appellant’s removal. IAF, Tab 37, Initial Decision (ID). She sustained the
AWOL and excessive absences charges, but she did not sustain the
insubordination charge. ID at 14 -16. She also concluded that the appellant failed
6
to prove his affirmative defenses. ID at 17 -19. Finally, she found that the
removal penalty was reasonable for the sustained charges. ID at 19.
¶13 The appellant has filed a petition for review, challenging numerous aspects
of the initial decision. Petition for Review (PFR) File, Tab 1. The agency has
filed a response and cross petition for review, challenging the administrative
judge’s findings abo ut its insubordination charge. PFR File, Tab 3. The
appellant has responded to the agency’s cross petition for review. PFR File,
Tab 5.
ANALYSIS
The administrative judge erred by not sustaining the charge of insubordination.
¶14 Again, the agency has challe nged the administrative judge’s conclusion that
its insubordination charge could not be sustained. PFR File, Tab 3 at 5, 11 -16.
For the reasons that follow, we sustain the charge and modify the initial decision
accordingly .
¶15 Insubordination is the willful and intentional refusal to obey an authorized
order of a superior officer, which the officer is entitled to have obeyed. Walker v.
Department of the Army , 102 M.S.P.R. 474 , ¶ 8 (2006) . Here, the agency’s
insubordination charge consisted of two specifications. IAF, Tab 5 at 8, 81 -84.
The first stemmed from an instruction that the appellant cease all communication
with his former su pervisor at work. According to the agency, the appellant was
insubordinate when he subsequently sent mass emails that included his former
supervisor as a recipient on August 24 and September 1, 2017, and by sending a
more individualized email to his forme r supervisor on September 1, 2017. Id.
at 83. The second specification stemmed from an instruction that the appellant
cease sending mass emails without prior approval. Id. at 83 -84. According to the
agency, the appellant was insubordinate because he se nt the September 1, 2017
mass email to thousands of employees. Id.
7
¶16 The appellant’s response to the proposed removal did not substantively
address his supervisor’s orders or his alleged insubordination regarding the same.
Id. at 57 -68. Then, during adjud ication of this appeal, the appellant disputed the
charge without providing any substantive explanation, except to claim that he was
exercising his right to free speech or engaging in protected whistleblowing.3 E.g.,
IAF, Tab 1 at 5, Tab 11 at 16 -17, Tab 36 at 10 -11; PFR File, Tab 5 at 19 -21. As
such, it seems that the following facts, which are supported by the agency’s
documentary submissions, are not materially disputed.
¶17 On June 15, 2017, a former supervisor of the appellant’s contacted the
appellant’s current supervisor and an agency attorney, complaining that the
appellant had been harassing him via email. IAF, Tab 5 at 147. This former
supervisor asked for a plan of action to cease the harassment. Id. He also
included the appellant’s most recent, rambling message. Id. Among other things,
this message from the appellant to his former supervisor refer red to matters from
many years earlier; describe d his former supervisor as not “us[ing] [his] brain”;
claim ed that the former supervisor had harassed the appellant all those years ago;
and denie d having harassed his former supervisor. Id. Later that day, the
appellant’s current supervisor instructed the appellant to cease all contact with his
former supervisor at work. IAF, Tab 6 at 8. His current supervisor further
indicated that the appellant should send communications to her, as an
intermediary, if he ever had an official need to communicate with his former
supervisor in the future. Id. In a response also dated the same date, the appellant
acknowledged the instruction, indicating that he would comply. Id. at 15.
3 Although the appellant generally referred to his emails as protected whistleblowing,
he has not provided much of an explanation. He implicates only the first of his mass
emails —the one that led to an order that he not send out any more mass emails without
permission —in making this claim. PFR File, Tab 5 at 19 (referencing IAF, Tab 6 at 9).
To the extent that the appellant is presenting a whistleblower reprisal claim, we address
it below in our discussion of the appellant’s whistleblower reprisal affirmative defense.
8
¶18 On August 24, 2017, just days after his proposed removal for AWOL and
excessive absences that would eventually be replaced with one that added an
insubordination charge, the appellant sent an email from a personal account to a
couple of agency distribution lists, which included his former supervisor and
thousands of other employees.4 IAF, Tab 5 at 103, Tab 6 at 9. This email is
rambling and diffi cult to understand but asserts various improprieties on the part
of the agency, at least some of which were related to his proposed removal. IAF,
Tab 6 at 9. For example, the email describes unnamed officials responsible for
his removal as a “clan of rac ists,” while summarily stating that the agency
“discriminates against Hispanics” and had “hid[den] felonies.” Id. The
appellant’s current supervisor immediately responded to the appellant, directing
him to not send “district wide, regulatory wide, or any other email blasts to
[agency] employees without [her] approval.” Id. The appellant replied with
another rambling email in which he claimed that his supervisor could not force
him to keep silent, but she could facilitate a large financial lump sum settl ement,
equivalent to 6 years of “[f]ront pay,” so that he could retire with 35 years of pay
or service . Id. at 244 -45.
¶19 On September 1, 2017, the appellant once again sent an email to agency
distribution lists, which included his former supervisor and thou sands of other
employees. IAF, Tab 5 at 120, Tab 6 at 11 -12. This email was similarly
rambling and indicated that the email included an attachment related to one of his
prior appeals, for the purpose of showing how prior charges against him had been
4 The record includes another email from the appellant, on the same date, addressed to
about a dozen individuals, including the appellant’s former supervisor. IAF, Tab 5
at 146. The email contains an attachment but no body text. Id. This appears to be
another instance of the appellant defying the order to cease communicating with his
former supervisor. However, while the email is referenced in the general background
portion o f the proposal to remove the appellant, id. at 73, and the background portion
specific to the insubordination charge, id. at 82, it is not specifically referenced within
the accompanying specifications, id. at 83 -84. Under the circumstances, we will not
consider this additional email from the appellant to his former supervisor.
9
“ann ihilate[ed].”5 Id. That same day, the appellant also sent a separate email to
his former supervisor and just one other employee, with the subject line
indicating that he was attaching records, and body text that merely stated,
“gREETINGS.”6 IAF, Tab 5 a t 117.
¶20 The administrative judge found that the insubordination charge failed
because the agency’s orders to the appellant were improper. ID at 16. She
reasoned , citing Smith v. General Services Administration , 930 F.3d 1359 (Fed.
Cir. 2019), that the orders were overly broad because they did not merely direct
the appellant to refrain from making false or offensive statements. ID at 16 . We
disagree.
¶21 An agency charging an employee with failure to follow instructions or
insubordination generally must show that the instructions were “proper.”
Hamilton v. U.S. Postal Service , 71 M.S.P.R. 547 , 555 -56 (1996). The court in
Smith suggested that an agency’s instruction that an appellant not communicate
with ag ency officials absent prior supervisory approval “may independently
violate the Whistleblower Protection Act.” 930 F.3d at 1362 -63, 1366 n.2. It
reasoned that such an instruction was a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A)(xi). Smith , 930 F.3d at 1366 n.2 . Under
section 2302(a)(2)(A)(xi) , the definition of “personnel action” includes “t he
implementation or enforcement of any nondisclosure policy, form, or agreement .”
5 It is not apparent whether the attachment —which the text of the email specifically
referenced —was included in the record or even available to all recipients of the
appellant’s email message, which he sent from a personal email account, given the
agency’s systems for protecting against potentially harmful files. IAF, Tab 6 at 11 -12.
But the surrounding circumstances do suggest that the appellant included an attachment
in this email message. Id.
6 Again, it is not apparent whether the attachment was inclu ded in the record or even
available to the recipients of the appellant’s email message, which he sent from a
personal email account. IAF, Tab 5 at 117. But again, the surrounding circumstances
do suggest that the appellant included an attachment in this email message. Id.
10
¶22 This case is disti nguishable from Smith because the instruction at issue in
Smith was motivated by the employee’s prior protected disclosures . 930 F.3d
at 1361 -63, 1366 n.2. In other words, the instruction at issue was a nondisclosure
instruction . Unlike the employee in Smith , the appellant did not prove that he
made a protected disclosure in connection with any of the emails that prompted,
or followed, his supervisor’s June 15 and August 24, 2017 instructions regarding
his communications.7 Therefore, he has not establis hed he is entitled to
corrective action in connection with these instructions. See Alarid v. Department
of the Army , 122 M.S.P.R . 600 , ¶¶ 12 -13 (2015).
¶23 However , it is also a prohibited personnel practice to implement or enforce
“any nondisclo sure policy, form, or agreement ” unless it contains specific
language regarding, among other matters, an employee’s continued right to make
protected disclosures and engage in protected activities , and does not prohibit
disclosures made to certain entities. 5 U.S.C. § 2302 (b)(13) . Therefore, we have
considered whether the communication restrictions were improper because they
constituted such a prohibited personnel practice.8 We answer this question in the
negative .
¶24 Unlike the c ircumstances in Smith , there is little reason to question the
motivations for the instructions at issue , and the agency did not seek to prevent
disclosures . Further, the instructions were not overly broad . In Smith , an agency
instructed the employee not to have any communications with upper level
managers without the approval of his first -level supervisor. Smith , 930 F.3d
at 1362 . The instructions at issue here did not curtail the appellant’s ability to
contact individ uals within or outside his chain o f command . Further, the
instructions were narrowly tailored to concerns raised by his prior emails.
7 The content of these emails are further analyzed below in connection with the
appellant’s whistleblower reprisal affirmative defense.
8 We do not decide here whether an instruction is a policy, form, or agreement within
the meaning of 5 U.S.C. § 2302 (b)(13).
11
¶25 To recall, the appellant was an employee of the agency, but he had not been
in a duty status, performing work, for years. Yet the appellant was sending
accusatory messages to his former supervisor, which the former supervisor
understandably found unwelcome. The appellant was also sending mass email
messages to thousands of agency employees about his own personal disputes with
the agency. Even if the mes sages could be read and disposed of in a brief amount
of time, that time must be multiplied by the thousands of recipients to account for
the burden it placed on agency operations.9 We find the resulting instructions
from the appellant’s current superviso r to cease direct communication with his
former supervisor and cease sending mass emails were appropriate. See Lentine
v. Department of the Treasury , 94 M.S.P.R. 676 , ¶¶ 2, 5 , 15 (2003) (sustaining a
failure to follow a dire ct order charge and removal of an employee for emailing
another employee after an explicit order to cease such contact). We disagree with
the administrative judge’s finding to the contrary .
¶26 Having determined the facts surrounding the alleged insubordination and
the propriety of the underlying orders to the appellant, we now turn to the final
element of the agency’s burden —proof of intent. Parbs v. U.S. Postal Service ,
107 M.S.P.R. 559 , ¶ 13 (2007) , aff’d per curia m, 301 F. App’x 923 (Fed. Cir.
2008) . Intent is a state of mind that is ge nerally proven by circumstantial
evidence in the context of an insubordination charge. Parbs , 107 M.S.P.R. 559 ,
¶ 13. In consider ing whether the agency has proven intent, the Board must
examine the totality of the circumstances. Id.
9 In response to emails the appellant sent on August 24 and September 1, 2017, an
employee wrote to the appellant’s supervisor that they were “upsetting and offensive for
[him],” because it alleged that the employee and his sister had been hired and promoted
illegally, and accused coworkers and supervisors of “unethical behavior” and “wrongful
acts against [the appellant] .” IAF, Tab 5 at 106. A note from a different agency
official contained in the record reflects that “several employees expressed concern
regarding” emails he sent on August 24 and September 1, 2017, and that the official
responded by sending an email message reminding employees “of the measures they can
take to assist with security and safety in the workplace.” IAF, Tab 6 at 249.
12
¶27 Here, we find that the record supports a finding of intent for the agency’s
first specification and its allegation about the September 1 , 2017 email that the
appellant sent to his former supervisor and one other agency official. IAF, Tab 5
at 117. The agency’s order was clear, and the appellant acknowledged receipt of
that order, yet he unambiguously defied the order just weeks later. IAF, Tab 5
at 117, Tab 6 at 8, 15. The appellant has not substantively explained his actions
in any way that would negate what appears to be his intentional defiance of the
order to stop contacting his former supervisor. See Parbs , 107 M.S.P.R. 559 ,
¶ 20 (sustaining an insubordination charge whe n the appellant did not offer
significant contrary proof to rebut the agency’s circumstantial evidence) ;
Redfearn v. Department of Labor , 58 M.S.P.R. 307 , 312 -13 (1993) (finding the
intent element proven for an insubordination charge wh en the agency showed that
an appellant was given instructions she did not follow and the appellant failed to
offer any explanation such as impossibility or lack of knowledge).
¶28 For the other emails referenced in this specification, the August 24 and
Septemb er 1, 2017 mass emails, it is plausible that the appellant did not realize
the distribution lists he used included his former supervisor. See IAF, Tab 5
at 103, Tab 6 at 9, 11 -12. But that explanation is not one the appellant has
presented. As previously stated, he has offered virtually no defense to the
insubordination charge, except to summarily claim that he was exercising his
right to free speech.10 Therefore, we also find it more likely true than untrue that
10 Below, the appellant only briefly alluded to his constitutional right to free speech,
and he only did so in the context of extensive filings that were difficult to understand.
IAF, Tab 11 at 16 -17, Tab 36 at 11. Because the administrative judge did not explicitly
address this issue, we will do so now .
To determine whether employee speech is protected by the First Amendment, the Board
must determine: (1) whether the speech addr essed a matter of public concern and, if so,
(2) whether the agency’s interest in promoting the efficiency of the service outweighs
the employee’s interest as a citizen. Smith v. Department of Transportation ,
106 M.S.P.R. 59 , ¶ 46 (2007). To illustrate, the Board has explained that a discussion
regarding racial relations or discrimination is a matter of p ublic concern entitled to the
full protection of the First Amendment but an equal employment opportunity matter that
13
the appellant intentionally defied the order not to contact his former supervisor
when he sent the mass emails with the former supervisor as one of the recipients.
See Parbs , 107 M.S.P.R. 559 , ¶ 20; Redfearn , 58 M.S.P.R. at 312-13.
¶29 Lastly, we find that the record also supports a finding of intent for the
agency’s second specif ication and its allegation about the mass email sent on
September 1 , 2017 . The corresponding order from just days before was
unambiguous, the appellant responded by implying that he would not comply, and
then he defied the order. IAF, Tab 6 at 9, 11 -12, 244-45. Once more, the
appellant has not substantively explained his actions in any way that would
negate what appears to be his intentional defiance of a valid order to stop sending
mass emails without prior approval . See Parbs , 107 M.S.P.R. 559 , ¶ 20;
Redfearn , 58 M.S.P.R. at 312-13.
¶30 In sum, we find that the agency has met its burden and we therefore sustain
the insubordination charge. We reverse the administrative judge’s contrary
conclusion.
We decline to rule on the agency’s AWOL and excessive absences charges.
¶31 The agency’s AWOL charge contained 59 specifications —one for each day
that the appellant was absent without authoriz ation between July 5 and October 6,
2017. IAF, Tab 5 at 75 -80. Its excessive absence charge covered all
267 workdays for which the appellant was absent from September 6, 2016,
is personal in nature and limited to the complainant’s own situation is not a matter of
public concern. Id., ¶ 47.
In this case, the ema ils underlying the appellant’s insubordination charge implicate d his
own personal grievances rather than a ny matter of public concern. IAF, Tab 5 at 117,
120. For that reason alone, the appellant’s claim fails. But even if his emails could be
construed as touching on a matter of public concern, we would find that the agency’s
interest outweighed the appellant’s. The agency’s interest was to stop the appellant
from contacting his former supervisor, who considered the appellant’s contact s
harassing, and t o stop the appellant from interrupting the work of thousands of
employees with mass emails. The agency did not altogether prohibit the appellant from
voicing his interests as an employee or citizen.
14
through October 6, 2017. Id. at 80 . The administrative judge found that the
agency proved both charges. ID at 14 -16.
¶32 On review, the appellant asserts that he was entitled to leave under the
Family and Medical Leave Act of 1993 (FMLA) during the periods at issue in the
AWOL and excessive absence charges. PFR File, Tab 1 at 5 -8, 17. The appellant
raised this issue below, but the administrative judge did not address the matter in
her initial decision. IAF, Tab 1 at 5, Tab 13 at 10 -11.
¶33 An agency bears the burden of proving that it complied with the FMLA as
part of its overall b urden of proving a leave -based charge. Somuk v. Department
of the Navy , 117 M.S.P.R. 18 , ¶ 11 (2011). Like most civil service employees,
the appellant was covered under Title II of the FMLA. IAF, Tab 5 at 6; FMLA,
Pub. L. No. 103-3, § 201(a)(1), 107 Stat. 6, 19 (codified , in pertinent part , at
5 U.S.C. § 6381 (1)(A) , and incorporating t he definitions of an “employee” under
Title II of the FMLA from 5 U.S.C. § 6301 (2)); 5 C.F.R. § 630.1201 (b)(1)(i)(A) ;
see gener ally 5 C.F.R. part 630, subpart L ( containing the implementing
regulations of the Office of Personnel Management (OPM) ). Under FMLA
Title II, an eligible employee is “entitled to a total of 12 administrative
workweeks of leave during any 12 -month period ” for, as relevant here, “a serious
health condition that makes the employee unable to perform the functions of the
employee’s position.” 5 U.S.C. § 6382 (a)(1) (D); Landahl v. Department of
Commerce , 83 M.S.P.R. 40 , ¶ 8 (1999); see 5 C.F.R. §§ 610.102 , 630.1202
(defining an administrative workweek for purposes of FMLA, in relevant part, as
an agency -designated period consisting of “7 consecutive 24 hour periods”).
¶34 This case presents an issue regarding whether the agency should have
designated a portion of the ap pellant’s leave as FMLA -protected even though he
did not invoke FMLA -protected leave. The Board has previously held that, even
if an employee does not specifically mention the FMLA when requesting leave,
the requirement to invoke the FMLA may be satisfied as long as the employee
presents the agency with sufficient evidence to trigger consideration of his
15
absence under the FMLA. Bowen v. Department of the Navy , 112 M.S.P.R. 607 ,
¶ 8 (2009), aff’d per curiam , 402 F. App’x 521 (Fed. Cir. 2010). However, this
holding appears to be contrary to OPM’s FMLA regulations. Specifically,
section 630.1203(b) provides that “[a]n employee must invoke his or her
entitlement to FMLA leave” and generally may not invoke that entitlement
retroactively. Section 630.1203(h) also states that “[a]n agency may not put an
employee on [FMLA] leave and may not subtract leave from an em ployee’s
entitlement to [FMLA leave] unless the agency has obtained confirmation from
the employee of his or her intent to invoke entitlement to [FMLA leave].” OPM
explained these provisions by stating that, “The requirement that an employee
must initiate action to take FMLA leave is consistent with all other Federal leave
policies and programs in that the employee is responsible for requesting leave or
other time off from work.” Family and Medical Leave, 65 Fed. Reg. 26,483 -01,
26,483, 26,486 -87 (May 8, 2000) (codified as amended, in relevant part, at
5 C.F.R. § 630.1203 (b), (h)).
¶35 The circumstances of this case suggest that the appellant’s continued
absence was related to a serious he alth condition. See supra ¶¶ 6-10. But we
found no indication that the appellant invoked FMLA protection for his leave ,
even though the numerous leave slips he completed during the relevant period
contained a space for him to do so. IAF, Tab 9 at 29 -30, 37-38, 41, 43, 45, 47 -50.
This seems to be true of both the 42 weeks of leave the agency granted for his
mental health condition leading up to his AWOL, as well as the period at issue in
the AWOL and excessive absence charges, which amounts to less than the
12 weeks contemplated by the FMLA. So, the facts before us present a n umber of
questions, including (1 ) whether Bowen remains good law, given the seemingly
contradictory regulatory provisions , (2) whether the agency could and sh ould
have afforded the appellant FMLA leave for any period, despite him not invoking
FMLA when specifically prompted with an opportunit y to do just that and, if so,
(3) for what period should that FMLA leave have applied to his absence.
16
¶36 At this time, we decline to rule on these or related questions. We also
decline to address the appellant’s other arguments contesting these charges. PFR
File, Tab 1 at 10 -11, 17, 19, 21 -22. These include arguments that he should have
been granted advanced leave, his absence was not a burden to the agency, the
agency did not need to fill his position, and his approved absences did not
continue beyond a reasonable time. Id. We need not reach these issues because
we find that the agency’s insubordination charge, alone, supports the appellant’s
removal. Infra ¶¶ 55-58; see, e.g. , Alvarado v. Department of the Air Force ,
103 M.S.P.R. 1 , ¶¶ 2, 40 -41 (2006) (finding that the p enalty of removal was
reasonable based on a charge of insubordinate defiance of authority, so it was
unnecessary to address the additional charge of misuse of Government
equipment) , aff’d , 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d , 490 F. App’x 932
(10th Cir. 2012) ; Luciano v. Department of the Treasury , 88 M.S.P.R. 335 ,
¶¶ 3, 10-13, 23 (2001) (finding it unnecessary to determine whether an
administrative judge erred in failing to sustain all of the specifications supporting
an agency’s insubordination charge because the sustained specifications and the
proven charge of AWOL warranted the appellant’s removal ), aff’d per curi am,
30 F. App’x 973 (Fed. Cir. 2002).
The appellant did not prove his affirmative defense of disability discrimination.
¶37 The appellant argued below that his removal was the product of disability
discrimination. IAF, Tab 1 at 5, Tab 11 at 12, 15. Before we turn to the
administrative judge’s findings and the appellant’s arguments on review, it is
useful to recount some of the most salient facts.
¶38 The appellant began taking extensive leave in 2012, consistent with his
psychiatrist’s letters about his conditi on and the need for time off. Supra ¶ 3;
e.g., 0167 IAF, Tab 11, Part 1 at 32, 38 of 58. Among other things, these letters
described the appellant as suffering from a deteriorating psychiatric condition that
was, at times, totally disabling and consistin g of aggressive episodes. 0167 IAF,
Tab 11, Part 2 at 13. Any disability -related inquiry by an employer must be
17
“shown to be job -related and consistent with business necessity.” 42 U.S.C.
§ 12112(d)(4)(A); Archerda v. Department of Defense , 121 M.S.P.R. 314 , ¶ 30
(2014). The Board previously found, in Rosario -Fabregas , 122 M.S.P.R. 468 ,
¶¶ 14-17, that the agency’s requests for a medical release in 2012 met this
standard and were therefore permissible. The Board explained that the agency
had a reasonable belief that the appellant’s ability to perform the essential
functions of his position was impaired, and also reasonably believed that he posed
a direct threat due to his condition. Id. In November 2012, the appellant’s
psychiatrist indicated that he could attempt to return to a part -time schedule on a
trial basis for 3 weeks, but the agency deemed his opinion both contradictory and
insufficient in that it failed to explicitly address the essential functions of the
appellant’s position. 0167 IAF, Tab 11, Part 1 at 8-9 of 58, Part 4 at 4-7 of 27.
In the days that followed , the agency took the removal action that the Board later
mitigate d to a suspension. Supra ¶¶ 3-4.
¶39 While preparing for the appellant’s return to work in 2016, after the Board
mitigated his removal, the agency requested a release from his medical provider.
Supra ¶ 6. Although t he Board’s decision to mitigate the appellant’s prior
removal did not address the sufficiency of the appellant’s November 2012
medical update, we find that it did not suffice for purposes of the attempted return
to duty in 2016. This is because, among other things, the November 2012
medical update was several years old and had merely suggested that the appellant
was, at that point, ready for a brief trial run at working part -time. 0167 IAF,
Tab 11, Part 4 at 4 -7 of 27. The November 2012 medical update was also lacking
in terms of the appellant’s ability to perform the essential functions of his
position. Id. It instead described the appellant in general terms such as the
appellant being able to understand and carry out only “lowest complexity
instructions.” Id. at 7 of 27.
¶40 The appellant did not immediately submit the medical release requested in
2016 , nor did he return to work. Instead, the appellant began requesting
18
extensive annual and sick leave. Id. When the appellant did eventually submit a
medical note from his provider, it indicated that the appellant’s condition would
not allow his return to work until at least June 2017. Supra ¶ 7; IAF, Tab 9 at 46.
As that date neared and in the months that followed, the agency unsuccessfully
tried to obtain verification that the appellant was medically cleared for work
before eventually taking t he removal action before us. Supra ¶¶ 8-11.
¶41 In her initial decision, the administrative judge found that the appellant’s
disability discrimination claim appeared to be based on the agency’s requirement
that he provide a medical release to return to work , but the request was proper .
ID at 17. On petition for review, the appellant disputes the administrative judge’s
finding, arguing that agency should not have required a medical release because
its safety concerns were unfounded. PFR File, Tab 1 at 8 -9, 22.
¶42 The appellant has not alleged that he provided any updated medical
documentation to the agency that might have ameliorated the agency’s prior
concerns. Nor has he presented any such evidence before the Board. The
agency’s longstanding and justified concerns about the appellant’s ability to
safely and effectively perform the essential functions of his position and his
previously diagnosed potential for aggression would have been exacerbated by his
submission of medical notes indicating he “should not return to work .” IAF,
Tab 9 at 40, 42, 44, 46. The notes provided no explanation suggesting the
appellant had recovered. Id. The only specific information the appellant’s
psychiatrist provided for his continued absence was that the appellant was
“anxio us,” his capacity to concentrate was decreased, and he had “worry related
to several issues arising in the agency with his return to work.” Id. at 46. Thus,
the appellant’s own medical evidence suggested he had not improved, and may
have deteriorated.
¶43 On review, t he appellant also argues that the agency committed disability
discrimination by failing to offer him a reasonable accommodation for his
condition. PFR File, Tab 1 at 8 -9, 15 -16, 20. The appellant raised this argument
19
below, but the administra tive judge did not address it. IAF, Tab 11 at 8, 11 -12,
14-16, 22 -23, Tab 36 at 12 -13. We have therefore considered the argument but
find it unavailing. As the Board previously explained in his prior appeal, a
failure to accommodate claim will fail if a n employee ’s refusal to engage in the
interactive process prevented the agency from identifying a reasonable
accommodation . Rosario -Fabregas , 122 M.S.P.R. 468 , ¶ 18; see Herb L. v. U.S.
Postal Service , EEOC Appeal No. 0120140330, 2016 WL 4492212 , at *7
(Aug. 17, 2016) (finding that a complainant who did not provide requested
documentation regarding the “parameters” of his ne ed to rest his hip did not
demonstrate that he was entitled to a reasonable accommodation) . Here, the
appellant requested an accommodation in the form of part -time work in
February 2017, at the same time that his psychiatrist said he was unable to work.
IAF, Tab 8 at 190 , Tab 9 at 44, 46 . The agency promptly and repeatedly
requested supportive medical documentation that the appellant never provided.
IAF, Tab 6 at 35 -36, 237, Tab 8 at 188-90, 201 -02, 244 -45. The agency’s request
was reasonable and appropriate under the circumstances because whether or how
a modification to his work schedule would have enabled the appellant to perform
his duties is not obvious and had not been addressed in any of the documentation
that the appellant ha d previously provided. See White v. Department of Veterans
Affairs , 120 M.S.P.R. 405 , ¶ 14 (2013) . Therefore, the appellant’s failu re to
engage precludes him from prevailing on this failure to accommodate claim .
¶44 The appellant separately argues that the agency should have accommodated
him by providing him additional leave. PFR File, Tab 1 at 9. The use of accrued
paid leave or unpaid leave can be a form of reasonable accommodation. Willa B.
v. Department of Veterans Affairs , EEOC Appeal No. 2021000628, 2022 WL
1631370 , at *5 (Apr. 27, 2022). However, “LWOP for an indefinite period of
time with absolutely no indication that one will or could return is not an
accommodation contemplated under the Rehabilitation Act.” Hilda H. v.
Department of Veterans Affairs , EEOC Appeal No. 0120162443, 2018 WL
20
1392246 , at *4 (Mar. 6, 2018), req. to reconsider den ied, EEOC Request
No. 0520180318 , 2018 WL 3584199 (July 3, 2018). Before proposing his
removal, the agency already had provided the appellant with nearly 1 full year of
approved leave while it waited for some indication that he might be able to return
to duty. We find that the appellant has not shown that the agency violated his
rights by declining to continue with this course of action.
¶45 The appellant also argues that the agency removed him in retaliation for
opposing disability discrimination, i.e., for refusing to sign what he believed to be
an overly broad release for the agency -appointed psychiatrist to obtain his health
records. PFR File, Tab 1 at 11 -14, 19 -20. However, because the appellant did
not raise this argument below, and it is not based on previously unavailable
evidence, we decline to consider it . See Clay v. Department of the Army ,
123 M.S.P.R. 245 , ¶ 6 (2016).
The appellant did not prove his affirmative defense of discrimination based on
national origin.
¶46 National origin discrimination is prohibited under Title VII of the Civil
Rights Act of 1964. 42 U.S.C. § 2000e -16(a). To prove an affirmative defense of
national origin discrimination, an appellant must prove that national origin was a
motivating factor in the contested personnel action. Pridgen v. Office of
Manag ement and Budget , 2022 MSPB 31 , ¶¶ 20 -21. Such a showing may entitle
an appellant to injunctive or other “forward looking reli ef.” Id., ¶ 22. To obtain
full relief, including status quo ante relief, compensatory damages, or other forms
of relief related to the end result of an employment decision, an appellant must
prove that the prohibited consideration “was a but -for cause of the employment
outcome.” Id. (quoting Babb v. Wilkie , 140 S. Ct. 1168, 1171, 1177 -78).
¶47 In this case, the administrative judge found that the appellant was “of the
view that the agency discriminated against him because he is Hispanic,” but that
the appel lant did not present any evidence to support his claim. ID at 17. The
appellant dispute s this finding on review, arguing that his 2010 removal without
21
due process constitutes evidence of national origin discrimination. PFR File,
Tab 1 at 15, 23. We fin d, however, that the procedural defects in the agency’s
2010 removal action are not probative of whether the appellant’s 2018 removal
was motivated by national origin discrimination. We agree with the
administrative judge that the appellant has presented no evidence to support this
affirmative defense.11 ID at 17.
The appellant did not prove his affirmative defense of whistleblower reprisal.
¶48 In adverse action appeal, an appellant’s claim of reprisal for making a
protected disclosure under 5 U.S.C. § 2302 (b)(8), or engaging in protected
activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), is analyzed under the
burden -shifting scheme set forth in 5 U.S.C. § 1221 (e). Alarid , 122 M.S.P.R.
600, ¶ 12. The appellant must first prove that his disclosure or activity was
protected under sections 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). Alarid ,
122 M.S.P.R. 600 , ¶¶ 12 -13. He must next prove that his protected disclosure or
activity was a contributing factor in the challenged personnel action. Id. If the
appellant makes both of these showings by preponderant evidence, 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 disclosure or
activity. Id., ¶ 14.
¶49 In this case, the appellant argued below that his removal was in retaliation
for protected whistleblowing, but the grounds of his claim were unclear. IAF,
Tab 11 at 4, 23, 30, 32. The administrative judge notified the appellant of how to
prove an affirmative defense of whistleblower retaliation, IAF, Tab 17 at 2-5, but
the appellant’s subsequent pleadings did little to clarify the matter. In any event,
the administrative judge construe d the appellant’s defense as pertaining to the
series of emails at issue in the insubordination charge , i.e., the ones that led to his
11 To the extent that the appellant’s claim could be cons trued as an affirmative defense
of race discrimination, which is prohibited under the same statute, the same analysis
would apply. See Pridgen , 2022 MSPB 31 , ¶¶ 20 -22.
22
supervisor’s instructions and the ones that violated those instructions . ID at 19;
e.g., IAF, Tab 5 at 120 -39, Tab 6 at 9. The administrative judge found that the
appellant provided no evidence in support of the allegations contained in those
emails and that he therefore failed to show that that he had a reasonable belief
that either of the emails evidenced Government wrongdoing. ID at 19.
¶50 On petition for review, the appellant argues that the agency was overly
lenient with management officials who committed misconduct similar to that for
which the appellant had been removed in 2010. PFR File, Tab 1 at 22 -23. In
support of his contention , the appellant cites to a discovery response that the
agency provided him in connection with his second remo val appeal. Id. at 23;
IAF, Tab 6 at 104 -10. The appellant’s argument provides no basis to disturb the
initial decision.
¶51 A protected whistleblower disclosure is a disclosure that an appellant
reasonably believes evidences a violation of any law, rule, o r regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Smith v. Department of the Army ,
2022 MSPB 4 , ¶ 14. A reasonable belief exists if a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
appellant could reasonably conclude that the actions of the Government evidence
one of the categories of wrongdo ing listed in section 2302(b)(8)(A). Id. The
appellant need not prove that the matter disclosed actually established one of the
types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant
must show that the matter disclosed was one whic h a reasonable person in his
position would believe evidenced any of the situations specified in 5 U.S.C.
§ 2302 (b)(8). Id.
¶52 In his August 24, 2017 email, the appellant accused the agency of abus ing
its authority by allowing certain higher -level management officials accused of
misconduct to separate from service with a clean record. IAF, Tab 6 at 9. The
agency’s discovery response, however, indicates that one of the two named
23
officials resigned in the face of a notice of proposed removal and that the other
was disciplined with a letter of reprimand and continued his employment at the
agency. Id. at 104 -05. Therefore, even having considered the agency’s discovery
response, we agree with the admi nistrative judge that the appellant has provided
no evidence to support the allegations contained in this email. ID at 19.
¶53 We separately note that the appellant’s response to the agency’s cross
petition for review seems to present another theory about his whistleblower
retaliation claim. The appellant suggests that his August 24, 2017 mass email
was also protected whistleblowing because it contained allegations of
discrimination. PFR File, Tab 5 at 19; IAF, Tab 6 at 9. We need not consider
this claim be cause a reply is limited to factual and legal issues raised by another
party in response to the petition for review and may not raise new allegations of
error. 5 C.F.R. § 1201.114 (a)(4) . In any event, even if we were to consider this
argument , we would not grant the appellant’s petition for review. Although the
appellant’s email message summarily assert ed that a certain agency office
discriminate d against Hispanics, IAF, Tab 6 at 9, this allegation is not a protected
disclosure, see Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 6
(2016) (recognizing t hat disclosures must be specific and detailed, not vague
allegations of wrongdoing); see also Edwards v. Department of Labor ,
2022 MSPB 9 , ¶¶ 10 -17, 22 (reaffirming that Title VII-related claims are
excluded from protection under the whistleblower protection statutes).
The appellant has not shown that his removal was the product of harmful
procedural error or a due process violation.
¶54 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 employment
constitutes an abridgement of his c onstitutional 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). In this case, the appellant
24
asserts on review, as he did below, that the agency violated his right to due
process. PFR File, Tab 1 at 7, 11, 13, 15 -16, 23 -24; IAF, Tab 1 at 5, Tab 11
at 11, 19, 27, Tab 36 at 5 -6, 12, 17. The a dministrative judge did not address the
due process issue specifically, but having reviewed the appellant’s arguments, we
find that he has not established a due process violation. Although the appellant
asserts that the agency violated his due process rig hts in many respects, his
assertions do not pertain to the issues of notice and opportunity to respond. For
instance, the appellant argues that the agency violated his due process rights by
requiring him to obtain a medical release before returning to wor k, by failing to
provide medical records to the agency -appointed psychiatrist without the
appellant’s authorization, and by not granting him additional LWOP. PFR File,
Tab 1 at 11, 13, 22. We find that none of the appellant’s arguments are sufficient
to establish a due process violation.
¶55 The appellant also argues on review that the agency committed harmful
procedural error. PFR File, Tab 1 at 5, 7, 16 -17, 23 -24. However, it does not
appear that he raised this issue below. See Clay , 123 M.S.P.R. 245 , ¶ 6. In any
event, t o prove that the agency committed harmful procedural error under
5 U.S.C. § 7701 (c)(2)(A), an appellant must show both that the agency committed
procedural error and that the error was harmful. Parker v. Defense Logistics
Agency , 1 M.S.P.R. 505 , 513 (1980). Here, the appellant has neither identified
nor cited the agency rules or regulations in question, and thus has not shown
procedural error. Simmons v. Department of the Navy , 11 M.S.P.R. 82 , 83-84
(1982). For instance, he argues that the agency’s failure to account for his
difficulty in obtaining a medical release and i ts failure to grant him additional
LWOP were harmful procedural errors , but he identified no corresponding agency
rule. PFR File, Tab 1 at 17, 22. Therefore, even if we were to consider the
appellant’s late -raised arguments, we would find that he has not established his
affirmative defense.
25
The Board lacks jurisdiction over the instant appeal as a constructive suspension
claim.
¶56 The appellant argues for the first time on petition for review that his
absence from duty constituted an appealable constructive suspension. PFR File,
Tab 1 at 24. Although the appellant did not raise this argument below, we
exercise our discretion to address it here. Concerning the absence at issue in this
appeal, from September 6, 2016, through his August 24, 2018 removal, we f ind
that the appellant cannot establish that any period of this absence constituted an
appealable constructive suspension.
¶57 To establish Board jurisdiction over a constructive suspension appeal, an
appellant must prove by preponderant evidence that (1) he l acked a meaningful
choice in his absence; and (2) it was the agency’s wrongful actions that deprived
him of that choice. Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 8 (2013).
As explained above, regardless of whether the appellant had a meaningful choice
in his absence, no period of that absence was the result of the agency’s improper
acts. From September 6, 2016, through Ju ne 1, 2017, the appellant was absent on
his psychiatrist’s orders, and thereafter, he was absent because he was unable to
furnish a medical release, which the agency was fully entitled to require as a
condition of his return.
Removal is the maximum reasona ble penalty for the appellant’s insubordination .
¶58 Because we have declined to rule on the AWOL and excessive absences
charges , and we are proceeding based only on the insubordination charge, it is
appropriate for us to analyze the penalty as if not all char ges were sustained.
Alvarado , 103 M.S.P.R. 1, ¶ 44. When the Board sustains fewer than all of the
agency’s charges, and the agen cy either indicates that it would have imposed the
same penalty based on the sustained charges, or does not indicate to the contrary,
the Board’s role is not to independently determine the penalty, but to decide
whether the agency’s choice of penalty is ap propriate. Negron v. Department of
Justice , 95 M.S.P.R. 561 , ¶ 32 (2004) (citing Lachance v. Devall , 178 F.3d 1246 ,
26
1258 -59 (Fed. Cir. 1999)). The Board cannot “substitute its will” for that of the
agency, which is entrusted with managing its workforce. Id. (quoting Lachance ,
178 F.3d at 1258). Rather, the Board “may mitigate an unreasonably severe
agency penalty to bring the penalty within the bounds of reasonableness.” Id.
(quoting Lachance , 178 F.3d at 1258).
¶59 As previously mentioned, the proposal to remove the ap pellant stated that
any of the charges would support his removal from service. IAF, Tab 5 at 75 -84.
Further, the agency submitted a declaration from the deciding official, in which
he stated under penalty of perjury that “[a]ny one of the charges alone w ould have
supported [the] decision to remove [the appellant] from service .” IAF, Tab 35
at 19-20. Such a declaration, if uncontested as appears to be the case here, proves
the facts it asserts. Woodall v. Federal Energy Regulatory Commission ,
30 M.S.P.R. 271 , 273 (1986).
¶60 The deciding official completed a Douglas factor checklist around the same
time as his decision letter. IAF, Tab 5 at 14 -15; 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 determining an appropriate penalty) . This
checklist described the appellant’s documented mental and emotional distress as a
mitigating factor, along with his 29 years of Federal service. IAF, Tab 5 at 15. It
also indicated that the insubord ination charge, alone, would warrant removal
under the agency’s table of penalties. Id. at 14. The deciding official’s Douglas
factor checklist further referred to numerous other factors as aggravating for
purposes of the penalty determination, including the seriousness of the appellant’s
insubordination, his prior 30 -day suspension, the multiple notices that his conduct
was unacceptable, and his lack of remorse. Id. at 14 -15.
¶61 In his petition, the appellant suggest s that removal was too harsh a penalty
for any of his alleged misconduct, particularly because of his past service and
disabilities. PFR File, Tab 1 at 4, 16. We disagree. We find that the facts at
hand support the app ellant’s removal, even if we only consider the sustained
27
insubordination charge. See Parbs , 107 M.S.P.R. 559 , ¶¶ 9, 12, 24 -26 (con struing
an agency’s charge as one of insubordination concerning a single incident and
finding that it warranted removal); Murry v. General Services Administration ,
93 M.S.P.R. 554 , ¶¶ 2, 6, 8-9 (2003) (finding that an administrative judge erred
by mitigating a removal to a suspension when the agency proved only one of its
three specifications supporting its insubordination charge ), aff’d, 97 F. App’x 319
(Fed. Cir. 2004) .
¶62 In conclusion, we find that the agency proved its charge of insubordination.
We further find that the insubordination charge, alone, supports the penalty of
removal, so we need not rule on the agency’s AWOL and excess ive absences
charges. We also find that the appellant failed to prove any affirmative defense.
Accordingly, we sustain the appellant’s removal from service.
NOTICE OF APPEAL RIG HTS12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the 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
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
28
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:
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.
29
(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 day s after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
30
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegation s 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 F ederal Circuit or any court
of appeals of competent jurisdiction.13 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court 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.
31
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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 | ROSARIO_FABREGAS_JOSE_E_NY_0752_18_0221_I_1_FINAL_ORDER_2041400.pdf | 2023-06-15 | null | NY-0752 | NP |
3,024 | https://www.mspb.gov/decisions/nonprecedential/COLE_CHRISTINE_PH_0752_17_0006_I_1_FINAL_ORDER_2041425.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTINE COLE,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
PH-0752 -17-0006 -I-1
DATE: June 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Southworth , Esquire, and Terina Williams , Esquire , Atlanta,
Georgia, for the appellant.
Andrew M. Greene , Esquire, and John F. Dymond , Esquire, Atlanta,
Georgia, 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 her involuntary retirement appeal for lack of jurisdiction . Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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 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).
BACKGROUND
¶2 The appellant was a GS-11 Program An alyst with the agency’s Internal
Revenue Service ’s Small Business/Self -Employed (SBSE) field examination
office in Baltimore, Maryland. Initial Appeal File (IAF), Tab 9 at 12. In
April 2013, the appellant notified her manager that she was interested in
obtaining a “Hardship/[ Post-of-Duty (POD) ] Transfer ” to South Carolina . IAF,
Tab 10 at 58 , 64. The appellant’s manager referred her to the agency’s Hardship
Coordinator (HC) , who provided the appellant with information concerning
hardship transfers. Id. at 64 -65. After receiving this information, the appellant
sent the HC an email asking, inter alia, whether she would be able to request a
change in POD instead of a hardship transfer. Id. at 64.
¶3 In response, the HC notified the appellant via email that she did not know
“how a change in POD works ” and that the appellant’s manager would handle that
matter. Id. at 63. The HC recommended that the appellant apply to the hardship
program and have her manager work on chan ging he r POD at the same time . Id.
3
The HC also informed the appellant that she could withdraw from the hardship
program if he r manager succeed ed in changing the appellant’s POD .2 Id.
¶4 On July 22, 2013, the appellant submitted Form 13442 , “Application for
Hardship Reassignment/Relocation Request ,” request ing a transfer to South
Carolina because her husband had accepted a position there . Id. at 67-71. With
her application , the appellant submitted a three -page statement entitled “Request
for change in POD and/or Hardship Relocation ,” id. at 69 -71, in which she
asserted that she was requesting a “Hardship Relocation or a POD transfer ,” id.
at 69.
¶5 By letter dated August 14, 2013, the HC notified the appellant that her
hardship relocation application had been approved but cautioned that this
approval did not mean that she had a job offer. Id. at 73. Rather, the HC
explained, the appellant would be considered for future vacancies in her desired
POD with the status of a hardship eligible. Id.
¶6 In September 2013, the appellant purchased a house in South Carolina and
made arrangements to lease out her Baltimore home . Id. at 59 . In October 2013,
the SBSE was reorganiz ed. Id. As a result, its Baltimore field examination office
became part of a different region , and the appellant reported to a new chain of
command . Id.
¶7 The appellant moved to South Carolina in December 2013 and was on
annual leave the entire month . Id. at 19. When she returned to work , the agency
informed her t hat there were no positions available for her in South Carolina and
that she was required to report to Baltimore. Id. at 19, 125 -26. Shortly
thereafter , the appellant’s union filed a grievance on her behalf . Id. at 53-62.
2 In her email, the HC also advised the appellant as follows: “The hardship program is
not a guarantee. You will be placed on a list and relocations are based on vacancies and
selection. . . . I ca nnot supply any time frames [for the transfer] since it is not a
guarantee that you will be placed.” IAF, Tab 10 at 63.
4
The grievan ce was denied in Ma rch 2014 , id. at 49-50, and the union declined to
take the matter to arbitration , id. at 48.
¶8 During this time, the appellant was commuting from South Carolina to
Baltimore. Id. at 132. In April 2014, t he appellant requested a temporary
telework agreement (TTA) to allow her time to move back to Baltimore . Id.
at 131-33. The agency agreed to a 90 -day TTA , which required the appellant to
report to Baltimore 2 days e ach month . Id. at 23-24. The TTA began on June 10,
2014, and was repeatedly renewed because the appellant was having difficulty
relocating to Baltimore . Id. at 23-32. In June 2015, the agency notified the
appellant that her TTA , which was set to expire on June 30, 2015, would be
extended through December 31, 2015 ; however, there would be no further
extensions. Id. at 31 -32; IAF, Tab 11 at 9 .
¶9 The appellant submitted her retirement paperwork in September 2015 and
was scheduled to retire on December 31, 2015 . IAF, Tab 23 at 21. On
December 21, 201 5, the appellant sent an email to various agency officials
claiming that she was being forced to retire and that the agency had discriminated
against her based upon her age and disability (three herniated disks and arthriti s
in her back and knees ). IAF, T ab 10 at 18 -22. On December 28, 2015, t he
appellant’s supervisor offered t o extend the TTA 30 additional days to allow the
agency time to review the issues raised in the email. IAF, Tab 7 at 95. The
appellant declined this offer , id. at 96, and retired as scheduled, IAF, Tab 9 at 12 .
¶10 The appellant then filed a n equal employment opportunity (EEO) complaint
alleging discrimination based on her age and disability and retaliation for her
prior EEO activity. Id. at 13-19. On August 31, 2016, t he agency issu ed a final
decision finding no discrimination and notifying the appellant of her right to file
a mixed -case appeal with the Board . IAF, Tab 7 at 109-17.
¶11 The appellant timely filed an alleged involuntary retirement appeal with the
Board and requested a hea ring. IAF, Tab 1 at 2, 4 . The appellant alleged that her
retirement was involuntary because it was the result of age discrimination,
5
disability discrimination based on failure to accommodate, and reprisal for
protected EEO activity. Id. at 6, 13; IAF, Tab 26 at 4 .
¶12 The administrative judge issued an order that informed the appellant of her
burden of proving the Board’s jurisdiction over her alleged involuntary retirement
claim and directed he r to file evidence and argument that her retirement was
involuntary because of duress, coercion, or misrepresentation by the agency.
IAF, Tab 2. Both parties filed responses to the order. IAF, Tabs 7, 13. After
reviewing the parties’ submissions, the administrative judge determined t hat the
appellant had made a nonfrivolous allegation of Board jurisdiction sufficient to
entitle her to a hearing on the jurisdictional issue. IAF, Tab 14.
¶13 After holding a hearing, the administrative judge determined that the
appellant failed to prove tha t her retirement was involuntary and issued an initial
decision that dismiss ed the appeal for lack of jurisdiction. IAF, Tab 36, Initial
Decision (ID). The appellant has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response in opposition to the petition.
PFR File, Tab 3.
ANALYSIS
The administrative judge correctly found that the appellant failed to prove that
her retirement was the product of misinformation.
¶14 Generally, the Board lacks the authority to revie w an employee’s decision
to retire, which is presumed to be a voluntary act. Brown v. U.S. Postal Service ,
115 M.S.P.R. 609 , ¶ 9, aff’d , 469 F. App’x 852 (Fed. Cir. 2011 ). An involuntary
retirement is tantamount to a removal, however, and is therefore subject to the
Board’s jurisdiction. Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501 ,
¶ 17 (2007) . An appellant may overcome the presumption of voluntariness by
showing that her retirement was the prod uct of misinformation or deception by
the agency or of coercive acts by the agency, such as intolerable working
conditions or the unjustified threat of an adverse action. SanSoucie v.
Department of Agriculture , 116 M.S.P.R. 14 9, ¶ 14 (2011). The Board addresses
6
allegations of discrimination and reprisal in connection with an alleged
involuntary retirement only insofar as tho se allegations relate to the issue of
voluntariness and not whether they would establish discrimination or reprisal as
an affirmative defense. Vitale , 107 M.S.P.R. 501, ¶ 20. The touchstone of the
voluntariness analysis is whether, considering the totality of the circumstances,
factors operated on the employee’s decision -making process that deprived h er of
freedom of choice . Searcy v. Department of Commerce , 114 M.S.P.R. 281 , ¶ 12
(2010).
¶15 An appellant may establish involuntariness on the basis of misinformation
by showing that the agency provided misinformation upon which she reasonably
relied to h er detriment. Paige v. U.S. Postal Service , 106 M.S.P.R. 299 , ¶ 9
(2007). On appeal, the appellant claimed that her retirement was involuntary
because the agency informed her that her POD transfer to South Carolina had
been approved but then notified her that it had not been approved after she had
relocated to South Carolina in reliance on the agency’s misrepresentations. IAF,
Tab 7 at 6-7.
¶16 The administrative judge rejected this argument , finding that the appellant
failed to show that the agency misled her. ID at 10 -16. The administrative judge
noted that the record d id not contain any official documentation confirming the
agency’s approval of her POD transfer . ID at 11, 13-14. Instead, the only
official agency documentation approving the appellant’s transfer request was the
letter approving he r application for a hardship transfer , which expressly stated
that such approval was not a curren t offer of employment but that s he would be
considered for future vacancies in her desired POD if an appropriate position
became available there. ID at 10 -11; IAF, Tab 10 at 73. The administrative
judge found that no one could reasonably rely on the approval of the h ardship
transfer application to make an immediate move to the desired POD . ID at 1 1.
¶17 The administrative judge also found that, not only was there no official
agency document ation showing that the appellant’s POD transfer had been
7
approved, but there was also no testimony corroborating the appellant’s claim that
the agency had misrepresented to he r that her POD transfer had been approved .
ID at 13. In that regard, the administrative judge noted that , although he had
approved as a witness the appellant’s former manager (i.e., her immediate
supervisor prior to the SBSE reorganization ), the appellant chose not to call her
as a witness ,3 nor did she request as witnesses any other agency personnel that
purportedly approved her POD transfer. ID at 13 n.13; IAF, Tab 26 at 12 -13,
Tab 33 at 4 .
¶18 The administrative judge further found that , even if the agency did provide
the appellant with misinformation , it was “not a likely trigger” for her retirement,
as the misinformation was provided 2 years before she retired and she had the
opportunity to make specific choices in the interim. ID at 15-16 (citing Shoaf v.
Department of Agricultu re, 260 F.3d 1336 , 1342 (Fed. Cir. 2001) (stating that
while an action significantly preceding the purported involuntary action may well
be rele vant, incidents closer in time are likely more relevant )). Accordingly, the
administrative judge concluded that the appellant’s arguments that her retirement
was involuntary due to misinformation were not persuasive. ID at 9.
¶19 On review, the appellant alleges that the administrative judge improperly
discounted numerous accounts of misinformation by the agency, and she asserts
that “[m]uch evidence ” suggests that the agency misled he r into believing that her
POD transfer had been approved . PFR File, Tab 1 at 6. In support of this claim,
the appellant cites various emails from agency personnel. Id. at 6-8; IAF, Tab 10
at 75-76, 78 -79. We have reviewed these emails and find that, with the exception
of an August 21, 2013 email from the appel lant’s former manager to a Facilities
3 The administrative judge noted that the appellant’s former manager could have
corroborated the appellant’s allegation that she mistak enly believed that the appellant’s
POD transfer had been approved and conveyed that incorrect information to the
appellant. ID at 13.
8
Project Specialist (FPS) for the agency , which we discuss further below, none of
the emails misrepresented that the appellant ’s POD transfer had been approved.4
¶20 We also find unavailing the appellant’s argument on revie w that, by
instructing the appellant to use the hardship transfer form to request a POD
transfer, the HC misled her into thinking that she was filing a POD transfer
request. PFR File, Tab 1 at 11. Although the appellant contends that he r request
was for a POD transfer and not a hardship transfer, this claim is contradicted by
the statement that she submitted with her transfer application, in which she
explicitly asserted that she was requesting a hardship transfer or a POD transfer.
IAF, Tab 7 at 5 , Tab 10 at 70, 127 , Tab 27 at 88 . In any event, even if the
appellant believed that she was requesting only a POD transfer when she
submitted the application form , the August 14, 2013 approval letter clearly stated
that she had been approved fo r a hardship transfer and that such a transfer was
contingent on the availability of a vacancy in her desired POD. IAF, Tab 10
at 73. Thus, even assuming arguendo that the HC misled the appellant into
believing that she was making a POD transfer request via the hardship transfer
form, given the clear language of the approval letter, it was not reasonable for her
to believe that she had been approved for a POD transfer.
¶21 In our view, the strongest evidence in support of the appellant’s claim that
agency off icials misled her into believing that the agency had approved a POD
transfer is the aforementioned August 21, 2013 email from the appellant’s former
4 For example, the appellant alleges that the FPS misled her into believing that her POD
transfer had been approved becau se the FPS’s email response to the appellant’s former
manager’s email stating that she had approved the appellant’s POD transfer request and
asking him whether he would be involved in the appellant’s relocation did not mention
“job vacancies” but merely ad vised the appellant’s former manager how best to
coordinate the move. PFR File, Tab 1 at 7; IAF, Tab 10 at 78. Significantly, however,
the FPS was responding to the manager’s email stating that the appellant had received
approval for a POD transfer , and he had no reason to know that she instead had received
approval for a hardship transfer that was contingent on the availability of a vacancy in
the appellant’s desired POD. IAF, Tab 10 at 79. Thus, we find that the FPS’s email
was not misleading.
9
manager to the FPS . IAF, Tab 10 at 79. In the email, which contains the subject
line “POD Relocation ,” the manager states that an employee in Baltimore
requested a POD transfer to Columbia, South Carolina, and that she and her
manager approved the request. Id. The appellant argues that, based on the
language acknowledging the approval of the POD transfer, she reasonably
believed that a POD transfer had been approved. PFR File, Tab 1 at 6-7.
¶22 Although the appellant’s former supervisor incorrectly states in her email
that she and her manager approved the appellant’s POD transfer request, for an
appellant t o establish that her retirement was involuntary on the basis of
agency -supplied misinformation, she must not only show that the agency
misinformed her but also that she reasonably relied on that misinformation .
Paige , 106 M.S.P.R. 299 , ¶ 9. Based on our review of the record, we find that the
appellant failed to meet this standard. As previously noted, the August 14, 2013
hardship transfer approval letter explicitly informed th e appellant that she had
been approved for a hardship transfer and that such a transfer was contingent on
the availability of a vacancy in her desired POD . IAF, Tab 10 at 73. Also, prior
to receiving the har dship approval letter, the appellant was warned at least twice
that approval for a hardship transfer did not guarantee that a transfer would occur .
First, as noted above, in her April 18, 2013 email addressing the appellant’s
questions about applying for a transfer, the HC stated that approval of a hardship
transfer request was no guarantee that she would receive a transfer and that
relocations were based on vacancies and selection. Id. at 63. Second, the record
indicates that the appellant signed a Hard ship Reassignment Checklis t on July 29,
2013, which states as follows: “Placement by the hardship reassignment process
is not guaranteed. It is driven entirely on when a vacancy is available in the
requested POD.” Id. at 56.
¶23 Moreover, as noted by the administrative judge, on September 10, 2013,
i.e., about 3 weeks after the appellant’s former manager ’s email to the F PS stating
that the appellant’s POD transfer request had been approved, the appellant sent an
10
email to a friend complaining that there were problems with her transfer and that
no one, including her manager, knew the requirements for effecting the transfer.
ID at 13; IAF, Tab 10 at 101. The administrative judge found, a nd we agree, that
this email suggests that the appellant was aware that her transfer was not a
certainty before she purchased a house in South Carolina and moved there. ID
at 13. Considering the totality of the circumstances, we find that , although the
appellant’s former supervisor’s email was argua bly misleading , the appellant did
not establish by preponderant evidence that she reasonably relied upon
agency -supplied misinformation . Accordingly, based on our review of the record,
we see no reason to disturb the administrative judge’s finding that the appellant
failed to prove that her retirement was involuntar y based on misinformation. ID
at 10 -16.
The administrative judge correctly found that the appellant’s retirement was not
involuntary based on a failure to accommodate.
¶24 We also agree with the administrative judge that the appellant failed to
prove that she was forced to retire because the agency failed to accommodate her
disability.5 ID at 16 -20. A retirement may be rendered involuntary when an
agency improperly denies an employee’s request for a reasonable accommodation
of her disability . See Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R.
110, ¶ 7 (2010) . The administrative judge found that the appellant never
requested an accommodation, either expressly or implicitly, and never initiated
the accommodation process even though she was familiar with it. ID at 20. In
support of this finding, the administrative judge noted that the appellant testif ied
that, although she was familiar with the formal accommodation process because
5 As the administrative judge noted in the initial decision , it is undisputed that the
appellant was a qualified individual with a disability ( three herniated disks in her back
and arthritic knees ) and that she had applied for and received an accommodation fr om
the agency in 2011 (a pass that allowed the appellant to access the Baltimore facility
through an alternate entrance and thereby avoid climbing the stairs at the main
entrance ). ID at 2; I AF, Tab 10 at 141 , Tab 26 at 5, Tab 27 at 5 -6.
11
she previously had requested and received an accommodation, she never asked
anyone at the agency for an accommodation of her disability based on the
situation involving her t ransfer request, nor did she view the temporary TTAs as
accommodations for her disability. ID at 16 (citing IAF, Tab 35, Hearing
Compact Disc (testimony of the appellant)).
¶25 The appellant challenges this finding on review, arguing that she made
repeated re quests for telework or other accommodations because of her disability ;
however, management intentionally chose not to engage in the interactive
process. PFR File, Tab 1 at 8. This argument is completely at odds with the
appellant’s testimony that she nev er asked anyone in the agency for a reasonable
accommodation for her disability during the relevant time period . Further, the
documentary evidence in the record shows that the appellant’s requests for
telework or other accommodations were not based on her disability . Rather, as
previously discussed, the appellant initially requested temporary telework to
allow her time to move back to Baltimore . IAF, Tab 10 at 131-33. Similarly, the
appellant’s subsequent requests for telework or other accommodations were based
on her alleged difficulty relocating to Baltimore for various reasons unrelated to
her disability, such as problems evicting her tenant in Baltimore and difficulty
selling or renting her house in South Carolina. Id. at 20, 23 -32.
¶26 The administra tive judge also considered the appellant’s argument , which
she reiterates on review, that the agency should have known that she needed an
accommodation because agency officials were aware that she had a disability and
was having difficulty with the commute to Baltimore. ID at 9, 17 -18; IAF,
Tab 27 at 75; PFR File, Tab 1 at 10 -11. Specifically, the appellant contends that
the agency had an obligation to initiate the interactive process because her
supervisor was aware that she had a physical disability for which she had
received an accommodation in 2011 and therefore should have been aware of the
connection between her physical limitations and the problems she was having
with her commute, particularly in light of a February 2014 note from her doctor ,
12
which recommended that the appellant avoid train travel because prolonged
sitting and lifting her l uggage aggravated he r back pain . PFR File, Tab 1
at 10-11; IAF, Tab 7 at 37.
¶27 The administrative judge rejected th is argument , finding that the appellant’s
prior a ccommodation had no conceivable relationship to her subsequent
circumstances. ID at 17. Regarding the appellant’s contention that her
supervisors should have been aware of the connection between her disability and
her difficulty with the commute, the administrative judge noted that , while her
supervisors acknowledged that the commute was difficult for her, a commute of
more than 500 miles would be problematic for anyone . Id.
¶28 The administrative judge also found that the February 6, 2014 note from the
appellant ’s doctor was not an implicit request to begin the interactive process. ID
at 18. In making this finding, the administrative judge credited the appellant’s
supervisor’s testimony that the appellant submitted this note in support of her
request f or 80 hours of sick leave over the appellant’s testimony that the purpose
of the note was not so limited . Id. The appellant has shown no reason to disturb
the administrative judge’s credibility finding s. See Haebe v. Department of
Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (the Board must defer to an
administrative judge ’s credibility determinations when they are based, explicitly
or implici tly, on observing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound ”
reasons for doing so ). Thus, we agree with the administrative judge that the
appellant did not show that her retirement was involuntary because the agency
failed to accommodate her disability.
The administrative judge correctly found that the a ppellant failed to prove that
her retirement was involuntary based on coercion .
¶29 The appellant also alleged that the agency coerced her retirement by
requiring her to commute from Columbia , South Carolina, to Baltimore . IAF,
Tab 26 at 9 -10. To establish involuntariness on the basis of coercion, an
13
employee must show that the agency e ffectively imposed the terms of her
retirement, she had no realistic alternative but to retire, and her retirement was
the result of improper acts by the agency. Staats v. U.S. Postal Service , 99 F.3d
1120 , 1124 (Fed. Cir. 1996) . The doctrine of coerced involuntariness is “a
narrow one” and does not apply if the employee retires because she “does not
want to accept [measures] that the agency is a uthorized to adopt, even if those
measures make continuation in the job so unpleasant . . . that [s]he feels that [s]he
has no realistic option but to leave.” Id. “[T]he fact that an employee is faced
with an unpleasant situation or that [her] choice is limited to two unattractive
options does not make [h er] decision any less voluntary.” Id.
¶30 Here, t he administrative judge found that the appellant had at least three
choices as of December 31, 2015 : (1) to retire or find another job; (2) to sel l or
rent her South Carolina home and move back to her Baltimore home ; and (3) to
travel to Baltimore from Columbia to work 2 or 3 days each week. ID at 21. The
administrative judge found that, although the appellant did not find any of these
options pal atable, her retire ment was voluntary because she had a choice as to
whether to retire. Id.; see Staats , 99 F.3d at 1123 (finding that the fact that the
petitioner “perceived his situation to be an unpleasant one because he did not
wish to relocate . . . does not make his decision to retire . . . involuntary ”).
¶31 The appellant challenges this finding on review, arguing that the evidence
does not support the administrative judge’s conclusion that she had alternatives to
retirement available. PFR File, Tab 1 at 13. In particular, the appellant contends
that she was forced to retire because relocating to Baltimore “was not realistic”
due to the cost of moving and the financial consequences of terminating the lease
on her Baltimore property early . Id.
¶32 This arg ument is unavailing. Although the appellant claims she was forced
to retire because relocating to Baltimore was too expensive, she had the option of
selling or renting her South Carolina home, which would have lessened the
financial burden of moving back to Baltimore . Further, the appellant’s retirement
14
was not the result of improper acts by the agency. Rather, as the administrative
judge noted, the appellant’s circumstances were self-imposed, given that she
moved to South Carolina without first securing a proper transfer. ID at 17.
Accordingly, we agree with the administrative judge that the appellant failed to
prove that her retire ment was involuntary, and we affirm the initial decision.
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 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
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
16
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then 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
17
(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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 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 are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | COLE_CHRISTINE_PH_0752_17_0006_I_1_FINAL_ORDER_2041425.pdf | 2023-06-15 | null | PH-0752 | NP |
3,025 | https://www.mspb.gov/decisions/nonprecedential/LEWIS_DARRYL_M_DC_1221_15_0676_B_1_FINAL_ORDER_2041519.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DARRYL M. LEWIS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-1221 -15-0676 -B-1
DATE: June 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darryl M. Lewis , APO/ AE, pro se.
Alyssa S. Adams and Ryan L. Wischkaemper , 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 remand initial decision,
which denied his request f or corrective action in his individual right of action
(IRA) appeal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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 aff ected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. T herefore, 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).
BACKGROUND
¶2 The d etailed background for this appeal is set forth in Lewis v. D epartment
of Defense , 123 M.S.P.R. 255, ¶¶ 2-6 (2016). Briefly stated, the appellant was a
Foreign Affairs Specialist, GS -0130 -13, at the Department of Defense, Defense
Prisoner of War/Missing Personnel Office (DPMO) in Washington, D.C. , prior to
his January 2012 removal . Lewis , 123 M.S.P.R. 255, ¶¶ 2, 7 n.2 . During
September 2011, he asked to take 1 year of leave without pay (LWOP) to pursue a
Master of Law degree in Germany while he accompanied his wife, also a Federal
employee, to her new duty station there . Id., ¶ 2. He additionally requested
permission to telecommute from Germany. Id. The agency denied h is requests.
Id. He thus informed the agency t hat he was moving to Germany, and he stopped
reporting to work on October 24, 2011 . Id. The agency ordered him to report for
work and, after he failed to do so, removed him on charges of absence without
leave (AWOL) (30 specifications) and failure to fol low an order. Id.
3
¶3 The appellant did not file an adverse action appeal to the Board . Id.,
¶ 2 n.1. Instead, he filed a whistleblower complaint with the Office of Special
Counsel (OSC) . Id., ¶ 3. OSC closed its investigation , and the appellant filed
this appeal. Id.; Initial Appeal File (IAF), Tab 1. The administrative judge
issued an initial decision that dismissed the appeal for lack of Board jurisdiction.
Lewis , 123 M.S.P.R. 255, ¶ 6. On review, the Board found that the appellant
exhausted his administrative remedies and nonfrivolously alleged having made
two protected disclosures . Id., ¶¶ 10-12. He allegedly disclosed that M.P., a
Human Resources employee without an adequate security clearance, was in a
Sensitive Compartmented Information Facility (SCIF) unescorted in violation of
security regulations and that J.B., another employee, falsely rep resented himself
as a security officer to obtain certain records. Id., ¶¶ 5, 11 -12. The Board
concluded that it had jurisdiction over the appeal and remanded the case to the
Washington Regional Office, where the administrative judge set a hearing date.
Id., ¶ 14; Remand File (RF), Tab 8 .
¶4 At the prehearing conference, the administrative judge limited consideration
to the following issues:
(a) Whether the appellant could prove by preponderant evidence that
he made protected disclosures when he informed the agency that
M.P. was present in a SCIF without authorization and that J.B.
falsely represente d himself as a security officer; that he engaged
in activity protected under 5 U.S.C. § 2302 (b)(9) (A)(i) and (C)
when he initiated an Inspector General complaint and a prior
Board appeal ;2 and that his alleged protected activity was a
2 In addition to his whistleblower claim , the appellant alleged that he was being
retaliated against for engaging in protected activity when he initiated an Inspector
General complaint and filed a pr ior Board appeal. IAF, Tabs 4 -5. The administrative
judge took official notice of Board records indicating that he had filed an IRA appeal in
2010 , Lewis v. Department of Defense , MSPB Docket No . DC -1221 -10-0363 -W-1. RF,
Tab 25, Remand Initial Decision (RID) at 6 n.5. The administrative judge found that
the appellant failed to meet his burden of proof on both of the claims . RID at 5-6. The
appellant does not challenge th ese finding s on review , and we discern no reason to
disturb them .
4
motivating factor in the agency’s decisions to remove him, deny
him telewor k, and deny his request for LWOP .
(b) Whether the agency could prove by clear and convincing
evidence that it would have taken the same actions
notwithstanding the appellant’s p rotected whistleblower activity.
RF, Tab 18 at 2. The a ppellant object ed to this summary of the issues , but those
objections simply added detail to the administrative judge’s articulation of the
issues. RF, Tab 19 at 5 -6.
¶5 The appellant also objected to appearing at a video teleconference (VTC)
hearing from a U.S. military installation in Germany, and he declined the
agency’s offer to cover his travel expenses for attending a hearing in Arlington,
Virginia. RF, Tab 18 at 1, Tab 19 at 7. When he failed to appear for his
scheduled hearing on June 15, 2016, th e administrative judge cancelled the
hearing and issued the decision based on the written record, which closed on
June 23, 2016 , after the parties filed final briefs . RF, Tab 20.
¶6 The administrative judge found that the appellant met his burden of proof
on protected disclosure s and contributing factor . RF, Tab 25, Remand Initial
Decision ( RID) at 5. The administrative judge based her conclusion regarding the
protected disclosures on the agency’s concession that the appellant made th e
disclosures he claimed, that each disclosur e asserted a violation of a regulation or
regulations pertaining to the security of classified or sensitive information , and
that the record did not reflect that the appellant had any specialized experience
that would inform him of the precise manner in wh ich such regulations are to be
applied . Id.; RF, Tab 22 at 5. She based her conclusion regarding contributing
factor on the fact that the disclosures were made less than 2 years before the
agency decisions the appellant contest ed. RID at 5. The adminis trative judge
then found that the agency showed by clear and convincing evidence that it would
have denied his requests for LWOP and to telework from German y and removed
him in the absence of any disclosure . RID at 7-12. The administrative judge thus
5
denied the appellant’s request for corrective action. RID at 12. The appellant has
filed a petition for review. Remand Petition for Review ( RPFR ) File, Tab 1.
ANALYSIS
The appellant has not established that the remand initial decision contains any
mate rial factual errors or omissions .
¶7 On review, the appellant objects to the administrative judge’s somewhat
abbreviated characterization of his two protected disclosures as lacking
significant detail s. RPFR File, Tab 1 at 7 -8. We find that, even i f the
administrative judge erred, such an error would not change the outcome of the
appeal. The agency stipulated that the appellant made the disclosures he claims
to have made , and the administrative judge found that they were protected . RID
at 5; RF, Tab 17 at 4-5, Tab 22 at 4 -5. Having considered the additional facts
cited in the appellant’s petition for review , we find that they are not of sufficient
weight to warrant disturbing the administrative judge’s explained findings
regarding the strength of any retal iatory motive. RID at 11.
¶8 The appellant also asserts that the administrative judge erred when she
stated in the Background and Procedural History section of the remand initial
decision that he had experienced issues with his security clearance early in 20 06.
RPFR File, Tab 1 at 13-14; RID at 2. He argues that such information was
fabricated and intended to discredit a witness whose testimony he had proffered.
RPFR File, Tab 1 at 8 -9, 13. The record shows that , in 2006, the agency required
the appellant to provide additional information about foreign nationals in his
extended family before he could receive access to the SCIF. RF, Tab 17 at 4 -5,
26-29, Tab 23 at 118 -19. J.B. assisted the appellant with that pro cess in
performing his security -related duties. Id. The administrative judge appears to
have included this information in the remand initial decision solely as background
to discuss the appellant’s interactions with J.B. Even if we were to modify the
findings of fact to comport with t he appellant’s preferences, the outcome of the
6
appeal would not change. Therefore, we find that t he appellant’s arguments are
unavailing.
The administrative judge correctly concluded that the agency established by clear
and convincing evidence that it wou ld have taken the same personnel actions in
the absence of the appellant’s disclosures .
¶9 Neither party has contested the administrative judge’s finding that the
appellant made protected disclosures that were a contributing factor in the
contested agency act ions, nor do we find any reason to disturb those findings.
RID at 5. When the administrative judge found that the appellant had met his
burden of proof, the burden shifted to the agency to show by clear and convincing
evidence that it would have taken th e same personnel actions in the absence of the
appellant’s whistleblowing. Id.; see Aquino v. Department of Homeland Security ,
121 M.S.P.R. 35, ¶ 10 (2014). In determining whether the agency met its burden,
the Board considers all of the relevant factors, including the following: (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323
(Fed. Cir. 1999) ; Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11.
Rather than view the factors as discrete elements, the Board weighs the factors
together to determine whether the evidence is clear and convincing as a whole.
Karnes v. Department of Justice , 2023 MSPB 12 , ¶ 24. In doing so, the Board
must consider all the pertinent evidence in the record, and must n ot exclude or
ignore countervailing evidence by only looking at the evidence that supports the
agency’s position. Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed.
Cir. 2012) ; Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 14 (2015) .
¶10 As to the first Carr factor, t he administrative judge found that the evidence
supporting the agency’s decisions to deny the appellant’s requests for LWOP or
7
to telework from Germany was compelling . RID at 8 -10. T he administrative
judge further found that the agency proffered clear, convincing, and unrefuted
evidence that it removed the appellant because his relocation to Germany
precluded his ability to report to work, he failed to report to work after being
ordered to do so, and he remained AWOL for 30 days. RID at 11 . The appellant
argues that the agency ’s standard procedures require the granting of a preference
in hiring, or LWOP for up to 1 year, when the spouse of an agency employee is
transferred overseas. RPFR File, Tab 1 at 12 -13. However, he produced no proof
of such a policy regarding hiring pre ferences. The agency, in contrast, showed
that the granting of LWOP in such circumstances was discretionary and, in the
appellant’s case, it had determined that the cost and inconvenience of granting
such leave exceeded any benefit to be gained by doing s o. RF, Tab 17 at 24-25,
Tab 22 at 16 -18, 38 -40; IAF, Tab 7 at 39. There is no evidence, therefore, that
the agency contravened any of its policies pertaining to hiring preferences or the
granting of LWOP for an employee whose spouse has been transferred overseas.
¶11 The appellant also raises on review an email message from E.F., who was
Principal Director of the DPMO and the deciding official in the removal action.
RPFR File, Tab 1 at 12; RF, Tab 22 at 15-23. The appellant argues that E.F.
stated in the em ail that the agency denied the requested LWOP “because of [his]
‘record.’” RPFR File, Tab 1 at 12. He asserts that E.F. was referring to his
record as a whistleblower. Id. The appellant, however, did not provide any
citation to assist us in locating th e specific email message to which he refers. See
5 C.F.R. § 1201.114 (b) (“ A petition . . . for review . . . must be supported by . . .
specific references to the record. ”). Our review of the email correspondence
pertaining to the appellant’s request, moreover, shows that the agency held in
high regard the appellant’s work on matters pertaining to missing personnel on
the Korean peninsula but concluded that its interests would not be ser ved by
granting his request to pursue legal studies in Germany. For example, E.F. stated
in one email message that the appellant “works in the Korean War element and
8
that will be getting busy if things go as we expect. He is doing good work and
we need h im to do his job.” RF, Tab 23 at 7. In a message to the appellant
officially denying his request, the Chief of Staff to the Undersecretary of Defense
(Policy) explained:
I have weighed carefully your request for leave without pay to
pursue advanced studi es in Germany. In light of the limited
personnel available at DPMO and the fact that you are performing
important and useful work I do not/not approve your request for
leave without pay.
Id., Tab 23 at 44. The email correspondence pertaining to the app ellant’s request
clearly shows that the agency considered his LWOP request but denied it for
staffing reasons and not because of any disclosure that he had made . We agree
with the agency that Carr factor 1 weighs in the agency’s favor.
¶12 Turning to the second Carr factor, we agree with the administrative judge
that any motive to retaliate on the part of the agency officials who were involved
in the decision was relatively weak . RID at 10. Our reviewing court has
cautioned us against taki ng too narrow a view of the second Carr factor, stating,
“[t]hose responsible for the agency’s performance overall may well be motivated
to retaliate even if they are not directly implicated by the disclosures, and even if
they do not know the whistleblowe r personally, as the criticism reflects on them
in their capacities as managers and employees.” Whitmore , 680 F.3d at 1370 .
The court in Whitmore determined that, when a whistleblower makes highly
critical accusations of an agency’s conduct that draws the attention of high -level
agency manager s, the fact that an agency official is “outside that whistleblower’s
chain of command, not directly involved in allege d retaliatory actions, and not
personally named in the whistleblower’s disclosure is insufficient to remove the
possibility of a retaliatory motive or retaliatory influence. ” Id. at 1371.
¶13 Here, the administrative judge found that neither person named in the
appellant’s disclosures was involved in his removal . RID at 11 -12. The
administrative judge also found, and we agree, that the appellant’s disclosures
9
were not the sort of highly critical accusations of agency misconduct that might
draw the attentio n of high -level agency manager s about which the court warned
in Whitmore . RID at 10 -12; see Robinson v. Department of Veterans Affairs ,
923 F.3d 1004 , 1019 (Fed. Cir. 2019) (finding that the administrative judge erred
by failing to consider whether the deciding official had a “professional retaliatory
motive” against the appellant because his disclosures “implicated the capabilities,
performance, and veracity of [agency] mana gers and employees, and implied that
the [agency] deceived [a] Senate Committee”). As noted above, the appellant
argues on review that the agency denied his request for LWOP “because of [his]
‘record’” as a whistleblower. RPFR File, Tab 1 at 12. Althoug h we have been
unable to identify the email in which the agency is alleged to have made this
remark, assuming that it exists and assuming that it constitutes evidence of
retaliatory motive, it is offset to some degree by evidence that the agency held the
appellant’s work in high regard. We find, therefore, that the administrative judge
correctly concluded that the evidence of retaliatory motive was weak, RID at 10,
and that Carr factor 2 slightly favors the appellant.
¶14 Regarding Carr factor 3, t he administ rative judge found nothing in the
record to indicate that employees similarly situated to the appellant had been
treated differently when they requested LWOP or telework , or that there were
similarly situated employees who were AWOL for an extended period of time and
avoided removal. RID at 1 1-12. The appellant argues on review that the agency
did not meet its burden of proof because it failed during discovery to provide
comparator evidence regarding other employees who were in an AWOL status.
RPFR File, Tab 1 at 6, 12. Nevertheless, the agency responded to the appellant’s
discovery request, explaining that it had been unable to identify any comparators.
RF, Tab 23 at 147-48. According to the agency, no employee who was
transferred to an overseas bille t was similarly situated to the appellant, i.e.,
accompanying a spouse after a permanent change of station, and no employee
transferring overseas w as removed for AWOL or failure to obey an order. Id. As
10
we explain infra , ¶ 17 , however, the appellant failed to file a timely motion to
compel regarding the deficiencies he believes plague the agency’s discovery
response. In any event, the agency’s failure to introduce comparator evidence
cannot weigh in its favor. Smith v. Gener al Services Administration , 930 F.3d
1359 , 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency , 908 F.3d
1291 , 1299 (Fed. Cir. 2018).
¶15 We agree with the administrative judge, however, that the strength of the
agency’s evidence in support of its actions outweighs the slight evidence of
retaliatory motive and the absence of comparator evi dence. Accordingly, we
find that the administrative judge properly concluded that the agency met its
burden to prove by clear and convincing evidence that it would have taken the
same actions in the absence of the appellant’s disclosures.3
The administrat ive judge did not abuse her discretion when she declined to extend
the discovery period .
¶16 The appellant argues that the administrative judge abused her discretion by
failing to e xtend the deadline for discovery. RPFR File, Tab 1 at 5 -6. The
deadline for d iscovery was May 16, 2016. RF, Tab 8 at 2. On that day, the
appellant filed a unilateral motion asking the administrative judge to suspend
case processing for 2 weeks to allow him time to evaluate the agency ’s discovery
responses . The appellant explaine d that he had received a partial response by
email on May 6, 2016 , but the agency stated it had mailed additional materials ,
which he had not yet received. RF, Tab 12 . He further asserted that he was
requesting the additional time “ [i]n lieu of filing a Motion to Compel or for
Sanctions.” Id.
¶17 On review, t he appellant asserts that, after he filed the motion, the
administrative judge’s clerk called and told him that he had to confer with the
3 We have revie wed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
11
agency before filing such a motion. RPFR File , Tab 1 at 5 -6. The appellant
refiled the motion on May 17, 2016, explaining that he had twice contacted the
agency before filing the initial motion but had not received a ny response. RF,
Tab 13. The appellant repeated that he was filing the motion to e xtend discovery
instead of filing a motion to compel or for sanctions. Id. The agency re plied ,
stating that the appellant had received its discovery response by email on May 6,
2016, and that two compact discs containing the documents he sought had been
mailed on May 13, 2016, and were due to be delivered on May 18, 2016 .4 RF,
Tab 14. The administrative judge denied the appellant’s motion. RF, Tab 15.
The appellant asserts that he received the compact discs on May 18, 2016, which
included hundreds of emails and other documents that w ere largely unresponsive
or significantly redacted . RPFR File, Tab 1 at 6. He asserts that the volume and
immateriality of the agency’s response, as well as the administrative judge’s
decision not to ext end discovery, pre judic ed his appeal . Id. In particular, the
appellant state s that the agency failed to provide “relevant comparator evidence,”
specifically regarding whether other purportedly similarly situated employees
were fired instead of given LWOP. Id.
¶18 An administ rative judge has wide discretion under the Board’s rules on
discovery matters , and the Board will not reverse her rulings absent an abuse of
discretion . Wagner v. Environmental Protection Agency , 54 M.S.P.R. 447 , 452
(1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). Under the particular
circu mstances of this case, in which the appellant provided notice to the
administrative judge on the d ate discovery was to close that he was still waiting
to receive part of the agency’s discovery response and was requesting an
extension of the discovery deadline in lieu of filing a motion to compel , it is
4 The agency also said that it had not received a full response from the appellant for its
own discovery requests and that it might file a motion to compel. RF, Tab 14 at 4.
When she denied the appellant’s motion, the administrative judge thus reminded the
parties that the time for filing motion s to compel had passed. RF, Tab 15 .
12
arguable that the administrative judge should have granted the appellant at least
a limited extension of time to determine whether a motion to compel would be
necessary. This would have allowed the appellant an opportunity to review the
discovery responses in their entirety and to confer with the agency, if necessary,
before determining whether he wished to file a motion to compel. Further, it
would have provided the parties a chance to complete dis covery with a minimum
of Board intervention , as proscribed in Board regulations . 5 C.F.R. § 1201.71 .
Moreover, we note that while t he administr ative judge informed the parties that
discovery was to close on May 16, 2016, her order did not state that the deadline
applied to motions to compel ; despite this, she stated in her May 17, 2016 order
denying the appellant’s motion for an extension that the time for filing motions
to compel had pa ssed . RF, Tab 8. In this regard , it is apparent from the
agency’s response to the appellant’s motion for an extension that the agency
believed the discovery deadline did not apply to motions to compel, RF, Tab 14,
and we find this interpretation of the o rder to have been a reasonable one.
¶19 Nonetheless, even assuming that the administrative judge abused her
discretion by denying the appellant’s motion for an extension of the discovery
deadline and ruling that the discovery deadline applied to motions to com pel, we
find that the appellant has not shown that he was harmed by her rulings . The
only specific effect the appellant points to of the failure to extend discovery was
on his ability to identify comparator employees. RPFR File, Tab 1 at 5 -6. In
fact, h owever, the agency’s answers to the appellant’s interrogatories were
responsive on that issue, and indicated clearly that no similarly situated
employees existed. RF, Tab 23 at 147 -48. The appellant does not even argue
that the portion of the discovery r esponse he received after the deadline
contained any information to the contrary, nor does he provide any evidence or
argument indicating that the agency’s interrogatory response on this issue was
inaccurate or untruthful. Accordingly, we find that the ap pellant has failed to
show that he was prejudiced by the administrative judge’s decision not to extend
13
the discovery deadline or her determination that the deadline applied to motions
to compel. See Vores v. Department of the Army , 109 M.S.P.R. 191 , ¶ 1 4 (2008)
(finding that even if the administrative judge abused his discretion with respect
to his discovery rulings below, the appellant must show how that error affected
the result reached in his appeal ), aff’d per curiam , 324 F. App’x 883 (Fed. Cir.
2009 ).
The administrative judge did not abuse her discretion when she denied two of the
appellant’s witnesses .
¶20 The a ppellant further asserts that the administrative judge abused her
discretion when she denied some of his witnesses. RPFR File, Tab 1 at 6 -9. The
appellant requested the Chief of Security at DPMO Arlington, Virginia, to testify
that he had been informed of M.P.’s unescorted presence in the SCIF and that he
had received orders from DPMO management to suspend the appellant’s security
clearance. RF, Tab 16 at 5. The appellant also requested a DPMO Security
Specialist to testify that she had seen M.P. unescorted and unobserved in the
SCIF before she had been given the proper clearance. Id. at 6. The
administrative judge ruled against admitting these witnesses , explaining that their
testimony was du plicative and would not add evidence that is probative of any
issue in the appeal. RF, Tab 18 at 3 -4.
¶21 The appellant argues on review that these witnesses could have accurately
explained the nature of the problem caused by M.P.’s presence in the SCIF , thus
preventing the administrative judge from making erroneous findings of fact.
RPFR File, Tab 1 at 7-9. He also claim s that t hey could have testified regarding
the nature of J.B.’s security -related duties. Id. The appellant a dditionally asserts
that the Chief of Security could have testified regarding agency officials ’ efforts
to suspend his security clearance based on the conduct underlying his removal .
Here, the appellant specifically argues that the agency failed to produce a letter to
the Chief of Se curity regarding suspen ding his clearance, and he a sserts that the
14
Chief of Security would have testified to the existence and content of that letter.5
Id. at 8, 11. The Chief’s testimony , he explains , would have shown the agency’s
retaliatory animus. Id.
¶22 An administrative judge has wide discretion under 5 C.F.R.
§ 1201.41 (b)(8), (10) to exclude witnesses when it has not been shown that their
testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal
Service , 27 M.S.P.R. 322 , 325 (1985). The administrative judge explained that
she was excluding these witnesses because the appellant’s offer of proof did not
indicate that their testimony would add nonduplicative evidence that was
probative of any issue before her. RF, Tab 18 at 3 -4. She then extended to the
appellant an additional 2-day period during which he could provide an additional
offer of proof regarding the testimony of the witnesses. Id. The appellant
declined to do so, stating that it would have been burdensome for him to obtain
sworn statements from the witnesses on such short notice. RPFR File, Tab 1 at 8.
Although the appellant’s location in Germany would have complicated the matter
of obtaining witness statements on short notice, he also had the option to submit a
more substantial offer of proof when he initially requested the witnesses .
Accordingly, we find no abuse of discretion in the administrative judge’s ruling
exclu ding some of the appellant’s proposed witnesses .
The administrative judge did not abuse her discretion when she declined to
postpone the hearing .
¶23 The appell ant asserts that the administrative judge abused her discretion
when she declined to postpone the hearing in light of his concerns about holding
it at a military installation in Germany , where he believed a terrorist attack was
possible and where he felt h e would receive hostile treatment. RPFR File, Tab 1
5 The agency denied such a letter existed. RF, Tab 23 at 154. Additionally, the agency
state d that it interviewed the Chief of Security, who said he had not received any such
letter. RPFR File, Tab 3 at 13.
15
at 9-11; RF, Tab 19 at 7 . The appellant asserts that he asked for the hearing to be
moved to a more neutral environment owing to his security concerns and fear of
bias and that the administrative judge denied his request . RPFR File, Tab 1
at 10-11. The a gency , however, offered to pay his travel expenses for attending
the hearing in person at the Board’s Washington Regional Office . RF, Tab 18
at 1. The appellant declined the offer. Id. The administrative judge has broad
discretion to c onvene a hearing as appropriate and to regulate the course of the
hearing . 5 C.F.R. § 1201.41 (b)(6). We find no abuse of discretion in the
administrative judge ’s ruling denying the appellant’s request to postpone the
hearing.
The administrative judge did not abuse her discretion when she cancelled the
hearing.
¶24 The appellant also asserts that the administrative judge abused her
discretion when she cancelled the hearing. RPFR File, Tab 1 at 11. The
appellant explains that the prehearing conference instructions state that , if he
failed to attend the hearing , the administrative judge would carry on without him.
Id. Instead, he asserts, she cancelled the hearing when he did not attend. Id. The
record shows that the administrative judge did precisely what she said she would
do in her order scheduling the hearing : “If the appellant fails to appear without
good cause, his appeal will be decid ed wi thout a hearing.” RF, Tab 8 at 3. The
appellant attended the prehearing conference on June 7, 2016, where in he agreed
to attend a VTC hearing on June 15, 2016. RF, Tab 18 at 1. At the conference,
the administrative judge informed the parties that the prehearing summary and
order would become final on June 13, 2016. Id. at 4. The appellant filed no
objection to the order. On June 15, 2016, two hours prior to the scheduled start
of the hearing, he filed a motion to suspend processing of the appeal and
requested that the administrative judge recuse herself. RF, Tab 19. He did not
appear at the designated VTC location, and the administrative judge cancelled the
hearing 30 minutes after it was scheduled to begin . RF, Tab 20. As stated above,
16
an administrative judge has broad discretion to c onvene a hearing as appropriate
and to regulate the course of the hearing . 5 C.F.R. § 1201.41 (b)(6); see 5 C.F.R.
§ 1201.43 (e) (“ A judge may cancel a scheduled hearing, or suspend or terminate a
hearing in progress, for contumacious conduct or conduct prejudicial to the
administration of jus tice on the part of the appellant or the appellant’ s
representative. ”). We find no abuse of discretion in the administrative judge’s
decision to cancel the hearing under the circumstances .
The administrative judge did not abuse her discretion in her trea tment of the
appellant’s motion for summary judgment.
¶25 The appellant filed a motion for summary judgment after the hearing was
cancelled because he believed that he could prove that the agency retaliated
against him. RPFR File, Tab 1 at 11; RF, Tab 23. The administrative judge did
not rule on the motion, and instead, she issued the remand initial decision slightly
more than 3 months later. RF, Tab 25. On review, the appellant asserts that the
administrative judge err ed by not rulin g on the motion. RPFR File, Tab 1
at 11-13. The Board , however, lacks the authority to grant summary judgment.
Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 30 (2007) (citing Denney
v. U.S. Postal Service , 66 M.S.P.R. 191 , 193 n.1 (1995)) . T he administrative
judge also did not ignore the appellant’s motion, and instead, treated it as a close
of record submission made pursuant to the order closi ng the r ecord . RID at 4;
RF, Tab 20 at 2 -3. We find no abuse of discretion in the administrative judge’s
handling of the appellant’s motion for summary judgment.
The appellant did not establish administrative judge bias.
¶26 Throughout his petition for revie w, the appellant asserts that the
administrative judge was biased against him and that she improperly denied his
motion that she recuse herself for bias.6 RPFR File, Tab 1 at 4 -6, 8, 10, 13-14;
6 The motion contained no affidavit supporting the appellant’s contentions. See Lee v.
U.S. Postal Service , 48 M.S.P.R. 274 , 280 -82 (1991) (holding that an allegation of bias
17
RF, Tab 19, Tab 20 at 2 . In making a claim of bias or prejud ice 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 her
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 fact that an administrative judge ultimately ruled in favor of the
agency, however, is insufficient evide nce of bias on her part. Hayden v. U.S.
Postal Service , 15 M.S.P.R. 296 , 300 (1983) , aff’d , 758 F.2d 668 (Fed. Cir. 1984)
(Table) ; Weaver v. Department of the Navy , 2 M.S.P.R. 129 , 133 (1980), review
denied , 669 F.2d 6 13 (9th Cir. 1982) (per curiam) .
¶27 We have reviewed the appellant’s allegations and the record , but we find no
evidence of any ruling , comment, or action by the administrative judge that would
show a deep -seated antagonism that would make fair judgment impossible. For
instance, the appellant asserts that, during his first post-remand conference, the
administrative judge deliberately misstated the law to telegraph her intention to
rule in the agency’s favor by telling the agency that its burden of proof, clear and
convincing evidence, was “a much, much lower standard” than preponderant
evidence. RPFR File, Tab 1 at 4 -5. The agency avers that , when the
administrative judge made this comment, she was referencing the preponderant
evidence standard instead. RPFR File, Tab 3 at 11. In any event, the
administrative judge accurately cited the case law s etting forth the burdens of
by an admini strative judge must be raised as soon as practicable after a party has
reasonable cause to believe that grounds for disqualification exist, and must be
supported by an affidavit). It was arguably deficient for this reason as well as on the
merits , though we note that the motion itself was signed under penalty of perjury. RF,
Tab 19 at 9.
18
proof in her written orders and decision . RID at 7; IAF, T ab 3 at 6; RF, Tab 18
at 2-3.
¶28 The appellant also asserts that , when he expressed his concerns about the
hearing venue , the administrative judge was condescending and that she was
disrespectful, unprepared, and unhelpful on other occasions, which a ffected his
ability to prosecute his case. RPFR File, Tab 1 at 5, 9 -10. We have examined the
administrative judge’s rulings and find them to be supported by the record. Even
if the appellant has accurately described the administrative judge’s tone and
manner, we find that his allegations are not enough to overcome the presumption
of honesty and integrity that accompanies administrative adjudicators. See, e.g.,
Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 19 (2016) (holding that
the a llegation that an administrative judge used a demeaning tone toward agency
counsel during the appeal was insufficient to overcome the presumption of
honest y and integrity that accompanies administrative adjudicators, even if
proven ). For all of these reasons, we thus affirm the findings in the remand
initial decision .
NOTICE OF A PPEAL 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 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
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 noti ce, the
Board cannot advise which option is most appropriate in any matter.
19
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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.
20
(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,
and your representative receives this decision before you do, then 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:
21
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal 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.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Cir cuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
22
If you submit a petition for judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEWIS_DARRYL_M_DC_1221_15_0676_B_1_FINAL_ORDER_2041519.pdf | 2023-06-15 | null | DC-1221 | NP |
3,026 | https://www.mspb.gov/decisions/nonprecedential/HANUSCHIK_PATTY_S_SF_1221_16_0236_W_1_FINAL_ORDER_2041523.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATTY S. HANUSCHIK,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-1221 -16-0236 -W-1
DATE: June 15, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patty S. Hanuschik , Pittsburgh, Pennsylvania, pro se.
Paul B. Taylor , APO , AP, 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
denied her request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of mat erial 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 dec ision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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
reflect the proper analysis for determining when allegations of a hostile work
environment constitute a covered personnel action under 5 U.S.C.
§ 2302 (a)(2)(A ), we AFFIRM the initial decision.2
We waive the filing deadline and accept the appellant’s untimely filed petition for
review for good cause shown.
¶2 The appellant’s petition for review is untimely filed by approximately
21 minutes. Petition for Review (PFR) File, Tabs 12-13. The Board will w aive
its filing deadline only upon a showing of good cause for the delay in filing.
Wiggins v. Department of the Air Force , 113 M.S.P .R. 443 , ¶ 8 (2010); 5 C.F.R.
§ 1201.114 (f). To establish good cause for an untimely filing, a party must show
that she exercised due diligence or ordinary prudence under the circumstan ces of
the case. Wiggins , 113 M.S.P.R. 443 , ¶ 8. In making a good cause determination,
the Board will consider the length of the del ay, the reasonableness of the
appellant’s excuse and her showing of due diligence, whether she is proceeding
pro se, and whether she has presented evidence of the existence of circumstances
2 During the pendency of this appeal, on December 12, 2017 , Congress enacted the
National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115 -91,
131 Stat. 1283. Section 1097 of t he NDAA amended various provisions of Title 5 of
the U .S. Code. Our decision in this appeal would be the same under both pre - and
post-NDAA law.
3
beyond her control that affected her ability to comply with the time limits or of
unavoidable casualty or misfortune that similarly shows a causal relationship to
her inability to timely file h er petition. Id.
¶3 Here, the appellant submitted her petition for review through e -Appeal
Online at 12:21 a.m. on April 25, 2017 —approximately 21 minutes past the
April 24, 2017 filing deadline. PFR File, Tabs 12 -13. She stated, under the
penalty of perjury, that she tried to electronically file her petition for review
before midnight on the due date but that “e -appeal kept failing.” PFR File,
Tab 13 at 4. Given the particular circumstances of this case, we find good cause
for the pro se appellant’s minimal filing delay . See Wiggins , 113 M.S.P.R. 443 ,
¶ 9 (finding good cause when the pro se appellant created his petition for review
in e -Appeal Online before the deadline but did not complete the electronic
submission until 4 minut es after the filing deadline) ; Social Security
Administration v. Price , 94 M.S.P.R. 337 , ¶ 7 (2003) (finding good cause when
agen cy counsel began sending the petition via facsimile on the due date but, due
to technical problems, failed to complete the submission until 34 minutes past the
filing deadline). In light of our finding that the appellant has established good
cause for her untimely filing , and because the agency has not alleged that it was
prejudiced by the 21 -minute filing delay, we find that waiver of the filing
deadline is appropriate. See Wiggins , 113 M.S.P.R. 443 , ¶ 9 .
The initial decision is modified to reflect the proper analysis for determining
when allegations of a hostile work environment constitute a covered personnel
action under 5 U.S.C. § 2302 (a)(2)(A).
¶4 Under both the Whistleblower Protection Enhancement Act (WPEA) and its
predecessor, the Whistleblower Protection Act (WPA), a “personnel action” is
defined to include, amon g other enumerated actions, “any other significant
4
change in duties, responsibilities, or working conditions.”3 5 U.S.C.
§ 2302 (a)(2 )(A)(xii). In Savage v. Department of the Army , 122 M.S.P.R. 612 ,
¶ 23 (2015), overruled in part by Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 23-25., the Board stated that a hostile work environment itself
may constitute a covered p ersonnel action under the WPA. In Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 16, however, the Board
clarified that, although the term “hostile work environment” has a particular
meaning in other contexts, allegations of a hostile work environment may
establish a personnel action in an IRA appeal only if they meet the statutory
criteria under 5 U.S.C. § 2302 (a)(2)(A) , i.e., constitute a significant change in
duties, responsibi lities, or working conditions. Thus, although the “significant
change” personnel action should be interpreted broadly to include harassment and
discrimination that could have a chilling effect on whistleblowing or otherwise
undermine the merit system, only agency actions that, individually or
collectively, have practical and significant effects on the overall nature and
quality of an employee’s workin g 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 .
¶5 In the initial decision, the administrative judge, who did not have the
benefit of the Board’s decision in Skarada , relied , in part, on case law relevant to
establishing a hostile work environment under Title VII. Initial Appeal File
(IAF), Tab 69, Initial Decision ( ID) at 21 -24 (citing Faragher v. City of Boca
Raton , 524 U.S. 775 , 787 -88 (1998) , and Gregory v. Department of the Army ,
114 M.S.P.R. 607 , ¶¶ 25, 31 (2010) ). In light of Skarada , however, reliance on
Title VII standards to determine whether agency actions amount to a personnel
action that may be the subject of an IRA appeal is incorrect. See Skarada ,
3 The relevant events occurred after the December 27, 2012 effective date of the WPEA.
Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the
WPEA to this appeal.
5
2022 MSPB 17 , ¶ 16. Accordingly, we modify the administrative judge’s
analysis of the appellant’s hostile work environment claim consistent with this
section.
¶6 The appellant alleged below that the agency subjected her to a hostile work
environm ent when management took the following actions against her: counseled
her five times within several months; “ostracized and demeaned [her] in front of
her co -workers”; ignored her requests for assistance and emails; yelled at her in
front of others; remov ed her “access to [information technology] tools that she
needed to adequately perform her duties”; told her in front of coworkers that her
assignment would not be extended; and told her t o register for the Priority
Placement Program even though she still had several months remaining in her
overseas tour.4 IAF, Tab 54 at 75 -77. In her equal employment opportunity
complaint and her responses to the agency’s interrogatories, the appellant further
alleged that the agency subjected her to a hostile work envir onment when, among
other related allegations, management officials undermined her relationships with
her subordinates, ignored abusive treatment of the appellant by her coworkers,
and “assault[ed]” her . IAF, Tab 13 at 16 -71, Tab 31 at 13 -31. The administ rative
judge found that, while the appellant may have personally felt humiliated or
threatened by the agency’s actions, she failed to present evidence regarding the
kind of pervasive, objectionable behavior that could objectively be considered a
change in working conditions sufficient to constitute a hostile work environment.
ID at 21 -24.
4 As part of her hostile work environment claim, the appellant also alleged that the
agency threatened to remove her, lowered her performance evaluations, denied her
request to extend her overseas tour, and reassigned her to a “doomed to fail” position.
IAF, Tab 54 at 75 -76. Because these actions could constitute personnel actions or
threatened personnel actions under 5 U.S.C. § 2302 (a)(2)(A) (iii), (iv), and (viii), we do
not consider them as part of the appellant’s claim that the agency subjected her to “any
other significant change in duties, responsibilities, or working conditions” under
section 2302(a)(2)(A) (xii) .
6
¶7 Considering the appellant’s allegations in light of Skarada , we agree with
the administrative judge’s determination that they do not establish a covered
personnel action . Regarding the appellant’s allegations that agency officials
yelled at her, humiliated her, mocked her, demeaned her, treated her in a
threatening manner, assaulted her, ignored abusive treatment directed at her, took
away tools necessary to complete her duties, and embarrassed or undermined her
in front of coworkers and subordinates, we find that she failed to provide
corroborating evidence and that her mere allegations are insufficient to establish
by preponderant evidence that the agency’s actions cons tituted harassment to such
a degree that her working conditions were significantly and practically impacted.
See Skarada , 2022 MSPB 17 , ¶ 23 (stating that , at the merits phase of an IRA
appeal, the appellant must provide sufficient information and evidence to allow
the Board to determine whether the agency’s alleged action or actions were
“significant”). In addition, the ap pellant has not shown that the agency’s
nondisciplinary counseling sessions, alleged deficiencies in responding to her
requests and emails, and instruction to register for the Priority Placement
Program so that she would be eligible to be placed at the end of her overseas tour
had practical and significant effects on the overall nature and quality of her
working conditions. Id., ¶ 29 (explaining that, in considering whether allegations
of a hostile working environment establish a covered personnel action, the Board
must consider whether the appellant has shown, by preponderant evidence, that
the agency’s actions, considered individually and collectively, had practical and
significant effects on the overall nature and quality of her working conditions,
dutie s, or responsibilities).
¶8 In light of the foregoing , we affirm, as modified to clarify the applicable
legal analysis and to supplement the factual findings, supra ¶ 7 , the
administrative judge’s determination that the appellant’s allegations regarding
hostile work environment do not establish a covered personnel action.
7
The appellant’s arguments on review provide no basis to disturb the initial
decision.
¶9 On review, the appellant argues that her attorney representatives violated
their “oath of office” to “protect” her, prevented her from providing unidentified
evidence in her appeal, and were unprepared, forgetful, and un responsive to her
emails and requests. PFR File, Tab 13 at 42, 44-45. It is well settled, however,
that t he presence of purportedly inadequate counsel does not constitute a ground
for reversal because the appellant is held responsible for the action s or inaction s
of her counsel. Sparks v. Department of the Interior , 62 M.S.P.R. 369 , 371
(1994) ; Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981).
Therefore, we find that the appellant’s allegations, even if true, provide no basis
to disturb the initial decision.
¶10 The appellant further appears to argue that the administrative judge
improperly denied her the hearing she wanted. PFR File, Tab 13 at 4 0. The
record reflects that the appellant, through counsel, withdrew her request for a
hearing and asked instead that the matter be decided on the basis of the written
record. IAF, Tab 48. The appellant reasoned that, given the complex legal and
factual issues and the voluminous record, written submissions “would allow the
parties to focus on the issues most relevant to the instant matter and succinctly
outline the law relevant to the underlying appeal and apply it to the facts
attendant to this appeal.” Id. at 4 -5. After notifying the appellant of the
alternative options available to her , including the right to a postponement of the
hearing or a dismissal of the appeal without prejudice to timely refiling , the
administrative judge granted her request to cancel the hearing and issued a
decision based on the parties’ written submission s. IAF, Tabs 50, 52. We find
that the appellant’s motion to withdraw her hearing request was clear,
unequivocal, decisive, and informed . T he administrative judge , therefo re,
properly granted her request after notifying her of the options available to her.
See Conant v. Office of Personnel Management , 79 M.S.P.R. 148 , 150 -51 (1998) .
8
¶11 The appellant also argues that the administrative judge was biased because
she “favored” the agency and was “overly friendly with Agency counsel while
becoming argumentative with [the appellant’s] counsel.” PFR File, Tab 13 at 42,
45. In making a claim of bias, an appellant must overcome the presumption of
honesty and integrity on the part of th e administrative judge . Protopapa v.
Department of Transportation , 14 M.S.P.R. 455 , 459 (1983 ). The appellant’s
conclusory allegations here a re insufficient to overcome the presumption of
honesty and integrity and therefore do not establish bias on the part of the
administrative judge . Id.
¶12 Finally, t he appellant raises a number of other arguments on review
generally challenging the administrat ive judge’s findings and weighing of the
evidence and alleging that the agency mistreated her in a variety of ways
unrelated to the accep ted issues in this IRA appeal. PFR File, Tab 13 at 41 -46.
We have considered these arguments but find that they provi de no basis to disturb
the administrative ju dge’s well -reasoned 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 on issues of
credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same).
¶13 Accordingly, we affirm the initial decision except as modified herein.
NOTICE OF APPE AL 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
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
10
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.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/CourtWebsites.aspx .
11
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then 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).
If so, and your 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 appeal s of
12
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 petit ion for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additiona l information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s R ules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, 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.
13
Contact inform ation for the courts of appeals can be 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 | HANUSCHIK_PATTY_S_SF_1221_16_0236_W_1_FINAL_ORDER_2041523.pdf | 2023-06-15 | null | SF-1221 | NP |
3,027 | https://www.mspb.gov/decisions/nonprecedential/ROTELLI_CECILIA_SF_315H_17_0113_X_1_FINAL_ORDER_2040810.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CECILIA ROTELLI,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-315H -17-0113 -X-1
DATE: June 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cecilia Rotelli , Auburn, Washington, pro se.
Basil R. Legg, Jr. , Esquire, North Charleston, South Carolina, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 This case is before the Board pursuant to a compliance initial decision of
the administrative judge finding the agency in partial noncompliance with a
settlement agreement. Rotelli v. Dep artment of the Navy , MSPB Docket No. SF-
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
315H -17-0113 -C-1, Compliance File, Tab 15, Complianc e Initial Decision (CID).
For the reasons discussed below, we now find the agency in compliance and
DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMP LIANCE
¶2 The appellant was terminated from her position in November 2016. Rotelli
v. Dep artment of the Navy , MSPB Docket No. SF -315H -17-0113 -I-1, Final Order
(July 15, 2022) ; Petition for Review (PFR) File, Tab 8 . The appellant filed an
appeal of her termination. Rotelli v. Dep artment of the Navy , MSPB Docket
No. SF-315H -17-0113 -I-1, Initial Appeal File ( IAF), Tab 1 . While the appeal
was pending, the parties entered into a settlement agreement. IAF, Tab 25. The
settlement agreement provided, in pertinent part:
(1) The Agency will rescind its Notice of Termination during
Probationary Period dated November 3, 2016 and will initiate
actions to cancel and remove from Appellant’s Official Personnel
File the SF -52 and S F-50 removing Appellant from Federal
Service as of November 3, 2016. The Agency will replace the
existing SF -50 with an SF -50 showing Appellant voluntarily
resigned from Federal service effective April 18, 2017.
Id. at 1. The administrative judge issued an initial decision dated February 17,
2017, entering the settlement agreement into the record for enforcement purposes
and dismissing the appeal. IAF, Tab 30 , Initial Decision at 3.
¶3 On October 31, 2017, the appellant filed a petition for review of the initial
decision, requesting that the Board “review the settlement agreement and the case
itself, and the deci sion to approve.” PFR File, Tab 2 at 4. The appellant also
claimed that the agency failed to comply with the settlement agreement by
updating her personnel file to reflect her voluntary resignation. Id. On July 15,
2022, the Board dismissed the petitio n for review as untimely filed, but forwarded
the appellant’s allegations of noncompliance to the regional office for docketing
as a petition for enforcement. Final Order at 5 -6; PFR File, Tab 8.
3
¶4 In a January 17, 2023 compliance initial decision, after providing the
parties with the opportunity to file evidence and argument regarding the
compliance issue, the administrative judge found that the agency had not
complied, in part, with the settlement agreement, because it failed to expunge all
references to the appellant ’s November 3, 2016 termination from her Official
Personnel File (OPF). CID at 7. Although the agency had removed from the
appellant’s OPF the Standard Form ( SF) 50 and SF -52 which referred to the
November termination , the administrative judge found that the OPF still
contained four documents which clearly referred to appellant’s November 3, 2016
termination “in the context of FEHB [Federal Employee Health Benefits] and
Federal Employees’ Gorup [sic] Life In surance (FEGLI) coverage, and a narrative
form issued in lieu of an SF -1150, Record of Leave Data, for employee data
transfer.” Id. The administrative judge ordered the agency to “expunge
references to the appellant’s November 3, 2016 termination from he r OPF, i.e.,
delete entirely the four pages described above, or redact the extant references on
those pages, and to ensure no additional references exist in her OPF.” CID at 10.2
ANALYSIS
¶5 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 s ettlement agreement
that has been entered into the record in the same manner as a final Board decision
2 The compliance initial decision informed the agency that, if it decided to take the
actions required by the decision, it must submit to the Clerk of the Board, within the
time limit for filing a petition for review under 5 C.F.R. § 1201.114 (e), a statement that
it has taken the actions identified in the compliance initial decision, along with
evidence establishing that it has taken those actions. CID at 10 -11; see 5 C.F.R.
§ 1201.183 (a)(6)(i). The compliance initial decision also informed the parties that they
could file a petition for review if they disagreed with the compliance initial decision.
CID at 11; see 5 C.F.R. §§ 1201.114 (e), 1201.183(a)(6)(ii). Neither party petitioned
for review of the compliance initial decision.
4
or order. Id. In a proceeding to enforce a settlement agreement, the party
alleging noncompliance with the agreement has the burden of proof. Modrowsk i
v. Dep artment of Veterans Affairs , 97 M.S.P.R. 224 , ¶ 7 (2004). However, when
an appellant makes specific allegations of noncom pliance, as appellant did here, it
is the agency’s burden to produce relevant evidence within its control showing
compliance with its agreement or showing good cause for its failure to comply.
Id.
¶6 On February 15, 2023, the agency filed a statement of compliance
representing that it had sent the required paperwork to the Navy Office of Human
Resources (OHR) for removal or redaction of the identified documents and
verification that no other documents in appellant’s OPF referred to the
November 3, 2016 termination ; and stating that agency counsel awaited
verification from OHR that these actions had been taken. Rotelli v. Dep artment
of the Navy , MSPB Docket No. SF -315H -17-0113 -X-1, Compliance Referral File
(CRF), Tab 1 at 3.
¶7 After requesting and receiving an extension of time, the agency filed a
supplement to the statement of compliance on March 6, 2023. CRF, Tab 5.
Attached to the supplement is a declaration by an agency paralegal attesting to the
actions the agency took to comply with the January 17, 20 23 compliance initial
decision, including expunging the references to the November 3, 2016
termination cited by the administrative judge, and searching for, and removing,
other references to the termination in the OPF. Id. at 6-7. The agency also
attache d supporting documents , which include a copy of the final revised and
redacted version of appellant’s OPF. Id. at 6-224 On March 14, 2023 , the
appellant filed a “Response to the Acknowledgement Order dated February 16,
2023 ,” asking that the Board consid er the “ramifications and repercussions”
resulting from the agency’s non-compliance and requesting that the agency send
5
her “copies of education and certificates obtained” during her employment.3
CRF, Tab 6 at 11.
¶8 In its submissions, the agency produced evidence demonstrating that it has
removed all references to the November 3, 2016 termination from appellant’s
OPF and thus complied with the settlement agreement. The appellant has not
rebutted this evidence. Acco rdingly, we find the agency in compliance with the
settlement agreement and the final order in the underlying case, and DISMISS the
petition for enforcement.4
¶9 This is the final decision of the Merit Systems Protection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. Yo u
must file your attorney fees motion with the office that issued the initial decision
on your appeal .
3 To the extent the appellant seeks to require the agency to send her copies of her
“education and certificates obtained ,” CRF, Tab 6 at 10, she has no authority to impose
additional obligations on the agency outside of those established in the existing
settlement agreement.
4 The agency’s June 13, 2023 request for a status conference is denied based on our
finding of compliance.
6
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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:
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
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
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you 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 described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for 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
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.
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 | ROTELLI_CECILIA_SF_315H_17_0113_X_1_FINAL_ORDER_2040810.pdf | 2023-06-14 | null | SF-315H | NP |
3,028 | https://www.mspb.gov/decisions/nonprecedential/ROSARIO_FABREGAS_JOSE_E_NY_0752_17_0147_I_1_FINAL_ORDER_2040859.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE E. ROSARIO -FABREGAS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
NY-0752 -17-0147 -I-1
DATE: June 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose E. Rosario -Fabregas , San Juan, Puerto Rico, pro se.
Elizabeth Moseley and Elizabeth Vavrica , Jacksonville, Florida, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The ap pellant has filed a petition for review of the initial decision, which
dismissed his constructive suspension appeal for lack of jurisdiction . On petition
for review, the appellant argues that the administrative judge erred in construing
his appeal as a co nstructive suspension. He further argues, in the alternative, that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 administrative judge erred in finding that he was not constructively suspended
because his decision to use leave for the alleged constructive suspension period
was involuntary and the result of improper agency actions . 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 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 granting
the petition for review. Therefore, we DENY the petition for review . Except as
expressly MODIFIED by this Final Order to address the time period before
September 27, 2016, we AFFIRM the initial decision .
¶2 Although the appellant’s arguments d o not provide a basis for review, we
find it necessary to clarify the basis for concluding that the appellant was not
constructively suspended for a portion of the alleged constructive suspension
period —the per iod from September 6 -26, 2016 . The agency att empted to return
the appellant to duty on September 6, 2016, after imposing his Board ordered
30-day suspension. Initial Appeal File (IAF), Tab 4 at 26 -27, Tab 17 at 7 ; see
Rosario -Fabregas v. Department of the Army , MSPB Docket No. NY -0752 -13-
0142 -I-2, F inal Order, ¶ 49 (July 1, 2016) . The appellant has identified no
medical documentation showing that his medical condition had changed between
2012, when the agency last refused to allow him to return to duty because of his
medical condition, and September 6, 2016 . On September 29, 2016, he submitted
a note, signed on September 27, 2016, from his treating psychiatrist certifying
3
that he was medically unable to return to duty. IAF, Tab 4 at 1 62-63. Thus , for
the period of September 6-26, 2016, the agency’s request effectively was a
continuation of its previous requests for medical documentation issued in 2011
and 2012. See Rosario -Fabregas v. Department of the Army , 122 M.S.P.R. 468,
¶¶12 -19 (2015 ), aff’d , 833 F.3d 1342 (Fed. Cir. 2016) .
¶3 The Board fo und nothing improper about the agency’s decision not to return
the appellant to duty in 2011 and 2012, despite his request to return, until he
provided additional medical documentation confirming his ability to work with or
without a reasonable accommodati on.2 Id. The Board further found that the
agency’s request for medical documentation was an appropriate response to the
appellant’s reasonable accommodation request, was consistent with the agency’s
leave procedures and regulations, and was in compliance with the American s with
Disabilities Act Amendments Act of 2008 (ADAAA) .3 Id. Even if the appellant
was no longer a threat, as previously feared, id., ¶ 17, the question of whether his
ability to perform the essential functions of his job was impaired by his
psychiatric co ndition had not been resolved. IAF, Tab 4 at 26 -29. We therefore
find that the agency did not act improperly when it continued to request a medical
2 The appellant is collaterally estopped from relitigating issues related to his absences
in 2011 and 2012 because: (1) they are identical to those at issue here; (2) those issues
were actually litigated; (3) those issues were necessary to the dismissal of his prior
constructive suspension appeal; and (4) he had a full and fair opportunity to litigate
those i ssues in that action. See Rosario -Fabregas , 122 M.S.P.R. 468 , ¶¶8 -19; McNeil v.
Department of Defense , 100 M.S.P.R. 146 , ¶ 15 (2005) (setting forth the four factor test
for determining when it is appropriate to apply the collateral estoppel doctrine).
3 A disability -related inquiry or medical examination may be job -related and consistent
with business necessity, and thereby permissible under the ADAAA, if an employer has
a reasonable belief, bas ed on objective evidence, that: (1) an employee’s ability to
perform essential job functions will be impaired by a medical condition; or (2) an
employee will pose a direct threat due to a medical condition. Rosario -Fabregas ,
122 M.S.P.R. 468 , ¶ 14. Moreover, an agency may request information in order to
make a decision on a reasonable accommodati on request. Id., ¶ 13; 42 U.S.C.
§ 12111 (9)(B) ( providing that a modified or part -time work schedule is a type of
reasonable accommodation); see also 29 C.F.R. § 1630.2 (o)(2)(ii) (same).
4
certification clarifying the appellant’s ability to return to duty in September 2016 ,
and for refusing his return when he failed to provide it. Id. at 26 -29, 87 -88,
146-48. Rather, as the Board found in the appellant’s compliance matter
regarding the same alleged failure to return to duty, the agency’s request for
medical information was reasonable. Rosario -Fabrega s v. Department of the
Army , MSPB Docket No. NY -0752 -13-0142 -C-1, Initial Decision at 5-7, 10
(May 11, 2017) , aff’d , Order, ¶ 1 (Dec. 5, 2022 ); see generally Senior v. U.S.
Postal Service , 85 M.S.P.R. 283 , 287 -88 (2000) (recognizing that a physical
inability to perform constitutes a legitimate reason for an agency’s failu re to
return an appellant to her position after cancellation of an adverse action);
Connor v. U.S. Postal Service , 50 M.S.P.R. 389 , 392 -93 (1991) (finding that an
agency did not violate the Board’s reinstatement order by requiring the appellant
to undergo a fitness -for-duty exam or submit current medical documentation
before returning him to duty after a lengthy absence and prior history o f medical
inability to work).
¶4 Accordingly, the appellant has not shown that he was constructively
suspended for this or any of the other time periods at issue. The administrative
judge’s failure to properly address his allegations regarding the time perio d
before September 27, 2016 , in particular is not a basis for review. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281 , 282 (19 84) (explaining that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
NOTICE OF APPEAL 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 review rights included in final decisions. As indicated in the notice, the
Board cannot ad vise 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 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 Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
6
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 involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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 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
8
of appeals of competen t jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Revie w Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circu it court 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROSARIO_FABREGAS_JOSE_E_NY_0752_17_0147_I_1_FINAL_ORDER_2040859.pdf | 2023-06-14 | null | NY-0752 | NP |
3,029 | https://www.mspb.gov/decisions/nonprecedential/ROSARIO_FABREGAS_JOSE_NY_1221_11_0253_B_1_FINAL_ORDER_2040965.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE ROSARIO -FABREGAS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
NY-1221 -11-0253 -B-1
DATE: June 14, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose Rosario -Fabregas , San Juan, Puerto Rico, pro se.
Elizabeth Vavrica , Jacksonville, Florida, 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 remand 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 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
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
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).
¶2 The appellant filed the instant IRA appeal in June 2011 . Rosario -Fabregas
v. Department of the Army , MSPB Docket No. DC -1221 -11-0253 -W-1, Initial
Appeal File (IAF), Tab 1 at 1-41. The administrative judge dismissed the appeal
without prejudice pending a final decision on the appellant’s removal appeal ,
which was pending before the Board on petition for review . IAF, Tab 14, Initial
Decision. Subsequently, the Board granted the appellant’s petition for review in
the removal appeal and o rdered the agency to cancel that adverse action because
it had violated the appellant’s due process rights . Rosario -Fabregas v.
Department of the Army , MSPB Docket No. NY -0752 -10-0127 -I-1, Final Order
(Nov. 30, 2011).
¶3 After the final decision was issued in the removal appeal, the appellant
refiled the instant IRA appeal. Rosario -Fabregas v. Department of the Army ,
MSPB Docket No. DC -1221 -11-0253 -W-2, Refiled Appeal File (RAF ), Tab 1.
After further developing the record, the administrative judge issued an initial
decision dismiss ing the IRA appeal for lack of jurisdiction. RAF, Tab 17, I nitial
Decision ( W-2 ID) at 1. The administrative judge found that the appellant had
raised bef ore the Office of Special Counsel (OSC) the following personnel
actions: “[H]is removal from his position and other matters such as his placement
3
on administrative leave before the removal took effect and the agency’s
mishandling of certain requests that h e made under the Freedom of Information
Act (FOIA).” W-2 ID at 2. The administrative judge found that the agency’s
handling of the appellant’s FOIA requests did not constitute a personnel action
over which the Board has jurisdiction in an IRA appeal. W-2 ID at 5-6. She also
found that res judicata preclude d the appellant from bringing a whistleblower
retaliation claim pertaining to his removal, but did not preclude a whistleblower
retaliation claim pertaining to his placement on administrative leave. W-2 ID
at 5-8. However, she found that the appellant failed to present nonfrivolous
allegations of a protected disclosure. W-2 ID at 6-7.
¶4 The appellant filed a petition for review. Rosario -Fabregas v. Department
of the Army , MSPB Docket No. NY -1221 -11-0253 -W-2, Petition for Review File,
Tab 1. The Board remanded the IRA appeal for further adjudication.
Rosario -Fabregas v. Department of the Army , MSPB Docket No. NY -1221 -11-
0253 -W-2, Remand Order (Dec. 30, 2013) . The Board found that the appellant
made a nonfrivolous alleg ation of a protected disclosure and a nonfrivolous
allegation that his disclosure was a contributing factor in the agency placing him
on administrative leave . Id. However, the Board determined that the appellant
had not yet prove n that he exhausted his administrative remedies as to the
disclosure in question . Id. at 7 -8. Therefore, the Board remanded for the
administrative judge to address that issue. Id.
¶5 On remand, the administrative judge provided the appellant with the
oppor tunity to prove exhaustion with OSC. Rosario -Fabregas v. Department of
the Army , MSPB Docket No. NY -1221 -11-0253 -B-1, Remand File ( RF), Tab 7.
After both parties responded, the administrative judge issued a remand initial
decision, again dismissing the IRA appeal for lack o f jurisdiction. RF, Tab 10 ,
Remand Initial Decision (RID) . She found that the appellant raised his placement
on ad ministrative leave with OSC only in connection with an alleged denial of
due process and he did not allege that the agency placed him on administrative
4
leave in reprisal for whistleblowing . RID at 5-6. Therefore, she found that the
appellant failed to pr ove that he exhausted his whistleblower retaliation claim in
connection with his placement on administrative leave . Id.
¶6 The appellant has filed a petition for review of the remand initial decision,
the agency has responded, and the appellant has replied . Rosario -Fabregas v.
Department of the Army , MSPB Docket No. NY -1221 -11-0253 -B-1, Remand
Petition for Review (R PFR ) File, Tabs 1, 5-6. The Board issued an order
requesting more information from the appellant, but he failed to submit a timely
response. RPFR File, Tab 7.2
The scope of this IRA appeal is limited .
¶7 All of the events at issue in this IRA appeal occurred during the period
leading up to the appellant’ s 2010 removal, prior to the effective date of the
Whistleblower Protection Enhancement Act of 2012 ( WPEA ). E.g., IAF, Tab 1.
Therefore, it is the Whistleblower Protection Act (WPA) that governs, limiting
the scope of this IRA appeal to claims of whistleblower retaliation covered by
5 U.S. C. § 2302 (b)(8). See Miller v. Federal Deposit Insurance Corporation ,
122 M.S.P.R. 3 , ¶¶ 13 -15 (2014) (recognizing that, effec tive December 27, 2012,
the WPEA expanded the scope of IRA appeals to include protected activities
falling under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) , but
declining to apply this expansion retroactively) , aff’d , 626 F. App’x 261 (Fed.
Cir. 2015) ; Fisher v. Department of Defense , 47 M.S.P.R. 585 , 587 -88 (1991)
(explaining that, under the WPA, an individual was o nly entitled to pursue an
IRA appeal for whistleblower reprisal under 5 U.S.C. § 2302 (b)(8)). Therefore,
we cannot address the appellant’s allegations that the agency violated 5 U.S.C.
2 The Board’s order requested additional information regarding whether the appellant
made nonfrivolous allegations that he made protected disclosures that were a
contributing factor in the personnel actions at issue in this appeal. RPFR File, Tab 7.
Because we find that the appellant failed to prove exhaustion, we do not reach the
issues that were the subject of the order.
5
§ 2302 (b)(9) by retaliating against him based on his prior grievance or assisting
others in their complaints . See, e.g ., RAF, Tab 12 at 37-39. Similarly, we cannot
address the appellant’s allegations of discrimination . See, e.g ., RAF, Tab 15 at 9;
RF, Tab 6 at 13, 33 -34. Discrimination claims do not provide an independent
basis for Board jurisdiction and they cannot be adjudicated in an IRA appeal.
Smets v. Department of the Navy , 117 M.S.P.R. 164 , ¶ 14 (2011), aff’d per
curiam, 498 F. App’ x 1 (Fed. Cir. 2012) ; see Wren v. Department of the Army ,
2 M.S.P.R. 1, 2 (1980) (explaining that prohibited personnel practices under
5 U.S.C. § 2302 (b) are not an independent source of Board jurisdiction ), aff’d ,
681 F.2d 867 , 871 -73 (D.C. Cir . 1982).
¶8 Separately, we recognize that a significant portion of the appellant’s
petition for review addresses other appeals he has filed with the Board , pertaining
to events that occurred after the filing of the instant IRA appeal . RPFR File,
Tab 1 at 9-14; see, e.g. , Rosario -Fabregas v. Department of the A rmy, MSPB
Docket No. NY -0752 -13-0142 -I-2, Final Order (July 1, 2016) (affirming, as
modified, the initial decision, which mitigated the appellant’s February 2013
removal to a 30 -day suspension). We decline to consider arguments related to his
other appeal s, as the y are not presently before us.
¶9 Finally, we recognize that the administrative judge properly found that the
appellant’s claims relating to his 2010 removal are barred by res judicata and that
the agency’s handling of his FOIA requests are not a per sonnel action for
purposes of this IRA appeal. W-2 ID at 5 -6. Therefore, the only personnel action
still before us in this IRA appeal is the appellant’s placement on administrative
leave.3
3 At times during the processing of this appeal, the Board also has referred to the
appellant’s proposed removal as a separate personnel action. Remand Order at 2; RPFR
File, Tab 7. However, the administrative judge did not address the proposed removal
claim either before or after remand, and the appellant has not a rgued on petition for
review that the administrative judge erred in failing to address that claim. We therefore
6
The appellant failed to meet his jurisdictional burden.
¶10 The Board has jurisdiction over an IRA appeal if an appellant has exhausted
his administrative remedies before OSC and makes nonfrivolous allegations that:
(1) he engaged in whistleblowing activity by making a protected disclosure ; and
(2) the disclosure w as a contributing factor in the agency’s decision to take or fail
to take a personnel action. Shibuya v. Department of Agriculture , 119 M.S.P.R.
537, ¶ 25 (2013) . Under 5 U.S.C. § 1214 (a)(3), administrative remedies must be
exhausted by seeking corrective action from OSC before seeking corrective action
from the Board. The substantive requirements of exhaustion are met when an
appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 10. The
purpose of the exhaustion requirement is to give OSC the opportunity to take
corrective action before involving the Board in the case. Id. An appellant may
demonstrate exhaustion t hrough an initial OSC complaint or correspondence with
OSC. Id., ¶ 11. Exhaustion may also be proved through other sufficiently
reliable evidence, such an affidavit or declaration attesting that the appellant
raised with OSC the substance of the facts in the Board appeal. Id. The appellant
must prove exhaustion with OSC by preponderant evidence, not just nonfrivolous
allegations. Id.
The appellant failed to exhaust the claim that his placement on
administrative leave was in retaliation for whistleblowing .
¶11 The administrative judge dismissed the appeal after remand on the basis that
the appellant failed to exhaust his claim that whistleblowing contributed to his
placement on administrative leave. RID at 5-6. On review, the appellant argues
that he met the exhaustion requirement by raising his placement on administrative
leave, generally, in his complaints to OSC. RPFR File, Tab 1 at 5. We are not
persuaded. We agree with the administrative judge’s conclusion that the
will not consider that claim. See 5 C.F.R. § 1201.115 (“The Board normal ly will
consider only issues raised in a timely filed petition or cross petition for review.”).
7
appellant failed to exhaust a claim that his placement on administrative leave was
whistleblower retaliation. RID at 6.
¶12 While the retaliation described in the appellant’s clarified allegations to
OSC and subsequent follow -up involved other matters, his references to
admi nistrative leave appear to implicate his allegations of a due process violation,
not whistleblower retaliation . RAF, Tab 12 at 40; RF, Tab 6 at 21 -24. OSC’s
response letters indicate that it also interpreted the appellant’s claim concerning
administrativ e leave as alleging due process violation s, not whistleblower
retaliation. RF, Tab 6 at 7, 34, 37 . Therefore, the appellant failed to meet his
burden of proving , by preponderant evidence, that h e gave OSC a sufficient basis
to pursue an investigation into whether his placement on administrative leave
constituted retaliation , satisfying the exhaustion requirement . See Chambers ,
2022 MSPB 8 , ¶ 10.
¶13 Because we find that the appellant did not exhaust his whistleblower
reprisal claim regarding the only remaining personnel action before the Board in
this IRA appeal, we affirm the remand initial decision dismissing the appeal for
lack of jurisdiction.
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
revie w and 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 a dvice 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
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 i n the notice, the
Board cannot advise which option is most appropriate in any matter.
8
jurisdiction. If you wish to seek review of this final decision, you s hould
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefull y each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more inform ation.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your p etition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s we bsite, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono represent ation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discri mination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this deci sion before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a dis abling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the F ederal Circuit or any other circuit court 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
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 .
Contact information for the courts of appeals can be 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 | ROSARIO_FABREGAS_JOSE_NY_1221_11_0253_B_1_FINAL_ORDER_2040965.pdf | 2023-06-14 | null | NY-1221 | NP |
3,030 | https://www.mspb.gov/decisions/nonprecedential/GRAFKE_TIMOTHY_W_DE_0752_17_0252_I_1_FINAL_ORDER_2040470.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY W. GRAFKE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0752 -17-0252 -I-1
DATE: June 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert J. Harrison , Oklahoma City, Oklahoma, for the appellant.
Stacy Fratzel , Bonner Springs, Kansas, for the appellant.
Christine Beam , Esquire, and Michael E. Anfang , Esquire, Kansas City,
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 initial decision, which
sustained his removal for misconduct . 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
argues that the administrative judge should have assessed specification 1 under
Metz v. Department of the Treasury , 780 F.2d 1001 (Fed. Cir. 1986) , and that the
administrative judge erred in his credibility determinations regarding
specification 2. The appellant also contests the administrative judge ’s analysis of
his due process , harmful error , and disability discrimination defenses. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute 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 materia l evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the 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 AFF IRM 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
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.
3
appropriate for your situation and the rights described below do not represe nt a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If yo u have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
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
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 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.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GRAFKE_TIMOTHY_W_DE_0752_17_0252_I_1_FINAL_ORDER_2040470.pdf | 2023-06-13 | null | DE-0752 | NP |
3,031 | https://www.mspb.gov/decisions/nonprecedential/MITCHELL_JEFFREY_NAPOLEON_AT_0752_19_0659_I_1_FINAL_ORDER_2040512.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY NAPOLEON MIT CHELL,
Appellant,
v.
DEPARTMENT OF THE ARMY ,1
Agency.
DOCKET NUMBER
AT-0752 -19-0659 -I-1
DATE: June 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Vicki L. Fuller , Redstone Arsenal, Alabama, for the appellant.
Kathryn R. Shelton , Redstone Arsenal , Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant h as filed a petition for review of the initial decision, which
affirmed the appellant’s indefinite suspension based on the suspension of his
1 We grant the agency’s unopposed request to correct its docketed party name from
“Department of Defense” to “Department of the Army.” Initial Appeal File, Tab 7
at 6 n.1, Tab 17 at 3.
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
eligibility to access classified information . On petition for review, the appellant
renews his argument that the agency committed race discrimination when it
suspended him instead of carrying him in administrative leave status. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision conta ins 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 peti tioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filing s in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. In particular, we agree with the
administrative judge that the agency provided a legitimate reason for treating th e
appellant differently than a Caucasian employee whose eligibility to access
classified information was previously suspended, and that the appellant has
provided insufficient evidence to show that race played any part in the agency’s
decision. Therefore, we DENY the petition for review. E xcept as expressly
MODIFIED to correct the docketed agency name , we AFFIRM the initial
decision.
NOTICE OF APPEAL RIG HTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decisi on in this matter. 5 C.F.R. § 1201.113. You may obtain
3 Since the i ssuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such rev iew and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefull y each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more inform ation.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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
4
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
5
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. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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
6
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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
4 The original statutor y provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act i s retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MITCHELL_JEFFREY_NAPOLEON_AT_0752_19_0659_I_1_FINAL_ORDER_2040512.pdf | 2023-06-13 | null | AT-0752 | NP |
3,032 | https://www.mspb.gov/decisions/nonprecedential/HENDRICKSON_MONICA_A_DE_1221_17_0012_W_1_FINAL_ORDER_2040580.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MONICA A. HENDRICKSO N,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -17-0012 -W-1
DATE: June 13, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua L. Klinger , Esquire, Denver, Colorado, for the appellant.
Pam Florea , Omaha, N ebraska, for the appellant.
Michael E. Anfang , Kansas City, 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 initial decision, which
denied her request for corrective action. 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 decisio n 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 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 es tablished 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 VACATE the administrative judge ’s finding
that the appellant ’s appearance as a potential witness at a June 2015 protective
order hearing constituted protected activity under 5 U.S.C. § 2302 (b)(9)(B) , we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is employed a s a GS -9 Medical Instrument Technician at the
agency’s Nebraska Western Iowa Health Care System in Omaha, Nebraska.
Initial Appeal File (IAF), Tab 1 at 1 , Tab 14 at 4 , Tab 19 at 24. The appell ant
filed a complaint with the O ffice of Special Counsel (OSC) alleging that she
made the following disclosures or engaged in the following protected activities:
(1) i n January and February 2015, she provided statements to the agency ’s Equal
Employment Opportunity (EEO) manager during an interview for an internal
agency “climate assessment ” investigation; (2) on May 7, 2015, she provided
testimony before an Administrative Investigation Board (AIB); and (3) on June 8,
2015, she was present at an “order of protection ” hearing at a county courthouse
to offer testimony in support of a fellow employee. IAF, Tab 1 at 5 -13. In
3
retaliation for these alleged disclosures or protected activities, the appellant
asserted that the agency provided her with a lowered “fully successful ” annual
performance evaluation for fiscal year 2015 after several consecutive years of
being rated as “outstanding. ” Id. at 10 -12. In her complaint to OSC, t he
appellant also detailed a number of negative interactions she had with colleagues
and supervisors following these events, and indicated that she desired to work in
a “non-hostile environment. ” Id. at 10-11. After receiving OSC ’s close -out letter
informing her of her right to seek corrective action from the Board, id. at 14 -15,
the appellant timely filed the instant individual r ight of action (IRA) appeal, IAF,
Tab 1.
¶3 After holding the appellant ’s requested hearing, the administrative judge
issued an initial decision denying her request for corrective action. IAF, Tab 30,
Initial Decision (ID) at 2, 15. The administrative judge first found that the
appellant exhausted her administrative remedi es with OSC regarding the
above -identified disclosures or activities, and identified the personnel actions the
appellant was challenging as her receipt of a “fully successful ” performance
rating for fiscal year 2015, and her claim that she was subject to a retaliatory
“hostile work environment. ” ID at 4; IAF, Tab 10 at 6 -7. Nonetheless, the
administrative judge determined that the appellant failed to meet her prima facie
burden for establi shing her claims of whistleblower retaliation. ID at 5 -15.
Specifically, the administrative judge determined that the appellant did not make
any protected disclosures or engage in any protected activities by being
interviewed as a part of the EEO climate assessment. ID at 5 -10. The
administrative judge also found that the appellant did not establish any protected
disclosures or activities in relation to her participation in the AIB proceedings.
ID at 10 -12. Finally, the administrative judge determined that the appellant ’s
appearance as a witness at a June 8, 2015 protective order hearing was a protec ted
activity under 5 U.S.C. § 2302(b)(9)(B), but that the appellant had failed to
demonstrate that it was a contributing factor in any of the actions challenged in
4
the appeal. ID at 13 -15. Consequently, the administrative judge denied the
appellant ’s request for corrective action. ID at 2, 15.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The appellant has filed a timely petition for review in which she challenges
the administrative judge ’s findings that she did not make any protected
disclosures or engaged in any protected activities by participat ing in the climate
assessment and the AIB proceedings. Petition fo r Review (PFR) File, Tab 3
at 7-12. Regarding the protective order hearing, the appellant challenges the
administrative judge ’s contributing factor determination and his conclusion that
none of the officials who were responsible for her lowered performance rating
had any motive to retaliate against her because of her purported disclosures or
protected activities. Id. at 12 -13. The agency has filed a response in opposi tion
to the petition for review , and the appellant has not filed a reply. PFR File,
Tab 5.
The administrative judge correctly determined that the appellant ’s disclosure of
her supervisor ’s sexual comments and his assertion that he wished for a physical
altercation with his subordinate were not disclosures or activities protected under
5 U.S.C. § 2302 (b)(8) or (b)(9).
¶5 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies b efore OSC and makes nonfrivolous allegations that
(1) she made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D),
and (2) the disclosure or protected activity was a contributing factor in the
agency ’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a). Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016).
¶6 On review, the appellant generally asserts that the administrative judge
erred in concluding that the comments she provided during the climate assessment
and the AIB did not constitute disclosures or activities protected by 5 U.S.C.
§ 2302 (b)(8) or (b)(9), but she does not specify how the administrative judge
5
erred in his assessment. PFR File, Tab 3 at 8 -12. As the administrative judge
correctly noted, the Board has regularly held that allegations of sexual
discrimination and harassment do not constitute protected disclosures of
wrongdoing outlined in section 2302(b)(8), because they pertain to matters of
discrimination covered by 5 U.S.C. § 2302 (b)(1)(A) and are actionable through
other administrative mechanisms, such a s by filing an EEO complaint. ID at 6 -7;
see McDonnell v. Department of Agriculture , 108 M.S.P.R. 443 , ¶ 22 (2008);
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 t itle VII, even if made outside the grievance or EEO
processes, do not constitute protected whistleblower activity under
secti on 2302(b)(8) because they pertain to matters of discrimination covered by
section 2302(b)(1)(A)); Mitchell v. Department of the Treasury , 68 M.S.P.R. 504 ,
510 (1995) ( “[A]n employee ’s claim of sexual harassment . . . is not a protected
disclosure under 5 U.S.C. § 2302 (b)(8) because such a claim is more
appropriately resolved under the equal employment opportunity process .”).
¶7 Additionally, as the administrative judge correctly observed and the
appellant does not contest, she was not seeking to remedy a violation of 5 U.S.C.
§ 2302 (b)(8) by disclosing the sexual remarks by her supervisor during either the
climate assessment or the AIB testimony, and thus her activity was not protected
under 5 U.S.C. § 2302 (b)(9 )(A). ID at 7 -8; see 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).
¶8 Regarding the appellant ’s statements during the climate assessment
interview and the AIB investigation that her supervisor stated that he wished his
subordinate would “just f ---ing hit [him], ” the adm inistrative judge carefully
evaluated the content of the statements the appellant provided during both
investigations and determined that the appellant could not have reasonably
believed that such statements constituted wrongdoing of the type described in
6
section 2302(b)(8). ID at 8-10. He also concluded that the appellant was not
seeking to remedy whistleblower reprisal by reporting that comment during either
the climate assessment or the AIB interview so the statements could not have
constituted protect ed activity under section 2302(b)(9)(A). ID at 8 -10.
Additionally, the administrative judge concluded that the appellant had provided
no evidence demonstrating that anyone responsible for the contested personnel
actions was aware of the purported disclos ure. ID at 10-11; see 5 U.S.C.
§ 1221 (a); Mudd , 120 M.S.P.R. 365 , ¶ 7. Ot her than the appellant’s asserting that
these findings were in error, PFR F ile, Tab 3 at 8-10, and restating her claim that
a number of agency officials were aware of her purported disclosures, id. at 9, the
appellant does not offer contrary evidence or ar gument to either finding on
review, and we see no reason to disturb them.
¶9 Finally, the appellant argues that her participation in the climate assessment
and the AIB were “for the benefit of ” a co-worker. PFR File, Tab 3 at 9-10. As
an initial matter, as the administrative judge noted in an order finding jurisdiction
dated October 27, 2016, the appellant specifically admitted that she had not
“formally assisted any individual ” at that time, which the administrative judge
interpreted as an admission that th e appellant was not raising a claim under
5 U.S.C. § 2302 (b)(9)(B) regarding her participation in the climate assessment or
the AIB investigation. IAF, Tab 10 at 8; Tab 6 at 5 -6. Nonetheless, t o whatever
extent the appellant is arguing that her participation in the climate assessment
constituted protected activity under 5 U.S.C. § 2302 (b)(9)(B), the administrative
judge also considered and rejected this claim, finding that by simply speaking
with the EEO manager during the agency -initiated climate assessment, the
appellant was not “testifying for or otherwise la wfully assisting any individual in
the exercise of any right referred to in subp aragraph [ 5 U.S.C. § 2302 (b)(9)](A)(i)
or (ii) ,” and we see no reason to disturb this finding on review. ID at 7-8; see
5 U.S.C. § 2302 (b)(9)(A) -(B); Graves v. Department of Veterans Affairs ,
123 M.S.P.R. 434 , ¶ 14 (2016) (concluding that participating in “an
7
agency -initiated [AIB] investigation ” did not constitute “the exercise of an
appeal, complaint, or grievance right ”).
The administrative judge correctly determined that the appellant failed to
establish a prima facie claim of retaliation for her AIB in vestigation testimony.
¶10 Regarding the appellant ’s supervisor ’s statement to her that he was “going
to clean a couple of [his] guns and [sight] them in ” over the weekend, the
administrative judge determined that , even if the appellant ’s reporting of that
statement during the AIB investigation was a disclosure under 5 U.S.C.
§ 2302 (b)(8), she nonetheless failed to meet her prima facie burden because she
could not establish that the disclosure was a co ntributing factor in any of the
contested personnel actions. ID at 11 -12. On review, the appellant challenges
the administrative judge ’s contributing factor analysis, arguing that her
rating -official supervisor had a motive to retaliate against her due t o his close
relationship with her then-supervisor.2 PFR File, Tab 3 at 11.
¶11 The administrative judge adequately considered and rejected this argument
below. Specifically, the administrative judge determined that the appellant ’s
then-supervisor who made th e gun comment was aware that the appellant
previously had participated in the climate assessment at the time that he made the
comments, and the administrative judge acknowledged the appellant ’s stated
belief that he made the comments to intimidate her. ID at 11. Nonetheless, the
administrative judge found that the appellant failed to demonstrate that her rating
supervisor or anyone else responsible for giving her the fiscal year 2015 “fully
2 The appellant also appears to suggest that she and other alleged whistleblowers were
treated diff erently than other employees. PFR File, Tab 3 at 10 -12. However, because
the administrative judge determined that the app ellant failed to meet her prima facie
case of reprisal for whistleblowing, considering such a claim would have been
inappropriate. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19
n.10 (2014) (stating that the Board may not proceed to the clear and convincing
evidence test unless it has first determined that the appellant established her prima facie
case), aff’d, 623 F. App ’x 1016 (Fed. Cir. 2015).
8
successful ” performance rating had actual or constructive knowledge of the fact
that the appellant disclosed the gun -sighting state ments during the AIB. ID
at 11-12. The administrative judge also evaluated alternative means for
establishing contributing f actor, including the strength or weakness of the
agency ’s reasons for providing her with the lowered performance rating and
whether the appellant ’s supervisor had any desire or motive to retaliate against
her, and determined that even assuming the appellan t’s disclosure of the
gun-sighting remarks during the AIB was protected, she nonetheless failed to
demonstrate that the remarks were a contributing factor in the lowe red rating
decision. ID at 12; see Dorney v. Department of the Army , 117 M.S.P.R. 480 ,
¶¶ 14-15 (2012) (identifying the alternative ways that an appellant can satisfy the
contributing factor standard) . We agree with th e administrative judge ’s findings
in this regard and discern no basis to disturb these findings on revi ew.
The appellant failed to demonstrate that she was subjected to a hostile work
environment that would constitute a personnel action as defined under 5 U.S.C.
§ 2302 (a)(2)(A).
¶12 The administrative judge interpreted the appellant ’s statement in her OSC
complaint that she wished to work in a “non-hostile environment ” as an allegation
that she was subject to a hostile work environment in retaliation for her alleged
protected disclosures. IAF, Tab 10 at 6 , Tab 25 at 1 -2; ID at 4. The appellant
does not specifically challenge the administrative judge ’s findings concern ing her
hostile work environment claim by name in her petition for review, and instead
only generally challenges his conclusion that none of her alleged disclosures or
protected activities was a contributing factor in either of the challenged personnel
actions. PFR File, Tab 3 at 7 -8.
¶13 In Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16, the
Board clarified tha t an allegation of a hostile work environment may constitute a
covered personnel action if it results in a significant change in duties,
responsibilities, or working conditions as set forth in 5 U. S.C. § 2302 (a)(2)(A).
9
See 5 U.S.C. § 2302 (a)(2)(A)(xii). In determining whether an appellant has
suffered a “significant change ” in her duties, responsibilities, or working
conditions, the Board must consider the alleged agency actions both collectively
and individually. Skarada , 2022 MSPB 17 , ¶ 16; see Holderfield v. Merit
Systems Protection Board , 326 F.3d 1207 , 1209 (Fed. Cir. 2003). A number of
agency actions may amount to a covered “significant change ” personnel action
collectivel y, even if they are not covered personnel actions individually.
Skarada , 2022 MSPB 17 , ¶ 18 . To constitute a significant change in working
conditions, however, a series of minor agency actions must be pervasive and
occur over an extended period of time. Id., ¶ 16. In sum, only agency actions
that, individually or collectively, have practical and significant effects on the
overall nature and quality of an employee ’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii). Id.
¶14 Although the administrative judge did not have the benefit of Skarada at the
time he issued his initial decision, he nonetheless concluded that the appellant
was not subject to a hostile work environment because the actions the appellant
alleged were taken against her after the May 2015 AIB hearing were not
“sufficiently severe or pervasive ” to rise to the level of a hostile work
environment. ID at 12. In reaching this conclusion, the administrative judge did
not specifically explain why he only considered the alleged instances of a hostile
work environment that post -dated the appellant ’s statements to the AIB in May
2015, but it appears that he limited his consideration to that timeframe because
that was when the appellant first discl osed the gun -sighting statements —the only
disclosure he evaluated as potentially protect ed. Id. Nonetheless, we will
consider the additional allegations that contributed to the appellant ’s hostile work
environment claim that occurred prior to the May 2015 AIB investigation, which
were identified by the appellant in a pre -hearing filing and during her hearing
testimony. IAF, Tab 27 ; Hearing Transcript (HT) (testimony of the appellant) . In
10
one allegation , the appellant asserted that on February 4, 2015, she was accused
by a co -worker of lifting a patient in a manner inconsistent with agency policy
immediately after that co -worker left a meeting with her then -supervisor. IAF,
Tab 27 at 4 -5; HT at 89 -91 (testimony of the appellant) . The appellant also
alleged that , on another occasion on April 13, 2015, her second -level supervisor
placed a pi ece of paper in front of her asking whether her supervisor was “a good
supervisor, ” to which the appellant did not reply. IAF, Tab 27 at 5; HT at 93
(testimony of the appellant) .
¶15 Nothing about either incident describes “harassment to such a degree that
[the appellant ’s] working conditions were significantly and practically impacted. ”
Skarada , 2022 MSPB 17 , ¶ 29. Accordingly, e ven considering the above
additional instances of a hostile work environment and applying the framework
for such claims identified in Skarada , we agree with the administrative judge ’s
finding that none of the incidents the appellant identif ied were “sufficiently
severe or pervasive, ” individually or collectively, to constitute a significant
change in her working conditions necessary to rise to the level of a covered
personnel action . ID at 12; see 5 U.S.C. § 2302 (a)(2)(A)(xii); cf. Skarada ,
2022 MSPB 17 , ¶¶ 16-18.
We vacate the administrative judge ’s finding that the appellant ’s appearance at a
protective order hearing on a coworker ’s behalf constituted activity protected by
5 U.S.C. § 2302 (b)(9) (B).
¶16 Under 5 U.S.C. § 2302 (b)(9)(B), it is a protected activity to “testify[ ] for or
otherwise lawfully assist[ ] any individual in the exercise of any right referred to
in subparagraph (A)(i) or (ii).” Secti on 2302(b)(9)(A), in turn, covers the
protected activities of “the exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation —(i) with regard to remedying a violation
of [section 2302(b)(8)] ; or (ii) other than with regar d to remedying a violation of
[section 2302(b)(8)] .” The Board held in Von Kelsch v. Department of Labor ,
59 M.S.P.R. 503 , 508 -09 ( 1993) , overruled on other grounds by Thomas v.
11
Department of the Treasury , 77 M.S.P.R. 224 , 236 n.9 (1998), overruled by
Ganski v. De partment of the Interior , 86 M.S.P.R. 32 (2000) , that filing a claim
with the Office of Workers ’ Compensation Programs did not constitute the
“exercise of any appeal, complaint or grievance right ” because it did not
constitute an initial step toward taking legal action against an employer for the
perceived violation of employment rights. Subsequently, in Graves v.
Department of V eterans Affairs , the Board held that an appellant testifying at an
AIB in support of another employee also did not constitute the “exercise of any
appeal, complaint or grievance right ” for the same reason, noting that the
Whistleblower Protection Enhanceme nt Act of 2012 (WPEA) did not alter the
Board ’s analysis in Von Kelsch concerning the meaning of the term “appeal,
complaint, or grievance ” in 5 U.S.C. § 2302 (b)(9). 123 M.S.P.R. 434 , ¶ 18; see
Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶¶ 10 -11 (2014).
¶17 Here, the administrative judge determined that by appearing at a county
courthouse and making her self available to testify as a potential witness in
defense of a co-worker during a protective order hearing, the appellant was
“otherwise lawfully assisting ” the defendant co -worker in the exercise of any
“appeal, complaint, or grievance right protected b y any law, rule, or regulation ”
under 5 U.S.C. § 2302 (b)(9)(B). ID at 13. The administrative judge reached this
conclusion , even though the appellant was never actually called to testify on the
defendant co -worker ’s behalf, and even though the proceedings were initiated
against the defendant co -worker and not at his behest. Id.
¶18 We find that this determination was in error. By merely appearing at the
county courthouse for a civil protective order proceeding, the appellant was not
taking “an initial step toward taking legal action ” against the agency on her co -
worker ’s behalf for a perceived violation of that co -worker ’s employment rights.
See 5 U.S.C. § 2302 (b)(9) ; Graves , 123 M.S.P.R. 434 , ¶¶ 17 -19; Von Kelsch ,
59 M.S.P.R. at 508 -09; cf. Carney v. Department of Veterans Affairs ,
121 M.S.P.R. 446 , ¶ 6 (2014) (finding that re presenting an agency employee
12
durin g an informal griev ance meeting falls under the protective umbrella of the
WPEA). Additionally, despite the administrative judge ’s conclusion otherwise,
because the co -worker on whose behalf the appellant was appearing was the
subject of and not the initiator of the protect ive order, the hearing was inarguably
not an “appeal, complaint, or grievance right ” that was initiated by that employee.
Graves , 123 M.S.P.R. 434 , ¶ 14; ID at 13 -14. Consequently, we modify the
administrative judge ’s findings concerning the June 2015 protective order hearing
and conclude that the appellant was not “otherwise lawfully assisting ” her
co-worker in the exerc ise of any “appeal, complaint or grievance right ” when she
appeared in order to (but did not actually) provide supporting testimony at the
protective order hearing. See 5 U.S.C. § 2302 (b)(9)(B) ; Graves , 123 M.S.P.R.
434, ¶ 18 .
¶19 For the foregoing reasons, we deny the petition for review and affirm the
initial decision as modified by this final order.3
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriat e
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which optio n is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
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.
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.
13
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately re view the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicia l review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscou rts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal t o
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
14
Board neither end orses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2 ); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, y ou may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equ al Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do , then you must file
15
with the EEOC no later than 30 calendar days after your representative 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 Emp loyment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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.5 The court of appeals must receive your petition for
5 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
16
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.
17
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HENDRICKSON_MONICA_A_DE_1221_17_0012_W_1_FINAL_ORDER_2040580.pdf | 2023-06-13 | null | DE-1221 | NP |
3,033 | https://www.mspb.gov/decisions/nonprecedential/FERNANDEZ_ORLANDO_NY_0752_17_0013_I_1_FINAL_ORDER_2040012.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ORLANDO FERNANDEZ,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
NY-0752 -17-0013 -I-1
DATE: June 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Orlando Fernandez , Rome, New York, pro se.
Eric Y. Hart , Esquire, Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction because he first elected to
grieve the action through negotiated grievance procedures. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
petitions such as this one only in the following circumstances: the initial decision
contains erroneou s 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 o r 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 ap peal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED by this Final Order to find that the Board lacks jur isdiction
over his discrimination and retaliation claims, as well as any potential claim
brought under the Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA) , we AFFIRM the initial decision.
BACKGROUND
¶2 Effective September 12, 20 16, the appellant was removed from the GS -5
Accounting Technician position with the Defense Finance and Accounting
Service in Rome, New York, for failure to follow supervisory instructions. Initial
Appeal File (IAF), Tab 5 at 9-10, 17. On September 20, 2 016, he filed a written
step one grievance under the agency’s negotiated grievance procedures. Id.
at 18-27. The agency denied the grievance on September 30, 2016. Id. at 28 -29.
On October 4, 2016, he filed this Board appeal. IAF, Tab 1. The agency l ater
denied his step two and step three grievances on October 14 and November 16,
2016, respectively. IAF, Tab 5 at 30-31, Tab 10 at 2 -3. His union declined to
pursue arbitration. IAF, Tab 10 at 3.
3
¶3 The agency moved for dismissal of the appeal for lack o f jurisdiction
because it argued that the appellant had irrevocably elected to grieve the matter
before he filed his Board appeal. IAF, Tab 6 at 4 -7. The administrative judge
then gave the appellant notice as to the election of remedies in matters covere d by
both 5 U.S.C. § 7512 and the agency’s negotiated grievance procedures, and she
ordered him to respond. IAF, Tab 7. The appellant filed a timely response
alleging, among other things, that th e agency discriminated against him based on
his age, national origin (Hispanic), prior equal employment opportunity (EEO)
activity, and status as a Vietnam veteran. IAF, Tab 8 at 2. The agency also filed
a response. IAF, Tab 9.
¶4 The administrative judg e issued an initial decision finding that the appellant
had been given proper notice of his election rights and that he had filed a timely
grievance of his removal. IAF, Tab 12, Initial Decision (ID) at 2 -3. The
administrative judge concluded that, by fi ling a timely grievance before he filed
his Board appeal, the appellant had elected to pursue the matter as a negotiated
grievance and not as a Board appeal, thus foreclosing his right to appeal the
removal to the Board later. ID at 3. On the same day th e initial decision was
issued, the administrative judge issued a separate notice informing the appellant
that, to the extent he believed the removal action was attributed to his military
service or military status, he could file a separate USERRA appeal on that basis.
IAF, Tab 11.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1 -2. The agency has filed an opposition to which the appellant has
replied. PFR File, Tabs 6 -7.
ANALYSIS
¶6 As a general rule, matters covered un der the Board’s adverse action
jurisdiction, 5 U.S.C. § 7512 , that are also within the coverage of a negotiated
grievance procedure may, at the discretion of the aggrieved employee, be raised
4
under either the appellate procedures set forth in 5 U.S.C. § 7701 or under the
negotiated grievance procedure, but not under both procedures. 5 U.S.C.
§ 7121 (e)(1). An employee is deemed to have exercised his option to raise the
matter either under the negotiated grievance procedure or under the appellate
procedure when he timely files a grievance under the negotiated grievance
procedure or timely files an appeal, whichever event occurs first. Id.;
Crawford -Graham v. Department of Veterans Affairs , 99 M.S.P.R. 389, ¶ 6
(2005). Generally, an employee’s election to file a grievance is effective and
deprives the Board of jurisdiction over the matter if the employee received
adequate notice of his election rights and timely filed his grievance. See 5 U.S.C.
§ 7121 (e)(1) ; Kirkwood v. Department of Education , 99 M.S.P.R. 437 , ¶¶ 10-14
(2005).
¶7 The agency’s September 12, 2016 removal decision letter included an
addendum, which outlined the procedures for Board appeals, negotiated
grievances, and EEO complaints. IAF, Tab 5 at 12-16. The addendum also
pointed out that the appellant’s sel ection of one forum would preclude him from
subsequently selecting another forum. Id. at 12. The agency’s negotiated
grievance procedures indicate that a grievance must be filed within 20 work days
from the employee’s receipt of the decision letter. Id. at 14, 42, 45. The
appellant filed a timely step one grievance on September 20, 2016. Id. at 18.
Because he received proper notice of his election rights and he filed a timely
grievance under the negotiated grievance procedure before he filed his Board
appeal, we conclude that the appellant made a valid election of remedies pursuant
to 5 U.S.C. § 7121 (e)(1), which foreclosed the Board from jurisdiction over this
matter.
¶8 On review, the appellant again argues the merits of his appeal. PFR File,
Tab 1. To the limited extent that he argues jurisdictional issues, he asserts that,
after his step three grievance was denied, he had a right to binding arbitration.
Id. at 4; IAF, Tab 10 at 3. However, only the union can invoke arbitration under
5
the collective bargaining agreement (CBA) here. IAF, Tab 5 at 14. We also find
that the appellant was fully informed that the decision to pursue binding
arbitration in the negotiated grievance process was not h is to make. The agency’s
notice outlining his appeal and grievance rights states in relevant part: “You may
pursue a grievance through the third step of the grievance procedure, but only the
Union may invoke binding arbitration pursuant to the [Master Co llective
Bargaining Agreement], Article 39 over your grievance at the conclusion of the
third step.” Id. (emphasis in original). The appellant asserts that the Union
President denied him his right to arbitration because the “Union President himself
from the very beginning of this ordeal was one of the strongest discriminatory
advocates of my removal from Federal service. ” PFR File, Tab 1 at 4, 6. The
appellant, however, has not identified any authority that would support a finding
that he did not make a valid election of remedies under these circumstances. To
the contrary, the Board has held that the failure to reach arbitration, or subsequent
dissatisfaction with an appellant’s choice, is not a basis for invalidating an
appellant’s election to invoke n egotiated grievance procedures. See Martinez v.
Department of Justice , 85 M.S.P.R. 290, ¶ 10 (2000). We similarly find that the
appellant’s allegations against his union do not negate his election of the
grievance process. Id.
¶9 The appellant also reiterates his belief that the agency discriminated against
him based on his status as a vetera n. E.g., PFR File, Tab 1 at 1, 5 -6; IAF, Tab 1
at 4-5, Tab 8 at 2. The initial decision does not address this matter, but the
administrative judge issued a notice informing the appellant of his potential
appeal rights under USERRA. IAF, Tab 11. Therein , she set forth an appellant’s
jurisdictional burden in a USERRA appeal and informed him that he could file a
separate appeal on that basis. Id. According to Board records, the appellant has
not filed such an appeal.
¶10 We find, however, that the appellant’ s election of remedies under 5 U.S.C.
§ 7121 (e)(1) would foreclose the Board from exercising jurisdiction over a
6
USERRA appeal of his removal. In Pittman v. Department of Justice , 486 F.3d
1276 , 1280 -82 (Fed. Cir. 2007), our reviewing court held that an appellant who
had grieved his removal under a CBA was precluded from raising the same matter
in a subsequent USERRA appeal. The court considered the appellant’s USERRA
discrimination claim regarding his alleged improper removal to fall within the
body of “[s]imilar matters which arise in other personnel systems” described in
section 7121(e )(1), and, because he previously had elected to grieve the removal
under the agency’s negotiated grievance procedure, his appeal was outside of the
Board’s jurisdiction.3 Pittman , 486 F.3d at 1282; see 5 U.S.C. § 7121 (e)(1).
¶11 The appellant also asserts that the agency discriminated against him based
on his age and national origin. PFR File, Tab 1 at 1, 5, 7 -10. He explains that he
has a pending EEO complaint with the agency. Id. at 7-8. The init ial decision
does not expressly address any claims related to discrimination or retaliation for
EEO activities, which were raised below. IAF, Tab 1 at 4 -5, Tab 8 at 2.
However, the appellant has not been prejudiced because the Board lacks
jurisdiction ov er such matters due to his prior election of grievance procedures.
An aggrieved employee making such claims in connection with a matter that may
be appealed to the Board may raise the matter under a negotiated grievance
procedure or a Board appeal, but no t both; and he is deemed to have exercised
this option based on which process is initiated first. 5 U.S.C. § 7121 (d). As
previously explained, we find that the appellant elected grievance procedu res
before filing his Board appeal. There is a limited right to seek Board review of a
final grievance decision in such a case, even if the employee first contested the
3 In Weiberg v. Merit Systems Protection Board , 328 F. App’x 619, 620 -21 (Fed. Cir.
2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) declined to
follow Pittman because the Weiberg CBA required that persons in the bargaining unit
grieve any matter not specifically excluded by the CBA, and USERRA matters were not
excluded. Here, however, the agency’s negotiated grievance procedures do not impose
such a limitation, though matters that mi ght be brought before the Board under
USERRA may instead be grieved. IAF, Tab 5 at 14, 43 -45.
7
matter through grievance procedures. Id. When, as here, there is no final
arbitratio n decision, however, this limited appeal right is not available, even if the
decision to initiate arbitration decision belongs to the union. See Farmer v. Merit
Systems Protection Board , No. 93 -3533, 1994 WL 7103, *2 -3 (Fed. Cir. Jan. 13,
1994);4 Martinez , 85 M.S.P.R. 290 , ¶¶ 10, 12.
¶12 Finally, the appellant’s submissions on review contain appended documents
that predate the close of the record before the administrative judge and/or are
already part of the record. PFR File, Tab 1 at 11 -40, Tab 2 at 12 -13, Tab 7
at 12-17. We find that these documents are not a basis for granting the petition
for review. The Board generally will not c onsider evidence submitted for the first
time with the petition for review absent a showing that it was unavailable before
the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980); 5 C.F.R. § 1201.115 (d). The appellant has
not alleged that any of the newly submitted doc uments were unavailable to him
before the record closed. To the extent that some of the documents are already in
the record, they are not “new” evidence for purposes of 5 C.F.R. § 1201. 115. See
Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980). In any event,
none of the documents contain information of sufficient wei ght to warrant an
outcome different from that of the initial decision. See Russo v. Veterans
Administration , 3 M.S.P.R. 345 , 349 (1980); 5 C.F.R. § 1201.115 (a)(1).
¶13 Accordingly, we affirm the initial decision, as modified herein.5
4 The Board may rely on unpublished Federal Circuit decisions when, 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).
5 After the appellant filed his petition for review with th e Board on April 12, 2017, he
submitted an appeal of the initial decision to the Federal Circuit. The appeal was
docketed as Case No. 17 -2046 on May 18, 2017. On June 29, 2017, the Federal Circuit
issued an order dismissing the appeal for lack of jurisdi ction due to the appellant’s
pending petition for review with the Board. Fernandez v. Department of Defense , No.
2017 -2046 (Fed. Cir. June 29, 2017) .
8
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
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 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 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).
We also note that the appellant has filed several supplemental pleadings on review,
which the Office of t he Clerk of the Board has rejected. PFR File, Tabs 4 -5, 8.
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 advis e 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 ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in sec uring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a di sposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a c laim 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 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 pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 prohi bited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circu it or any court of appeals of
competent jurisdiction.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
contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono f or information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 A ct, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 give n case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locato r/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FERNANDEZ_ORLANDO_NY_0752_17_0013_I_1_FINAL_ORDER_2040012.pdf | 2023-06-12 | null | NY-0752 | NP |
3,034 | https://www.mspb.gov/decisions/nonprecedential/BENNETT_ERIC_NY_0752_14_0073_X_1_ORDER_2040037.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC BENNETT,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER S
NY-0752 -14-0073 -X-1
NY-0752 -14-0073 -C-2
DATE: June 12, 2023
THIS ORDER IS NONPRECEDENTIAL1
Jonathan Bell , Esquire, and Susan Tylar , Esquire, Garden City, New York,
for the appellant.
Daniel P. Kohlmeyer , Esquire, Jamaica, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER
¶1 In an October 26, 2022 Order, the Board affirmed , except as modified to
find an additional basis of agency noncompliance, the compliance initial decision,
which granted in part the appellant’s petition for enforcement and found 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 in partial noncompliance with the final decision in the underlying appeal
reversing the appellant’s removal and ordering him reinstated with back pay and
benefits. Bennett v. Department of Transportation , MSPB Docket No. NY -0752 -
14-0073 -C-2, Order (Oct. 26, 2022); Bennett v. Department of Transportation ,
MSPB Docket No. NY -0752 -14-0073 -C-2, Compliance Petition for Review
(CPFR) File, Tab 6; Bennett v. Department of Transportation , MSPB Docket
No. NY-0752 -14-0073 -C-2, Compliance File (C -2 CF), Tab 11, Compliance
Initial Decision (CID) . Specifically , the compliance initial decision found the
agency in noncompliance to the extent it had failed to pay the appellant $6,000 in
bonus pay as part of his back pay award . CID at 4-5. The Board modified the
compliance initial decision to also find the agency in noncompliance to the extent
it failed to provide sufficient and clear information regarding its calculation of
the appellant’s overtime back pay . Order, ¶ ¶ 1, 11 -13. The Board ordered the
agency to submit evidence of compliance within 60 days demonstrating that it
properly calculated the appellant’s overtime hours and that the back pay award
reflected that calculation . Id., ¶ 14. For the reasons discussed below, we find
that the agency has establis hed compliance with its obligation to pay the appellant
$6,000 in bonus back pay but remains in noncompliance with its obligation to
demonstrate that it has properly calculated and paid the appellant the appropriate
amount of overtime back pay with interes t.
BACKGROUND
¶2 The appellant, an Air Traffic Control Specialist , sustained an on -the-job
injury on March 25, 2011 , and the Office of Workers’ Compensation Programs
(OWCP) accepted his claim for traumatic injury . Bennett v. Department of
Transportation , MSPB Docket No. NY -0752 -14-0073 -I-2, Refiled Appeal File,
Tab 21, Initial Decision (ID) at 2-3. Effective November 9, 2013 , the agency
removed the appellant from Federal service due to his continuing unavailability
for duty , noting that he had not repor ted for regular, full -time duty since his
3
March 25, 2011 injury. ID at 1, 12-13. The appellant appealed his removal to the
Board , and i n a July 29, 2016 initial decision , the administrative judge reversed
the removal and ordered the agency to reinstate h im effective November 9, 2013 ,
and provide him appropriate back pay with interest and restored benefits . ID
at 27, 3 8. Neither party petitioned for review of the initial decision, which
became final on September 2, 2016. ID at 40.
¶3 On January 23, 2017, t he appellant filed a petition for enforcement arguing
that the agency had failed to properly calculate and pay his back pay award , failed
to restore certain leave , and failed to give him a chance to “buy back” his OWCP
leave . Bennett v. Department of Transportation , MSPB Docket No. NY -0752 -14-
0073 -C-1, Compliance File (C -1 CF), Tab 1. The agency argued that the
appellant was not entitled to back pay for the period he received OWCP
benefits —November 9, 2013, through February 17, 2015 —and provided
affid avits reflecting , in relevant part, that it would pay the appellant for
approximately 232 hours of overtime for 2015 and 153.5 hours of overtime for
2016 based on the overtime hours he actually worked in the year prior to his
injury . C-1 CF, Tab 7 at 5, 10-11, 13
¶4 In a March 10, 2017 interim order , the administrative judge held that,
contrary to the agency’s contention , the appellant was entitled to the back pay and
benefits for the period he was receiving OWCP benefits , less deductions that
ordinarily would have been taken, including an offset for any OWCP wage
replacement benefits he actually received , since the agency had failed to submit
concrete and positive evidence establishing that the appellant was not ready,
willing, and able to perform the dut ies of his position during that time . C-1 CF,
Tab 12 at 1 -2. The administrative judge explicitly stated that the appellant ’s back
pay for this period “ should include all additional pay, such as overtime, Sunday
pay, night differential and holiday pay tha t he would have received had he worked
during this time period. ” Id. at 2 (citing Powe v. U.S. Postal Service ,
108 M.S.P.R. 130 (2008 )). Accordingly, the administrative judge ordered the
4
agency to pay the appellant the appropriate amount of back pay for the time
period from November 9, 2013, through February 17, 2015, and dismissed the
appeal without prejudice for a period of 60 days to give the agency time to
comply with the interim order. Id. at 2; C -1 CF, Tab 13.
¶5 Upon the automatic refiling of the petition for enforcement, the appellant
narrowed the scope of his enforcement challenges to the following allegations of
noncompliance: (1) the agency failed to correctly calculate his overtime back
pay; (2) the agency failed to him pay $9,000 in bonus awards for 2015 ; and
(3) the agency failed to give him the opportunity to “buy back” his OWCP leave.
C-2 CF, Tab 6 at 6 -8. In an August 1, 2017 compliance initial decision, the
administrative judge granted the appellant’s petition in part and found the agency
in noncompliance to the extent it failed to pay him $6,000 in bonus payments he
would have received but for the imprope r removal . CID at 4-6. The
administrative judge denied the appellant’s petition for enforcement to the extent
he claimed that the agency failed to correctly calculate the overtime hours in his
back pay award , finding that the agency ’s decision to pay the appellant overtime
based on his pre -removal overtime hours was not unreasonable. CID at 3 -4. The
administrative judge also denied the appellant’s petition for enforcement to the
extent he argued that the agency failed to afford him an opportunity to buy back
leave , finding that the appellant failed to esta blish that he was entitled to do so.
CID at 5-6.
¶6 On September 20, 2017, after requesting and receiving an extension of time
to file, the appellant petitioned for review of the compliance initial deci sion,
arguing that the administrative judge erred in finding that the agency correctly
calculated the overtime hours in his back pay award.2 CPFR, Tab 1. In the
October 26, 2022 Order, the Board found that the agency’s use of the appellant’s
2 The appellant did not challenge in his compliance petition for review the
administrative judge’s findings that he was entitled to $6,000 in bonus pay as part of his
back pay award or that he was no t entitled to buy back any leave. CPFR File, Tab 1.
5
historical o vertime hours to calculate his overtime back pay award was reasonable
but that the agency failed to present clear and understandable evidence that its
overtime back pay calculations were accurate. Order, ¶¶ 8-13. Accordingly, the
Board affirmed the compl iance initial decision except as modified to find that the
agency’s failure to present clear and understandable information regarding its
overtime back pay calculation constituted an additional basis of agency
noncompliance. Id., ¶¶ 1, 13. The Board ordered the agency to submit evidence
and a narrative statement of compliance within 60 days, including evidence
demonstrating that it properly calculated the appellant’s pre-removal overtime
hours and that the back pay awarded to the appellan t reflect ed that calculation.
Id., ¶ 14.
¶7 On December 23, 2022, the agency submitted a narrative statement and a
sworn declaration from a Payroll Program Specialist explaining that the
“confusion ” regarding the overtime hours in the back pay award occurr ed as a
result of the agency entering hours into timecards as decimals in Excel (base 100)
and the payroll services interpreting those entries as clock hours and minutes
(base 60) , i.e., the agency input 1.26 to signify 1 hour and 16 minutes , but payroll
services interpreted this figure as 126 minutes (or 2 hours 6 minutes) . CRF,
Tab 3 at 4 -5, 7-8. The agency stated , however, that this issue was identified and
corrected in 2017, so the overtime calculation and back pay calculations made at
the time were correct , and provided a copy of an email from the Supervisory
Human Resources Specialist stating that the appellant ’s “payment is correct .” Id.
at 5, 9.
¶8 In response, the appellant argued that the agency’s December 23, 2022
compliance submis sion failed to demonstrate that it properly calculated and paid
him the appropriate amount of overtime hours for the full back pay period from
November 9, 2013, through November 6, 2016. CRF, Tab 4 at 4 -6. The appellant
6
also argued that he was entitled t o the outstanding o vertime back pay plus interest
and attorney’s fees in connection with his petition for enforcement.3 Id. at 6-7.
ANALYSIS
¶9 When, as here, the Board finds a personnel action unwarranted, the aim is to
place the appellant, as nearly as possible, in the situation he would have been in
had the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011); King v. Department of the Navy ,
100 M.S.P.R. 116 , ¶ 12 (2005), aff’d per curiam , 167 F. App ’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board ’s order
by a preponderance of the evidence.4 Vaughan , 116 M.S.P.R. 319 , ¶ 5; 5 C.F.R.
§ 1201.183 (d). An agency ’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan , 116 M.S.P.R. 319 , ¶ 5. The appellant may rebut the agency ’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
$6,000 Bonus Award
¶10 As described above, the administrative judge found that the agency was not
in compliance with the Board’s final order in the underlying appeal because it had
failed to pay the appellant $6,000 in bonus pay as part of his back pay award.
CID at 4 -5. The agency’s submissions show that it has now made this payment.
CRF, Tab 2. In p articular, as set forth above, the agency stated and provided
3 The appellant’s request for attorney fees in connection with these compliance
proceedings is premature because the Board has not yet issued a final decision on
compliance. See Galatis v. U.S. Postal Service , 109 M.S.P.R. 651 , ¶ 14 (2008);
5 C.F.R. § 1201.203 (d) (requiring a motion for attorney fees to be filed as soon as
possible after a final decision of the Board but no later than 60 days after the date on
which a decision becomes final).
4 A preponderance of the evidence is the degree of relevant evidence t hat a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
7
evidence reflecting that the agency paid the appellant a $6,000 lump sum on
August 15, 2017. CRF, Tab 2. As the appellant has not responded to the
agency’s assertions and evidence of complianc e, the Board assumes that he is
satisfied. See Baumgartner v. Department of Housing and Urban Development ,
111 M.S.P.R. 86 , ¶ 9 (2009). Accordingly, we find that the agency has complied
with its outstanding obligation to pay the appellant the $6,000 in bonus pay he
would have received during the back pay period had the removal not occurred.
Overtime Pay
¶11 Overtime back pay may be computed based on either the appellant ’s own
overtime history or the average overtime hours worked by similarly situated
employees during the relevant time period. Rittgers v. Department of Army ,
123 M.S.P.R. 31 , ¶ 13 (2015). Although the appellant is not entitled to receive a
windfall, he is entitled to be restored to the status quo ante, and the agency must
use the method of computation most likely to achieve this goal. Id. The Board
will not nullify the method used by the agency to calculate overtime back pay in
the absence of a showing that the method was unreasonable or unworkable. Id.
¶12 Here, the agency stated that it calculated the appellant’s overtime back pay
award based on the hours of overtime he worked during the year prior to his
March 25, 2011 injury and determined on that basis that he was entitled to
approximately 232 hours of overtime per year . C-1 CF, Ta b 7 at 5 -6, C-2 CF,
Tab 7 at 5. The only evidence the agency provided regarding the number of hours
of overtime back pay the agency paid the appellant is a February 7, 2017 aff idavit
completed by the Payroll Program Specialist attesting that the appellant received
the following overtime back pay:
8
Period Overtime hours Overtime Pay
1/11/2015 – 6/13/2015 76 hours 10 min . $9,357.33
6/14/2015 – 1/9/2016 155 hours 40 min . $19,594.97
1/10/2016 – 6/11/2016 93 hours 10 min . $11,837.10
6/12/2016 – 10/15/2016 60 hours 20 min. $7,783.85
C-1 CF, Tab 7 at 10 -11. Thus, the agency ’s evidence reflects that the appellant
received back pay for approximately 232 hours of overtime in 2015 and
approximately 153.5 hours of overtime for 2016, for a total of 3 85 hours and
20 minutes of overtime for the period from January 11, 2015 , through October 15,
2016 .
¶13 As noted above, both the administrative judge and the Board found that the
agency’s decision to calculate the appellant’s overtime back pay using his
overtime history was not unreasonable. Order, ¶¶ 8-10; CID at 4. However, the
Board found that the agency had failed to present clear and understandable
evidence showing that its overtime back pay calculations were accurate . Order,
¶¶ 11-13. Specif ically, the Board found that the agency failed to provide any
evidence confirming that the appellant previously worked 232 hours of overtime
per year and noted that the records submitted by the appellant show that he
worked 215 hours of overtime in 2015 , rather than 232 . Id., ¶¶ 12-13. The Board
additionally found that the Management Support Specialist ’s statement s that she
used the overtime hours the appellant worked in each pay period the year prior to
his injury and applied these hours to both 2015 and 2016 conflicted with the
Payroll Program Specialist’s affidavit , which stated that the appellant was entitled
to only 153 hours of overtime for 2016 and to different amounts of overtime for
the January -to-June period o f each year . Id. at ¶ 13. Furthermore, the Board
noted that, at the time the agency submitted this evidence , the agency believed
that it was not required to pay the appellant back pay for the period he was
9
receiving OWCP benefits (November 9, 2013, throu gh February 17, 2015) and
therefore applied the appellant’s historical overtime hours only to 2015 and 2016.
Id., ¶ 13 n.2. However, as the Board observed , the administrative judge
subsequently ruled that the agency was required to pay the appellant back pay,
including overtime pay , for the period he was receiving OWCP benefits, minus an
offset for any OWCP wage replacement benefits he actually received. Id.
¶14 In its statement of compliance responding to the Board’s finding of
noncompliance in connection with its overtime calculations, the agency stated
that the “confusion” with its back pay calculations arose as a result of converting
unspecified timecard entries from decimal hours to clock hours and minutes but
that the appellant nonetheless received the correct amount of back pay . CRF,
Tab 3 at 5, 9. This submission fails to address the deficiencies identified in the
Board’s Order and does not satisfy the agency’s obligation to demonstrate
compliance by preponderant evidence .
¶15 First , the agency has still not provided clear and understandable evidence
supporting its determination that the appellant was entitled to 232 hours of
overtime per year of the back pay period based on the overtime hours he actually
worked prior to his injury . The agency has previously represented that it
determined the appellant’s overtime back pay award based on the hours of
overtime he worked in the 1 year before his March 25, 2011 injury. C -1 CF,
Tab 7 at 5, 13. The Board previously construed this statement to mean the
overtime hours worked in 2010. Order, ¶¶ 8 -10, 12, 14. It appears, however, that
the agency may have been referring to the 12 -month period immediately
preceding his removal, i.e., March 25, 2010, through March 24, 2011, rather than
the year 2010. Regardless of which of these 12-month period s the agency used to
calculate the appellant’s overtime back pay entitlement based on his overtime
history , it must submit evidence supporting its determination that the appellant
actually worked 232 hours of overtime during that period.
10
¶16 Second, the agency has not stated or provided any evidence showing that it
has properly calculated and paid the appellant the appropriate amount of overtime
back pay for the entire back pay period, including N ovember 9, 2013, through
February 17, 2015, as expressly required by the administrative judge’s interim
order, or October 16, 2016, through the date of his reinstatement.5 The unsworn
and unsupported email from the Supervisory Human Resources Specialist s tating
that the appellan t’s “payment is correct ,” CRF Tab 3 at 9, does not establish that
the appellant has received the correct amount of overtime back pay , see Adamsen
v. Department of Agriculture , 116 M.S.P.R. 331 , ¶ 17 (2011) (finding an unsworn
unsupported statement not to be probative of the matter asserted). The agency
must provide evidence showing that it has satisfied its ob ligation to calculate and
pay the appellant the overtime back pay to which he is entitled for the entire back
pay period .
¶17 Third, the agency has failed to provide clear and understandable evidence
accounting for the apparent conflict between the Management Support
Specialist’s affidavit stating that the appellant’s historical overtime data was
applied to both 2015 and 2016 and the Payroll Program Specialist’s affidavit
stating that the appellant was entitled to only 1 53 hours of overtime for 2016 and
to 17 hours of overtime less for the January -to-June period in 2015 than the same
time period in 2016. Although the agency’s December 23, 202 2 compliance
submission contends that the “confusion” in its prior back pay calc ulations
result ed from a conversion error , the agency does not explicitly state which
numbers were affected by the error or explain how the error actually affected any
particular number. CRF, Tab 3. Thus, it is unclear if the purported conversion
error a ffected the agency’s calculations regarding the appellant’s overtime back
5 The app ellant states that he returned to work on November 6, 2016, although there
does not appear to be any evidence in the record confirming this date. CRF, Tab 4 at 5.
If the agency does not provide evidence confirming the end date of the back pay period ,
the Board will assume the appellant’s statement is correct .
11
pay for 2015 and 2016 and, even if it did, the agency’s submission does not
provide sufficient information for the Board to find that the overtime hours paid
to the appellant for the se years were correct. Moreover, we note that the 17-hour
difference between the 76 hours 10 minutes of overtime paid to the appellant for
the January -to-June period in 2015 and the 93 hours 10 minutes of overtime paid
to him for the same period in 2016 appears to be accounted for by, at least in part,
the agency’s apparent failure to pay the appellant overtime back pay for the
period he was receiving OWCP benefits, rather than solely due to the purported
conversion error . If the agency maintains that its prior calculations regarding the
appellant’s overtime entitlement in 2015 and 2016 are correct, it must provide a
clear and understandable explanation, supported by evidence, addressing how it
derived those numbers and why there are differences between the overtime hours
for the same periods in 2015 and 2016.
ORDER
¶18 Accordingly, we ORDER the agency to submit, within 21 calendar days of
the date of this order , satisfactory evidence of compliance with the Board’s
Order. Specifically, the agency must subm it evidence and a detailed narrative
establishing the following by preponderant evidence :
(1) that the agency has properly calculated based on the
appellant’s overtime history the number of overtime hours he is
entitled to per year of the back pay period , inc luding evidence
establishing that the appellant in fact worked 232 hours of
overtime in the 12 -month period preceding his injury or in 2010 ;
(2) that the agency has properly calculated the appellant ’s
entitlement to overtime back pay for the entire back pay period,
including the period when he was receiving OWCP benefits
(November 9, 2013, through February 17, 2015) and from
October 16, 2016, through the date of his return to work ; and
12
(3) if the agency determines that the appellant is entitled to
additional overtime back pay, that it has paid him the appropriate
overtime back pay, minus appropriate deductions and offsets,
with interest , which shall accrue through a date not more than
30 days before the date on which the payment is made , see
5 U.S.C. § 5596 (b)(2)(B)(i).
¶19 Furthermore, we ORDER the agency to submit, within 21 calendar days of
this order, the name , title, grade, address, and email address of the agency official
or officials charged with complying with the Board’s order and provide evidence
showing that it has informed such official or officials in writing of the potential
sanction for noncompliance as set forth in 5 U.S.C. § 1204 (a)(2) and (e)(2)(A),
even if the agency asserts that it has fully complied with the Board’s order.6
5 C.F.R. § 1201.183 (a)(2). If the agency fails to identify the agency official or
officials charged with complying with the Board’s Order, t he Board will presume
that the highest ranking appropriate agency official who is not appointed by the
President by and with th e consent of the Senate is charged with compliance. Id.
¶20 The appellant may respond to the agency’s response to this Order within
21 calendar days of the date of service of the agency’s submission. If the
appellant does not respond to the agency’s submissi on regarding compliance
6 We acknowledge that, in response to the administrative judge’s acknowledgment
order , the agency identified five “responsible agency officials”: a Lead Human
Resources Specialist, a Senior Technical Specialist, the Payroll Program Specialist, a
Supervisor of Benefits within the Interior Business Center, and the Management
Support Specialis t. C -1 CF, Tab 7 at 4 -5. However, it is unclear which of these
individuals, if any, is charged with complying with the Board’s Order to properly
calculate and pay the appellant’s overtime back pay with interest . See 5 U.S.C.
1204 (a)(2); 5 C.F.R. § 1201.183 (a)(2). Pursuant to 5 U.S.C. 1204 (e)(2)(A ), the Board
may order that any employee charged with complying with its order, other than an
employee appointed by the President by and with the advice and consent of the Senate,
shall not be entitled to receive payment for service as an employee during any period
that the orde r has not been complied with. Accordingly, the agency must identify the
responsible agency official or officials charged with —and with the authority to —
comply with the Board’s Order to calculate and pay the appellant the appropriate
amount of overtime bac k pay with interest.
13
within 21 calendar days, the Board may assume that he is satisfied and dismiss
the petition for enforcement.
¶21 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703 (a)(1). Upon the Board’s final resolution of
the remaining issues in this petition for enforcement, a final order subject to
judicial review will be issued .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BENNETT_ERIC_NY_0752_14_0073_X_1_ORDER_2040037.pdf | 2023-06-12 | null | S | NP |
3,035 | https://www.mspb.gov/decisions/nonprecedential/SHARPE_TAYLOR_M_DA_0752_15_0254_A_1_FINAL_ORDER_2040143.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAYLOR M. SHARPE,
Appellant,
v.
ENVIRONMENTAL PROTEC TION
AGENCY,
Agency.
DOCKET NUMBER
DA-0752 -15-0254 -A-1
DATE: June 12, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL*
Jeffrey G. Letts , Esquire, Ewing , New Jersey, for the appellant.
Sherry Lynn Brown -Wilson , Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has fi led a petition for review of the addendum initial
decision, which denied his petition for attorney fees in this matter . Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings o f material fact; the initial decision is based
* A nonprecedential order is one that the Board has determined does not add
significantly to the 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 initia l decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we con clude 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 Based upon the appellant’s arrest for alleged violations of the terms of his
probation , the agency indefinite ly suspended him pursuant to its authority under
5 U.S.C. § 7513 (b)(1) , and the appellant filed a Board appeal . Sharpe v.
Environmental Protection Agency , MSPB Docket No. DA-0752 -14-0034 -I-1,
Initial Appeal File (0034 IAF), Tab 1 . Following a h earing, the administrative
judge sustained the appellant’s indefinite suspension, finding that the agency had
reasonable cause to believe the appellant had committed a crime for which a
sentence of imprisonment could be imposed. Sharpe v. Environmental Pr otection
Agency , MSPB Docket No. DA-0752 -14-0034 -I-1, Initial Decision (Sep. 11,
2014) ; 0034 IAF, Tab 22 .
¶3 The appellant filed a petition for review , and the Board affirmed the initial
decision, finding that the administrative judge properly sustained the appellant’s
indefinite suspension. Sharpe v. Environmental Protection Agency , MSPB
Docket No. DA-0752 -14-0034 -I-1, Final Order ( Feb. 27, 2015). At the time of
the hearing in that appeal , the record showed that the judge assigned to the
3
appellant’s probation matter had entered an order dismissing the proceedings and
terminating the appellant’s period of probation on November 1, 2013, and that the
agency restored the appellant to duty on November 20, 2013 . Id., ¶¶ 8-9.
Because t he admini strative judge did not adjudicate the appellant’s challenge to
the agency’s continuation of his indefinite suspension , and such a continuation is
a separate app ealable action , the Board forwarded this matter to the regional
office for docketing as a n appea l of the conti nuation of the appellant’s indefinite
suspension after the occurrence of the condition subsequent, which in this case
was the dismissal of the criminal charges against him . Id.; see, e.g., Sanchez v.
Department of Energy , 117 M.S.P.R. 155 , ¶ 9 n.2 (2011) (observing that an
employee may appeal both the propriety of the agency’s imposition of an
indefi nite suspension and whether the agency failed to timely terminate the
suspension upon the satisfaction of the condition subsequent) .
¶4 After dismissing the appeal once without prejudice to allow the agency to
determine whether it had paid the appellant his accrued annual leave, the
administrative judge determined that the appellant had received all the relief that
he could have received if the matter had been adjudicated and he had prevailed ,
and consequently dismissed the appeal as moot . Sharpe v. Environ mental
Protection Agency , MSPB Docket No. DA -0752 -15-0254 -I-2 (I-2 AF), Tab 8,
Initial Decision (I -2 ID). Specifically, the administrative judge found that the
condition subsequent, i.e., the resolution of the criminal charges against the
appellant, occur red on November 1, and the agency returned the appellant to a
paid duty status on November 20, 2013, such that the only issue in the appeal was
whether the agency improperly continued the suspension for that 19-day period.
I-2 ID at 3 -4. Because the reco rd reflects that the agency corrected the
administrative record to indicate that the suspension ended on the date of the
condition subsequent, and paid the appellant his salary and leave accruals with
interest for the entire period from the occurrence of t he condition subsequent to
the date the agency restored him to a paid duty status, the administrative judge
4
dismissed the appeal as moot. I-2 ID at 5. Neither party filed a petition for
review and the initial decision became the Board’s final decision on July 1, 2016.
Id.; see 5 C.F.R. § 1201.113 .
¶5 The appellant then filed this petition for attorney fees. Sharpe v.
Environmental Protection Agency , MSPB Docket No. DA -0752 -15-0254 -A-1,
Attorney Fees File (AFF), Tab 1. The agency responded in opposition . AFF,
Tabs 8 -9. The administrative judge found that the appellant was not a prevailing
party because the Board did not award him relief or otherwise issue an
enforceable judgment tha t changed his relationship with the agency . AFF,
Tab 10, Attorney Fee Initial Decision (AFID) at 3 -5 (citing Buckhannon Board
and Care Home , Inc. v. West Virginia Dept. of Health and Human Services ,
532 U.S. 598 (2001)) . Thus, the administrative judge determined that there was
no “material alteration of the legal relationship of the parties necessary to permit
an award of attorney fees” and denied the appellant’ s petition for attorney fees.
AFID at 4 ( citations omitted).
¶6 In his petition for review, the appellant reiterates the argument he made in
his appeal below that Buckhannon is distinguishable from his case b ecause he
received a hearing in his original indefinite suspension appeal and the
continuation of his suspension was wrong as a matter of law. Attorney Fees
Petition for Review (AFPFR) File, Tab 1 at 1-5; AFF, Tab 1 at 17 -21. He further
contends that he is a pr evailing party and that the interest of justice would be
served by an award of attorney fees in this matter. AFPFR File, Tab 1 at 6 -7.
The agency has responded to the appellant’s petition for review and the appellant
has replied . AFPFR File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701 (g)(1), an appellant must show that: (1) he was the prevailing party; (2) he
incurred attorney fees pursuant to an existing attorney -client relationship; (3) an
5
award of fees is warranted in the interest of justice; and (4) the amount of fees
claimed is reasonable. E.g., Driscoll v. U.S. Pos tal Service , 116 M.S.P.R. 662 ,
¶ 7 (2011) ; Baldwin v. Department of Veterans Affairs , 115 M.S.P.R. 413 , ¶ 11
(2010) ; Sacco v. Department of Justice , 90 M.S.P.R. 225 , ¶ 6 (2001), aff’d,
317 F.3d 1384 (Fed. Cir. 2003). To be considered a “pre vailing party” under this
rubric, a n appellant must show that he obtained a material alteration of the legal
relationship between the parties through an enforceable final judgment on the
merits or a settlement agreement entered into the record for the purpose s of
enforcement by the Board . Sanchez v. Department of Homeland Security ,
116 M.S.P.R. 183 , ¶ 10 (2010). In attorney fee motions arising under 5 U.S.C.
§ 7701 (g)(1), the Board has expressly adopted the standard set forth by the
U.S. Supreme Court that an appellant is considered to have prevailed in a case
and to be entitled to attorney fees only if she obtains an “enforceable order”
resulting in a “material alteration of the legal relationship of the parties.”
Baldwin , 115 M.S.P.R. 413 , ¶ 11.
The appe llant was not a prevailing party.
¶8 As noted above, i n finding that the appellant was not a prevailing party and
therefore not entitled to an award of attorney fees, the administrative judge relied
upon the Supreme Court’s decision in Buckhannon , 532 U.S. 598 . There, the
Court interpreted the “prevailing party” standard contained in the attorney fees
provisions of the Fair Housing Amendments Act of 1988 and the America ns with
Disabilities Act of 1990 , to allow an award of fees only when a party has been
awarded some relief by the court. Buckhannon , 532 U.S. at 601, 604. The Court
stated, “[E]nforceable judgments on the merits and court -ordered consent decrees
create t he material alteration of the legal relationship of the parties’ necessary to
permit an award of attorney fees.” Id. (quoting Texas State Teachers Association
v. Garland Independent School Dist rict, 489 U.S. 782 , 792 -93 (1989)). The
Court specifically rejected the “catalyst theory,” whereby a party could be found
to have prevailed based on the opposing party’s voluntary change of conduct after
6
the filing of a lawsuit, as a viable basis to award attorney fees. Buckhannon ,
532 U.S. at 605.
¶9 An appellant is, or is not, a prevailing party in the case as a whole, and
whether he may be deemed a prevailing party depends on the relief ordered in the
Board’s final decision. Driscoll , 116 M.S.P.R. 662 , ¶ 9. In this case, there is no
final decision of the Board on the merits that awards the appellant any relief and
materially changes the legal relationship of the parties. The Board found that the
administrative judge properly sustained the appellant’s indefinite suspension
because the agency had reasonable cause to believe the app ellant had committed a
crime for which a sentence of imprisonment could be imposed . Sharpe v.
Environmental Protection Agency , MSPB Docket No. DA-0752 -14-0034 -I-1,
Final Order (Feb. 27, 2015). We also agree with the administrative judge that the
agency’s action correcting the administrative record to reflect that the appellant’s
suspension ended as of the resolution of his criminal matter and paying him
salary and interest from that date to the date of his restoration to a paid duty
status rendered his ap peal regarding the continuation of the indefinite suspension
moot. I-2 ID at 5.
¶10 Lastly, the app ellant argues that the interest of justice would be served by
an award of attorney fees in this matter. AFPFR File, Tab 1 at 6 -7. Although an
appellant must show that an attorney fee award is in the interest of justice, this is
not an alternate basis for granting attorney fees but is in addition to the
requirement that the appellant be the prevailing party. E.g., Baldwin ,
115 M.S.P.R. 413 , ¶¶ 10, 16 . Because the appellant is not a prevailing party, we
need not consider whether an award of attorney fees would be in the interest of
justi ce.
7
NOTICE OF APPEAL RIGHTS†
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
† Since the issuance of the initial decision in this 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.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, 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 thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
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 e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.‡ The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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
‡ The original statutory provision that provided for judicial review of certain
whistleblower claims by any court 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.
11
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SHARPE_TAYLOR_M_DA_0752_15_0254_A_1_FINAL_ORDER_2040143.pdf | 2023-06-12 | null | DA-0752 | NP |
3,036 | https://www.mspb.gov/decisions/nonprecedential/PHAN_VINH_DE_4324_17_0344_I_1_FINAL_ORDER_2039265.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VINH PHAN,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DE-4324 -17-0344 -I-1
DATE: June 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vinh Phan , Shawnee, Kansas, pro se.
Duane Bruce , and Randy Butler , Kansas City, Missouri, 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
applied collateral estoppel and dismissed the instant Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301 -4335) (USERRA) appeal for lack of jurisdiction. 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
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
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 appellant has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201 .113 (b).
¶2 In an earlier individual right of action (IRA) appeal, the appellant
challenged his nonselection for promotion to a Chemist Technology Based Expert
position (FDA ‐ORA‐16‐MP‐1608876 ‐SC) on the basis of alleged whistleblower
reprisal. Phan v. Department of Health and Human Services , MSPB Docket
No. DE-1221 -17-0285 -W-1, Initial Appeal File (0285 IAF), Tab 1. Ultimately,
the administrative judge dismissed that IRA appeal for lack of jurisdiction, and
the decision became final after neither party filed a petition for review. 0285
IAF, Tab 19, Initial Decision (0285 ID).
¶3 Because the appellant’s IRA appeal appeared to include a claim of
discrimination based on uniformed service, the administrative judge separately
docketed a USERRA appeal. Phan v. Department of Health and Human Services ,
MSPB Docket No. DE -4324 -17-0286 -I-1, Initial Appeal File (0286 IAF), Tab 1.
The administrative judge issued an order that explained the corresponding
jurisdictional burden. 0286 IAF, Tab 3. The appellant respond ed to the order by
alleging, inter alia , that the agency discriminated against him based on his
3
military service when it failed to select him for promotions. 0286 IAF, Tab 4
at 4. The specific promotions the appellant identified were the aforementioned
Chemist Technology Based Expert position (FDA ‐ORA‐16‐MP‐1608876 ‐SC), id.
at 8-9, in addition to a Chemist Residue Testing Expert position (HHS ‐FDA‐
ORA‐MP‐12‐632167), id. at 15, a Regulatory Program Expert position (HHS ‐
FDA‐2008‐0156), id. at 20, and a Supervisory Interdisciplinary Scientist position
(FDA‐ORA‐16‐MP‐1596046 ‐SC), id. at 22. The administrative judge issued a
decision that dismissed the USERRA appeal for lack of jurisdiction, and the
decision became final after neither party filed a petitio n for review. 0286 IAF,
Tab 13, Initial Decision (0286 ID).
¶4 While his first two appeals were pending, the appellant filed a third appeal,
in which he again appeared to challenge his nonselections. Phan v. Department
of Health and Human Services , MSPB Doc ket No. DE -3443 -17-0300 -I-1, Initial
Appeal File (0300 IAF), Tab 1. In that appeal, he attempted to raise allegations
of prohibited personnel practices other than whistleblower reprisal and uniformed
service discrimination. Id. The administrative judge dismissed the appeal for
lack of jurisdiction, and the initial decision became final after neither party filed
a petition for review. 0300 IAF, Tab 7, Initial Decision (0300 ID).
¶5 The appellant separately filed this, his fourth appeal, challenging his
nons election for promotion to the Chemist Technology Based Expert position
(FDA -ORA‐16‐MP‐1608876 ‐SC) from his earlier appeals and alleging
discrimination in violation of USERRA. Phan v. Department of Health and
Human Services , MSPB Docket No. DE -4324 -17-0344 -I-1, Initial Appeal File
(0344 IAF), Tab 1 at 4-5.2 The administrative judge ordered the parties to present
2 In a subsequent pleading, the appellant cited his nonselection for other vacancies as
circumstantial evidence of the agency discriminating against him based on his
uniformed service. Two of those vacancies were the same as those presented in his
earlier USERRA appeal, but one vacancy was not previously raise d—a Research
Chemist position (PH -SW-279957 -MP). 0344 IAF, Tab 6 at 7, 22. Nevertheless, the
4
argument concerning the applicability of collateral estoppel. 0344 IAF, Tab 4.
After both parties responded, the administrative judge dismissed the appeal.
0344 IAF, Tab 11, Initial Decision (0344 ID). He found that collateral estoppel
did apply, requiring that the instant appeal be dismissed for lack of jurisdiction.
0344 ID at 3-8. The appellant has filed a petition for review. Phan v.
Department of Health and Human Services , MSPB Docket No. DE-4324 -17-0344 -
I-1, Petition for Review (0344 PFR) File, Tab 1. The agency has filed a response
and the appellant has replied.3 0344 PFR File, Tabs 3-4.
¶6 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 of the issue in the prior action was
necessary to the resulting judgment; and (4) the par ty against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party to the earlier action or as one whose interests were
otherwise fully represented in that action. Hau v. Department of H omeland
Security , 123 M.S.P.R. 620 , ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems
Protection Board , 878 F.3d 1320 (Fed. Cir. 2017). The Board has held that
collateral estoppel may be grounds for dismissing an appeal for lack of
jurisdiction if a jurisdictional determination in a prior decision is affo rded
collateral estoppel effect and the appellant provides no other valid basis for Board
jurisdiction. Id.
¶7 On review, the appellant concedes that he failed to establish jurisdiction
over his prior USERRA appeal but attributes this to numerous factors, in cluding
appellant did not include a particularized argum ent about that additional vacancy. He
merely included it as an example of how he repeatedly has applied for promotions
without ever being selected.
3 The appellant also filed a motion, requesting permission to submit additional argument
and evidence. 034 4 PFR File, Tab 6. That motion is denied. See 5 C.F.R.
§ 1201.114 (a) (explaining the limited pleadings allowed on review).
5
his lack of legal knowledge, a language barrier, and mental distress.4 0344 PFR
File, Tab 1 at 4. Therefore, the appellant suggests that he should be allowed to
proceed in this second USERRA appeal. Id. We disagree. While the appellant
general ly has alleged that he was disadvantaged in the prior appeal, he has not
identified any persuasive basis for us to refrain from applying collateral estoppel
here. Cf. Milligan v. U.S. Postal Service , 106 M.S.P.R. 414 , ¶ 9 (2007)
(recognizing some limited circumstances when it may be appropriate for the
Board to not apply collateral estoppel to avoid injustice or the compromise of
publi c policy). The application of collateral estoppel remains appropriate. See
generally Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 336-37 (1995)
(explaining that collateral estoppel is intended to “relieve parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudication” (quo ting Allen v.
McCurry , 449 U.S. 90 , 94 (1980)).
¶8 The appellant next argues that the issues raised in the instant appeal are not
the same as those raised in his earlier USERRA appeal because that earlier appeal
actually involved allegations concerning veterans ’ preference. 0344 PFR File,
Tab 1 at 4 -5. In other words, he seems to suggest that the instant USERRA
appeal is not precluded by his earlier USERRA appeal because he in tended the
earlier appeal to solely involve the Veterans Employment Opportunities Act of
1998 (VEOA). Again, we are not persuaded. In the earlier USERRA appeal
concerning his nonselections, the appellant did present allegations concerning
veteran s’ prefe rence, but he also specifically indicated that he “would like to file
4 The appellant’s petition for review contains a medical reco rd showing that he
underwent a mental health evaluation in August 2017, just after the administrative
judge issued the initial decision in the instant appeal. 0344 PFR File, Tab 1 at 9 -15.
Even if we were to consider this new evidence, submitted for the first time on review,
its relevance to the instant appeal is neither explained nor apparent. It does not
establish, for example, that the appellant was unable to pursue his appeals before the
Board.
6
a complaint of discrimination under USERRA.” 0286 IAF, Tab 4 at 4. He went
on to allege that the agency “knowingly discriminates . . . on the basi[s] of
military service.” Id. Accord ingly, it was appropriate for the administrative
judge to construe that earlier appeal as a USERRA appeal and provide the
appellant the opportunity to meet his corresponding burden. The appellant’s
failure to meet that burden precludes him from trying to do so again in this
subsequent appeal.
¶9 The appellant’s final argument on review is that he has new evidence that
was unavailable to him before the close of record in his earlier USERRA appeal.
0344 PFR File, Tab 1 at 5 -6. Like the other arguments , this one does not warrant
a different result. It appears that the appellant has simply continued to gather
information concerning his nonselections, notwithstanding the administrative
judge’s application of collateral estoppel and dismissal of the instant USERR A
appeal for lack of jurisdiction. For example, the appellant submitted a letter,
dated after the initial decision, which shows that he filed a Freedom of
Information Act (FOIA) request with the agency, asking whether certain
individuals had a history of military service. Id. at 7 -8. He also submitted the
agency’s response, altogether denying the FOIA request. 0344 PFR File, Tab 4
at 9-10. Despite the appellant’s general assertion that he has new evidence, he
has not shown that the information containe d is new and material, or even related
to the dispositive issue of collateral estoppel. See Lewis v. Department of
Defense , 123 M. S.P.R. 255 , ¶ 9 (2016) (recognizing that the Board may grant a
petition for review based on the availability of new and material evidence , but to
constitute new evidence, the information contained in the documents, not just the
documents themselves, must h ave been unavailable despite due diligence when
the record closed); Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980)
(explaining that evi dence is material if it is of sufficient weight to warrant an
outcome different from that of the initial decision).
7
¶10 In sum, the appellant has failed to present any basis for us to disturb the
administrative judge’s application of collateral estoppel in thi s, the appellant’s
second , USERRA appeal concerning his nonselection for promotion.
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 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).
5 Since the issuance of the initial decision in this mat ter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the 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, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
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 Fe deral 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 revi ew of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial r eview of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 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 | PHAN_VINH_DE_4324_17_0344_I_1_FINAL_ORDER_2039265.pdf | 2023-06-08 | null | DE-4324 | NP |
3,037 | https://www.mspb.gov/decisions/nonprecedential/BASS_BUDEIA_V_NY_0845_17_0098_I_1_REMAND_ORDER_2039270.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BUDEIA V. BASS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-0845 -17-0098 -I-1
DATE: June 8, 2023
THIS ORDER IS NONPRECEDENTIAL1
Budeia V. Bass , New York, New York, pro se.
Carla Robinson , 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 i nitial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
that she had been overpaid in disability retirement benefits and that collection of
the overpayment would not be waived. Generally, we grant petitions s uch 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
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
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 fa cts 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 fo r review. We AFFIRM the initial
decision as to the existence and amount of the overpayment and the waiver issue .
However, for the reasons discussed below, we REMAND the case to the field
office for further adjudication con cerning the collection schedule .
BACKGROUND
¶2 On February 2, 2017, OPM issued a final decision notifying the appellant
that she had received a Federal Employees’ Retirement System (FERS) disability
retirement annuity overpayment , which OPM intended to collect . IAF, Tab 7
at 9-12. Spe cifically, OPM found that the appellant began receiving her FERS
disability retirement annuity effective August 16, 2007, and became entitled to
Social Security Disability Insurance benefits effective December 1, 2007 , on
which date the FERS annuity should have been reduced by a statutorily required
amount. Id. at 9. However, OP M did not reduce the FERS annuity until
September 1, 2013, and as a result, it had overpaid the appellant a total of
$67,425.00 in FERS disability retirement annuity. Id. at 9-10. OPM notified the
appellant that it intended to collect the overpayment in 71 monthly installments of
$142.99 and a final installment of $76.71. Id. at 12.
3
¶3 The appellant appealed OPM’s final decision to the Board , alleging that she
did not know that she was receiving an overpayment and seeking a waiver of
recovery based on OPM’s 81-month delay in reducing her annuity. IAF, Tabs 1,
5. She waived her right to a hearing. IAF, Tab 1 at 1 .
¶4 After the record closed, t he administrative judge issued an initial decision
affirming OPM’s final decision. IAF, Tab 10, Initial Decision (ID). She found
that OPM proved the existence and amount of the overpayment and that the
appellant did not prove entitlement to waiver of recovery of the debt. ID at 3-5.
She furth er found that OPM notified the appellant of her obligation to set aside
any monies received from the Social Security Administration. ID at 4. The
administrative judge also found that, while the appellant’s medical conditions
rendered her incapable of con tinuing in the workforce, the appellant did not
demonstrate that her medical conditions were so severe that she was unable to
understand OPM’s guidance. Id. Therefore, the appellant knew or should have
known that she was receiving erroneous payments from OPM and that she was
obligated to return that money to OPM. Id. Thus, the administrative judge
concluded that the appellant should have set aside the Social Security payments
and she was not eligible for waiver of collection of the overpayment. ID at 5.
¶5 The appellant has petitioned for review, asserting that the administrative
judge erred in finding that she did not challenge the amount of the overpayment.
Petition for Review ( PFR) File, Tab 1 at 1. She also contends that the
administrative judge improperly found that she notified OPM that she received
Social Security benefits. Id. Additionally, the appellant contends that her
medical documentation was disregarded. Id. OPM has not responded to the
petition.
ANALYSIS
¶6 OPM bears the burden of proving by preponderant evidence the existence
and amount of an annuity overpayment. Vojas v. Office of Personnel
4
Management , 115 M.S.P.R. 502 , ¶ 10 (2011); 5 C.F.R. §§ 845.307 (a),
1201.56(b)(1)(ii). We agree with the administrative judge that OP M satisfied its
burden in this case . ID at 3. As noted, the appellant asserts that the
administrative judge erred in finding that she did not challenge the amount of the
overpayment; according to the appellant, she did so by requesting her disability
retirement record. PFR File, Tab 1. However, regardless of whether the
appellant was attempting to challenge the amount of the overpayment, the
disability retirement record that the appellant was seeking was submitted by OPM
and is part of the record in thi s appeal. IAF, Tab 7 at 26 -33. The appellant has
not demonstrated any error in that disability retirement record.
¶7 Recovery of an overpayment in FERS disability retirement benefits will be
waived when the annuitant is without fault and recovery would be a gainst equity
and good conscience. 5 U.S.C. § 8470 (b); 5 C.F.R. § 845.301 ; see Spinella v.
Office of Personnel Management , 109 M.S.P.R. 185 , ¶ 6 (2008). Generally,
recovery is against equity and good conscience when it would cause financial
hardship, the a nnuitant can show that because of the overpayment she
relinquished a valuable right or changed positions for the worse, or recovery
could be unconscionable under the circumstances. 5 C.F.R. § 845.303 ; see
Spinella , 109 M.S.P.R. 185 , ¶ 6. The unconscionability standard is a high one
and the Board will waive recover y of an annuity overpayment based on
unconscionability under only exceptional circumstances. Spinella , 109 M.S.P.R.
185, ¶ 7. In considering whether an appellant has established unconscionability,
the Board will consider all relevant factors under a “totality -of-the-
circumstances” approach. Vojas , 115 M.S.P.R. 502 , ¶ 22. Those circumstances
may include, as relevant here, circumstances in which the annuitant’s personal
limitations, including lack of education, physical or mental disability, or other
factors that would make recovery of the payment manifestly unfair. King v.
Office of Personnel Management , 114 M.S.P.R. 181 , ¶ 20 (2 010).
5
¶8 We agree with the administrative judge that the appellant did not prove that
she has such personal limitations that would make recovery of the overpayment
manifestly unfair. ID at 4. Contrary to the appellant’s contention in her petition
for review , the administrative judge considered her medical condition s. Id.; PFR
File, Tab 1. We agree with the administrative judge that, although the appellant’s
medical conditions rendered her incapable of continuing in the workforce, the
evidence does not show that that her physical or mental conditions were so severe
that she was unable to understand OPM’s guidance . Thus, the appellant’s
conditions do not provide a basis to waive collection of the overpayment. ID at 4.
The administrative judge’s failure to specifically mention all of the medical
evidence of record does not mean that she did not consider it in reaching her
decision. See 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).
¶9 OPM’s Policy Guidelines provide that individuals who know or suspect that
they are receiving overpayments are expected to set aside the amount overpaid
pending recoupment, and that, absent exceptional circumstances , recovery in
these cases is not against equity and good conscience. IAF, Tab 7 at 80, 91
(Policy Guidelines of the Disposition of Overpayments under the Civil Service
Retirement System and Federal Employees’ Retirement System § I.C.4); see
Wright v. Office of Personnel Management , 105 M.S.P. R. 419 , ¶ 4 (2007). This is
known as the “set aside rule.”
¶10 We agree with the administrative judge that the appellant in this case was
subject to the set aside rule, and that OPM notified her of the obligation to set
aside monies received from the Social S ecurity Administration that constituted
duplicate payments. ID at 4; IAF, Tab 7 at 46. Additionally, OPM submitted a
copy of the Social Security Administration’s notice to the appellant that she was
entitled to a monthly disability benefit. IAF, Tab 7 a t 39. It appears that the
appellant submitted this notice to OPM and her assertion in her petition for
review that she did not notify OPM that she had received Social Security
6
disability benefits is unavailing. Id. at 38. In sum, the administrative judg e
properly found that the appellant was subject to the set aside rule and thus, she
was not entitled to waiver of collection of the overpayment.
¶11 Nevertheless, a n annuitant who is ineligible for waiver of recovery of an
overpayment may be entitled to an adjustment in the recovery schedule if she
shows, based on the information submitted on OPM’s Financial Resources
Questionnaire (FRQ), that the collection schedule would cause her financial
hardship. Malone v. Office of Personnel Management , 113 M.S.P.R. 104 , ¶ 4
(2010); 5 C.F.R. § 845.301 . Although this pro se appellant has not explicitly
contested the repayment schedule on petition for review, in her final submission
below , received after the record closed, she submitted a copy of an FRQ , dated
October 25, 2016 . IAF, Tab 12.2 The appellant asserted that she had submitted
the FRQ to OPM with her reconsideration request , but that OPM had failed to
consider this information in formulating the collection schedule. IAF, Tab 7
at 12, Tab 12 at 7-15. The appellant included evidence that the FRQ had been
sent to OPM by certified mail on October 26, 2016. IAF, Tab 12 at 15.
¶12 Based on the 2016 FRQ, it appears that the appellant may be unable to make
repayments a s scheduled by OP M without financial hardship . Considering her
attempt to have OPM consider the FRQ and then, albeit in an untimely
submission, to provide it below, we find it appropriate to consider whether an
adjustment of the recovery schedule is warranted . B ecause more than 6 years
have passed since the appellant completed th e FRQ, it is likely that her financial
situation has changed , and she should be afforded an opportunity to file additional
evidence and argument addressing the issue , including an updated FRQ . Thus,
we remand this appeal to the administrative judge for further adjudication o f this
issue.
2 The appellant’ s final filing was received in the New York Field Office on May 26,
2017, one day after the administrative judge issu ed the initial decision and 4 days after
the date the record close d. IAF, Tab 12.
7
¶13 As explained above, the existence and the amount of the overpayment are
not at issue. Nor is the appellant entitled to a waiver of the collection. The sole
issue for adjudication on remand will be the collection schedule.3
ORDER
¶14 For the reasons discussed above, we remand this case to the New York Fi eld
Office for further adjudication in ac cordance with this Remand Order.
FOR THE BOARD:
Washington , D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
3 The appellant is notified that OPM has advised the Board that it may seek recovery
from an annuitant’s estate or other responsible party of any debt remaining upon his or
her death. A party responsible for any debt remaining upon an a nnuitant’s death may
include an heir (spouse, child, or other) who derives a benefit from the annuitant’s
Federal benefits, an heir or other person acting as the representative of his or her estate
if, for example, the representative fails to pay the Unite d States before paying the
claims of other creditors in accordance with 31 U.S.C. § 3713 (b), or transferees or
distribute[r]s of the annuitant’s estate. Pierotti v. Office of Personnel Management ,
124 M.S.P.R. 103 , ¶ 13 (2016). | BASS_BUDEIA_V_NY_0845_17_0098_I_1_REMAND_ORDER_2039270.pdf | 2023-06-08 | null | NY-0845 | NP |
3,038 | https://www.mspb.gov/decisions/nonprecedential/DONALDSON_ROBERT_DONNELL_DC_0752_13_1200_B_2_FINAL_ORDER_2039440.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT DONNELL DONAL DSON,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBERS
DC-0752 -13-1200 -B-2
DC-3330 -17-0679 -I-1
DATE: June 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert Donnell Donaldson , Landover, Maryland, pro se.
Donald J. Thornley , Esquire, and Patricia Reddy -Parkinson , Norfolk,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Li mon, Member
FINAL ORDER
¶1 The appellant has filed petitions for review of two initial decisions. The
initial decision issued in MSPB Docket No. DC -0752 -13-1200 -B-2 found that the
appellant did not prove his discrimination claim under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), as he failed to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
proffer any evidence demonstrating that the agency furloughed him in 2013 or
failed to provide retention rights due to his military status. The initial decision
issued in MSPB Docke t No. DC -3330 -17-0679 -I-1 denied the appellant’s request
for corrective action under the Veterans’ Employment Opportunity Act of 1998
(VEOA), as he did not identify any right under a statute or regulation relating to
veterans’ preference that the agency vi olated when furloughing him for 6 days in
2013. Generally, we grant petitions such as these only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretati on of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abus e of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal R egulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in these appeals, we JOIN them.2 We conclude that the
petitioner has not established any basis u nder section 1201.115 for granting either
petition for review. Therefore, we DENY the petitions for review and AFFIRM
the initial decisions, which are now the Board’s final decisions. 5 C.F.R.
§ 1201.113 (b).
¶2 The appellant filed the same petition for review in these appeals.
Donaldson v. Department of the Navy , MSPB Docket No. DC -0752 -13-1200 -B-2,
Petition for Review (1200 PFR) File, Tab 1 at 4 -5; Donaldson v. Department of
the Navy , MSPB Docket No. DC -3330 -17-0679 -I-1, Petition for Review
2 Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite processing of the cases and not adversely impact the interests of the
parties. Tarr v. Depart ment of Veterans Affairs , 115 M.S.P.R. 216 , ¶ 9 (2010); 5 C.F.R.
§ 1201.36 (a)(2). The appellant’s two appeals here, with the same set of operative facts,
meet this criterion and are joined as a result.
3
(0679 PFR) File, Tab 1 at 4 -5. He challenges both initial decisions by claiming
that the administrative judge did not cite to proper authority to support the
conclusions, failed to address each of his allegations, and did not rule on all
material matters. 1200 PFR File, Tab 1 at 4; 0679 PFR File, Tab 1 at 4. There is
no requirement that an administrative judge respond to every theory and
speculation set forth by an appellant. Marques v. Departmen t of Health and
Human Services , 22 M.S.P.R. 129 , 132 (1984) (stating that an administrative
judge’s failure to mention all of the evidence of record does not mean that he did
not consider it in reaching his decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). Initial decisions must contain findings of fact and conclusions of law for
the material issues presented in the record, along wi th the corresponding reasons
or bases. 5 C.F.R. § 1201.111 (b)(1) -(2); see Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980). Our review concludes that the initial
decisions issued in both cases meet this standard.
¶3 In his petition for review and throughout the adjudication of his VEOA
appeal, the appellant continuously claimed that an agency officer advised
employees prior to the 2013 furlough that “retention rights” would be afforded.
0679 PFR File, Tab 1 at 4 -5. However , any mention of “retention rights” by the
agency in this setting would not create any additional rights for employees
outside of those already contained in laws and regulations.3 Misinformation is
not a valid source of rights. See Martin v. U.S. Postal Service , 101 M.S.P.R. 634 ,
¶ 5 (2006) (holding that an agency misinforming the appellant of her appeal rights
did not confer Board jurisdiction where it does not otherwise exist); see also
Office of Personnel Management v. Richmond , 496 U.S. 414 , 416, 434 (1990)
3 Retention rights are applicable during a reduction in force (RIF). See 5 C.F.R.
§§ 351.501 -351.506. Agencies must conduct furloughs of more than 30 days according
to the RIF procedures of 5 C.F.R. part 351, and the Board will review such actions to
determine whether the agency properly invoked and applied the RIF regulations. Salo
v. Department of Defense , 122 M.S.P.R. 417 , ¶ 6 (2015). As in this case, agencies may
conduct a furlough of 30 days or less without following RIF procedures. Id.
4
(holding that that the Government cannot be estopped from denying benefits not
otherwise permitted by law even if the claimant was denied benefits because of
her reliance on the mistaken advice of a Government official). Here, the
appellant did not identi fy any right under a statute or regulation relating to
veterans’ preference that the agency violated when furloughing him for 6 days in
2013.
¶4 Accordingly, we affirm the initial decision.
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 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.
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 ca nnot advise which option is most appropriate in any matter.
5
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information 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,
6
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.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 an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 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.5 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 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.
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 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 | DONALDSON_ROBERT_DONNELL_DC_0752_13_1200_B_2_FINAL_ORDER_2039440.pdf | 2023-06-08 | null | DC | NP |
3,039 | https://www.mspb.gov/decisions/nonprecedential/HOWARD_CAROL_H_SF_1221_15_0609_B_1_FINAL_ORDER_2038673.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CAROL H. HOWARD,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
SF-1221 -15-0609 -B-1
DATE: June 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Yolanda Flores -Burt , Esquire, Hesperia, California, for the appellant.
Stuart Bauch , Esquire, Stockton, California, for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has file d a petition for review of the remand 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 decisi on 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 co urse 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
VACATE the administrative judge’s alternative finding that the agency proved by
clear and convincing evidence that it would have taken the same action in the
absence of the alleged disclosures or activities, we AFFIRM the initial decision.
¶2 The appellant f iled this IRA appeal, concerning her July 2014 removal for
physical inability to perform the duties of her Correctional Treatment Specialist
position. Howard v. Department of Justice , MSPB Docket No. SF -1221 -15-0609 -
W-1, Initial Appeal File (IAF), Tab 1. After developing the record and holding
the requested hearing, the administrative judge denied the appellant’s request for
corrective action. IAF, Tab 36, Initial Decision (ID). In doing so, his decision
addressed only one disclosure –that her facility w as utilizing unlicensed
psychologists. ID at 9, 11. While the administrative judge found that the
appellant presented a prima facie case of whistleblower retaliation, he also found
that the agency met its burden of proving that it would have taken the sa me action
in the absence of the disclosure. ID at 11 -23.
¶3 On review, the Board vacated the initial decision and remanded for further
adjudication. Howard v. Department of Justice , MSPB Docket No. SF -1221 -15-
0609 -W-1, Remand Order (RO) (Sept. 9, 2016). The Board found that the
administrative judge failed to address all of the disclosures or activities the
3
appellant identified as motivating her removal. RO, ¶¶ 8 -12. The remand order
identified the appellant’s disclosures or activities as follows:
1. The lack of a RESOLVE program, allegedly in violation of the
agency’s guidelines;
2. All full-time psychology services were vac ated at the camp and staff
were called into work on an as -needed basis, allegedly to save costs
so that the executive staff could receive bonuses;
3. An inmate was not treated appropriately by the Chief of Psychology
after she alleged she had been threatened by other inmates;
4. Reprisal for allegations of discrimination that she raised in 2014 on
behalf of herself and others in her role as a u nion representative, and
reprisal for her own equal employment opportunity (EEO)
complaints;
5. A particular employee had a degree in philosophy, not psychology,
but was permitted to practice on inmates, which was illegal and
harmful; and
6. The agency hired u nlicensed psychologists to practice on inmates.
RO, ¶¶ 9 -10.
¶4 On remand, the administrative judge further developed the record, without
holding an additional hearing, then , once again denied the appellant’s request for
corrective action. Howard v. Department of Justice , MSPB Docket No. SF -1221 -
15-0609 -B-1, Remand Appeal File (RAF), Tab 19, Remand Initial Decision
(RID). The appellant has filed a petition for review. Remand Petition for Review
(RPFR) File, Tab 1 at 4 -18.
The administrative judge did not improperly deny the appellant a remand hearing.
¶5 As an initial matter, the appellant argues that the administrative judge
improperly denied her the opportunity to hold another hearing during the remand
proceedings. E.g., RPFR File, Tab 1 at 4. How ever, despite the appellant’s
suggestion to the contrary, our remand order did not require a hearin g—it
instructed the administrative judge to determine if additional hearing testimony
was necessary. RO, ¶ 13. The administrative judge followed that instr uction and
afforded the parties the opportunity to explain whether additional hearing
4
testimony was needed. RAF, Tab 8 at 3. Although the appellant responded by
indicating that she did wish to elicit additional testimony, the administrative
judge was not persuaded that it was necessary. RAF, Tab 9 at 5, Tab 12 at 1.
The appellant did not, for example, allege that the initial hearing was improperly
limited to the sole disclosure addressed in the initial decision, such that additional
testimony would be r equired to develop the other disclosures and activities we
identified in our remand order. And while we reviewed both the prehearing
summary and hearing transcript from the original proceedings, we found no such
limitations. IAF, Tab 29, Tab 35, Hearing Recording; Hearing Transcript (HT).
It appears that the administrative judge’s initial hearing in this case afforded the
appellant the latitude to develop any disclosure or activity she wished. E.g., HT
at 45 -46. Therefore, we find no impropriety in the administrative judge’s
decision to hold no additional hearing.
The appellant failed to meet her burden of proving that she made a protected
disclosure or engaged in protected activi ty relevant to this IRA appeal.
¶6 Turning to the substance of the instant a ppeal, the Board has jurisdiction
over an IRA appeal if the appellant exhausts her administrative remedies befo re
the Office of Special Counsel (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 activ ity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a). 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Yunus v. Department of Veterans
Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001).
¶7 If an appellant establishes jurisdiction over her IRA appeal, she is entitled
to a hearing on the merits of her claim, which she must prove by preponderant
evidence. Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016).
If the appellant makes such a showing, the burden shifts to the agency to prove by
5
clear and convincing evidence that it would have taken the same action in the
absence of the disclosure. Id.
¶8 In the remand initial decision, the administrative judge found that the
appellant presented nonfrivolous allegations that each of the 6 disclosures or
activities at issue was protected. RID at 13 -14. He also found that the appellant
presented nonfrivolous allegations that ea ch was a contributing factor in her
removal through the knowledge/timing test. RID at 14. Therefore, the
administrative judge determined that the appellant met her jurisdictional burden
for each of the six enumerated disclosures or activities. Id. He t hen turned to the
question of whether the appellant met the higher burden of proving the merits of
her claim, but found that she did not. The administrative judge concluded that the
appellant failed to prove, by preponderant evidence, that she made a prot ected
disclosure or engaged in protected activity.2 RID at 14 -19.
¶9 A protected disclosure is a disclosure of information that the appellant
reasonably believes evidences a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of fun ds, an abuse of authority, or a substantial
and specific danger to public health or safety. Shannon v. Department of
Veterans Affairs , 121 M.S.P.R. 221 , ¶ 22 (2014). The proper test for assessing
whether a protected disclosure occurred is an objective one: Could a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee reason ably conclude that the actions of the
2 The administrative judge further found that, even if the appellant had met her burden
of establishing a prima facie case, the agency met its burden of proving t hat it would
have taken the same action in the absence of her disclosures or activities. RID at 19 -31.
However, as we explained in our remand order, the Board may not proceed to the clear
and convincing evidence test unless it has first made a finding th at the appellant
established her prima facie case . RO, ¶ 14; see 5 U.S.C. § 1221 (e)(2) ; Scoggins v.
Department of the Army , 123 M.S.P.R. 592 , ¶ 28 (2016) . Accordingly, we must vacate
the administrative judge’s alternative findings. See RID at 19 -31.
6
Government evidence one of the categories of wrongdoing identified in 5 U.S.C.
§ 2302 (b)(8)(A)? Id.
¶10 As will be discussed further below, the appellant’s petition for review
contains very little argument pertaining to her disclosures or activities, i.e. ,
whether they were protected and whether they were a contributing factor in her
removal. Moreover, of the limited argument the appellant did present, she
generally failed to support it by identifying specific and relevant evidence from
the record. See 5 C.F.R. § 1201.115 (a)(2) (requiring that a petition for review
explain why the challeng ed factual determination is incorrect and identify
specific evidence in the record that demonstrates the error); Tines v. Department
of the Air Force , 56 M.S.P.R. 90 , 92 (1992) (explaining that a petition for review
must contain sufficient specificity to enable the Board to ascertain whether there
is a serious evidentiary challenge justifying a complete review of the record).
Disclosure 1
¶11 As described by OSC’s predetermination letter and noted in our remand
order, disclosure 1 involved the lack of a RESOLVE program, allegedly in
violation of the agency’s guidelines. RO, ¶ 9; IAF, Tab 27 at 430. The
administrative judge found that while the appellant did request the program,
which was intended to help inmates deal with trauma that predated their
incarceration, the appellant failed to prove that her request was a protected
disclosure. RID at 15. In doing so, the administrative judge refe renced the email
chain in which the appellant apparently made this disclosure. The email chain
begins with the appellant making a number of suggestions, including the
following: “I believe we are suppose[d] to have a Resolve Program. I have
mentioned th is for years and to date there has been no program.” IAF, Tab 18
at 132-33. The recipient responded by indicating that he also wanted the
program, and he had requested it, but there was no timeline yet for receiving it.
Id. at 132.
7
¶12 On review, the appe llant provides only a brief argument concerning
disclosure 1. She suggests that there was other evidence in support of this being
a protected disclosure. RPFR File, Tab 1 at 8. However, the appellant failed to
identify what that evidence was or where it may be located in the record. She did
reference a document included with her petition, but it is not apparent how that
document is of any relevance to the apparent lack of a RESOLVE program.
Compare id . at 8 (referencing “Exhibit 5 -5b”), with RPFR File, Tab 2 at 4 -6 (an
unex plained document identified as E xhibit 5 -5b, which appears to be part of a
blog posting that describes life as an inmate at the appellant’s former facility).
¶13 The appellant also argues that “a disinterested observer would find
someth ing wrong with an agency not providing a Trauma Program to female
inmates.” RPFR File, Tab 1 at 8. Even if we agreed that there is “something
wrong” with a correctional facility lacking a trauma program , that is not what the
appellant disclosed. The rec ord shows that she discussed the lack of a very
specific program, and she has presented no basis for us to conclude that the
absence of that particular program reflected a specific type of wrongdoing
described in section 2302(b)(8), or that she reasonably believed it was.
Accordingly, we find no basis for reaching a conclusion contrary to the
administrative judge. The appellant has failed to meet her burden of proving that
disclosure 1 was protected.
Disclosure 2
¶14 As described by OSC’s predetermination let ter and noted in our remand
order, disclosure 2 reportedly involved full -time psychology services being
vacated from an agency facility and staff being called into work on an as -needed
basis, allegedly to save costs so that the executive staff could receiv e bonuses.
RO, ¶ 9; IAF, Tab 27 at 430. The administrative judge found that while the
appellant presented testimony alleging that she made a disclosure about this
matter, the appellant failed to prove that she had a reasonable belief that the
8
disclosure described the type of wrongdoing described in section 2302(b)(8).
RID at 16.
¶15 On review, the appellant does not appear to present any particularized
argument about disclosure 2. She does describe an interaction when she
reportedly asked one agency offic ial why her facility lacked funds for drug
programs, the official responded by indicating that the agency did have associated
funding, the appellant asked where the money was, and the official directed her to
another agency official for more information. RPFR File, Tab 1 at 13. The
appellant goes on to state that she “was not aware at that time that the
managers . . . were giving themselves bonuses with the money.” Id. However,
this interaction does not appear to be the alleged disclosure the appellant
discussed below. Compare id. , with HT at 49 -50, 61 (testimony from the
appellant, suggesting that she contacted Congress to inform them of a unit that
was available but unfilled, possibly to save money and be rewarded with
bonuses). Even if it were, the appellant’s own description on review
demonstrates that she did not disclos e any improper use of funding –she merely
asked for more information about funding.
¶16 Although the appella nt did not present any particularized arguments about
the disclosure described in her hearing testimony, we note the following, to
bolster the administrative judge’s findings. While the appellant reportedly
disclosed that a unit was available but unfilled , possibly so that agency officials
could save money and be rewarded with bonuses, those allegations are lacking in
detail. See Rzucidlo v. Department of the Army , 101 M.S.P.R. 616 , ¶ 13 (2006)
(recognizing that a disclosure must be specific and detailed, not a vague
allegation of wrongdoing regarding broad or imprecise matters). She does not
appear to present, for example, a per suasive argument that the failure to use this
unfilled unit amounted to gross mismanagement or a substantial and specific
danger to public health or safety, rather than purely a discretionary policy
decision. See 5 U.S.C. § 2302 (b)(8); O’Donnell v. Department of Agriculture ,
9
120 M.S.P.R. 94, ¶ 14 (2013) (holding that an app ellant’s alleged protected
disclosure was “exactly the type of fairly debatable policy dispute that does not
constitute gross mismanagement”), aff’d , 561 F. App’x 926 (Fed. Cir. 2014).
Disclosure 3
¶17 As described by OSC’s predetermination letter and noted i n our remand
order, disclosure 3 reportedly involved an inmate being treated inappropriately by
the Chief of Psychology after she alleged she had been threatened by other
inmates. RO, ¶ 9; IAF, Tab 27 at 430. The administrative judge found that while
the appellant presented some testimony alleging that a clinician purposefully
misdiagnosed an inmate, she failed to meet her burden of proof because the
appellant offered nothing else to support the claim or the alleged disclosure. RID
at 16.
¶18 On review, the appellant disagrees with the administrative judge’s findings,
once again suggesting that there was additional documentary evidence in support
of disclosure 3. RPFR File, Tab 1 at 8. However, she has once again failed to
identify what that additional evid ence might be or where we might find it in the
record. The appellant merely refers to “Exhibit 4,” which we assume is a
reference to the evidence she attached to her petition, but that evidence consists
only of news articles, blog postings, and an adverti sement for legal services, none
of which appear particularly relevant to the appellant’s burden of proof. RPFR
File, Tab 1 at 8, 19, 36 -41, Tab 3 at 4 -8.
Disclosure or activity 4
¶19 As described by OSC’s predetermination letter and noted in our remand
order , disclosure or activity 4 reportedly involved allegations of discrimination
that she raised in 2014 on behalf of herself and others in her role as a union
representative, and reprisal for her own EEO complaints. RO, ¶ 9; IAF, Tab 27
at 430. The administ rative judge found that while the appellant report edly filed
EEO complaints, the substance of those complaints did not seek to remedy
10
whistleblower reprisal, so they did not constitute protected disclosures or
activities for purposes of this IRA appeal. R ID at 17; see, e.g. , Edwards v.
Department of Labor , 2022 MSPB 9 , ¶ 25 (finding that the Board lacked
jurisdiction over the appellant’s EEO reprisal claim under 5 U.S.C.
§ 2302 (b)(9)(A)(i) because his EEO complaint sought to remedy Title VII -related
matters, not whis tleblower reprisal); cf. Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365 , ¶ 7 (2013) (recognizing that under the Whistleblowe r
Protectio n Enhancement Act of 2012 , the Board’s jurisdiction in IRA appeals was
expanded to cover claims of reprisal for EEO complaints in which the appellant
sought to remedy whistleblower reprisal).
¶20 On review, the appellant asserts that the administrat ive judge failed to
address her claims of reprisal for assisting a coworker. RPFR File, Tab 1 at 8;
see generally Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446 , ¶¶ 4 -6
(2014) (finding that, in the context of an IRA appeal, the Board has jurisdiction
over claims of retaliation for lawfully assisting a coworker in a grievance
proceeding). But again, the appellant has fail ed to specifically identify evidence
in support of any such activity. Our remand order did recognize that the
appellant’s correspondence with OSC involved “allegations of
discrimination -related issues [the appellant] raised in 2014 on behalf of others
and [herself] in [her] role as a union representative.” IAF, Tab 27 at 430; RO,
¶ 9. However, we have yet to find a clear articulation of pertinent details, such as
when this activity may have occurred, what it involved, and how it may have
contributed to t he personnel action before us. We also are unable to determine
what, if any, pertinent evidence the appellant submitted in support of this activity.
The appellant’s remand petition refers only to “a prior deposition, emails, etc.”
RPFR File, Tab 1 at 8. Absent more information, we will not pour through the
voluminous record or disturb the administrative judge’s findings on disclosure or
activity 4. See 5 C.F.R. § 1201.115 (a)(2); Tines , 56 M.S.P.R. at 92.
11
Disclosure 5
¶21 As described by the appellant in response to OSC’s predetermination letter
and noted in our remand order, disclosure 5 reportedly involved an employee
having a degree in philosophy, not psychology, but being permitted to practice on
inmates, which was illegal and harmful. RO, ¶ 10; IAF, Tab 27 at 435. The
administrative judge found that the appellant made the conclusory assertion that
this individual’s employment was “against the law,” but she offered little else on
the matter. RID at 17 -18. He further found that, without more, the appellant
failed to meet her burden of proving that this was a protected disclosure. Id. On
review, we are unable to locate any argument about this matter. Therefore, we
will not revisit or disturb the administrative judge’s conclusion.
Disclosure 6
¶22 As described by the appellant in response to OSC’s predetermination letter
and noted in our remand order, disclosure 6 reportedly involved the agency hiring
unlicensed psychologis ts to practice on inmates. RO, ¶ 10; IAF, Tab 27 at 435.
The administrative judge found that while the appellant did make this disclosure,
agency officials responded by informing her that licenses were not required. RID
at 18-19. He further found that, considering the information readily available to
her, a disinterested observer could not have reasonably concluded that this
disclosure evidences a violation of any of the categories described in
section 2302(b)(8).3 RID at 19.
¶23 On review, the appellant summarily asserts that a disinterested person
would see wrongdoing in the agency’s use of unlicensed psychologists. RPFR
File, Tab 1 at 7. However, the appellant has not identified any pertinent law,
3 This conclusion is contrary to the administrative judge’s prior c onclusion about the
same disclosure. Compare ID at 11 -12, with RID at 18 -19. However, we vacated the
entirety of the initial decision, so it was not improper to revisit this disclosure and come
to a different conclusion. See RO, ¶¶ 13 -14.
12
rule, or regulation concerning the same. The only sup port she provides is a
reference to evidence attached to her petition. RPFR File, Tab 1 at 7, 36 -41,
Tab 3 at 4 -8. But, again, even if we were to consider that evidence, it consists of
news articles, blog postings, and an advertisement for legal services , none of
which appear relevant to the dispositive question of whether disclosure 6 was
protected. Separately, the appellant argues that the agency failed to present any
evidence, aside from hearing testimony, to confirm that licenses were not
required fo r the agency’s psychologists. RPFR File, Tab 1 at 11. However, it
was the appellant’s burden of proving that disclosure 6 was protected. Supra
¶¶ 6-7. Her conclusory assertion that the use of unlicensed psychologists
amounts to wrongdoing does not sati sfy that burden.
The appellant’s remaining arguments and evidence on review are unavailing.
¶24 We recognize that the appellant attached a significant amount of evidence to
her petition, some of which is mentioned above. RPFR File, Tab 1 at 19 -41,
Tab 2 at 4 -35, Tab 3 at 4 -11. To the extent that the appellant is attempting to
introduce evidence that was not already included in the record below, she has
failed to show that it is new and material. Therefore, we will not consider it
further. See Avansino v. U. S. Postal Service , 3 M.S.P.R. 211 , 214 (1980)
(recognizing that, pursuant to 5 C.F.R. § 1201.115 , the Board will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despite the party’s due
diligence); see also Grassell v. Department o f Transportation , 40 M.S.P.R. 554,
564 (1989) (explaining that, to constitute new and material evidence, the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due dil igence when the record closed); Russo v.
Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (recognizing that evidence
13
is material when it is of sufficient weight to warrant an outcome different from
that of the initial dec ision).4
¶25 The appellant also asserts that she lacked access to the hearing recording
cited by the administrative judge throughout his decision. RPFR File, Tab 1 at 4.
However, the appellant has failed to identify whether or where she noted the same
below and requested access. See id . Moreover, even if she did lack access to the
hearing recording, the appellant has not shown it was consequential, since she did
not similarly allege that she lacked access to the hearing transcript. See HT.
¶26 Next, we also recognize the appellant’s suggestions of bias on the part of
the administrative judge. RPFR File, Tab 1 at 4, 10. However, we are not
persuaded. See Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed.
Cir. 2002) (stating that 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”) (quoting Liteky v. United States , 510 U.S. 540,
555 (1994)).
¶27 Finally, we note that the vast majority of the appellant ’s petition is
dedicated to arguments concerning whether her removal was justified, i.e. ,
whether the agency proved by clear and convincing evidence that it would have
taken the same action in the absence of her protected activity. E.g., RPFR File,
Tab 1 at 5-14. However, we cannot address whether the agency met its burden of
proof because the appellant failed to first meet hers. See supra ¶ 8 n.2 . And
while the appellant’s petition also includes several other assertions of agency
4 For the sam e reason, we deny the appellant’s motion s to submit additional evidence
obtained while awaiting the instant decision. See RPFR File, Tab s 6, 8. According to
the appellant, that additional evidence consists of a new memorandum from a
Congressional subcommittee regarding employee discipline at the Bureau of Prisons ,
RPFR File, Tab 6 at 4, and a news article, RPFR File, Tab 8 at 4 . However, the
appellant has not given us any reason to believe that the information contained within is
new and material .
14
wrongdoing, such as ge nder discrimination, inadequate discipline of inmates,
staff shortages, and inappropriate relationships among employees, e.g., RPFR
File, Tab 1 at 14 -15, none appear relevant to the limited matters exhausted before
OSC and properly before us in this IRA appeal.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 whic h to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropr iate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law appl icable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choic es of review
below to decide which one applies to your particular case. If 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 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.
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 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
16
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
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 .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, 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 Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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 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.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 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
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.
18
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.c afc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board ne ither 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 lin k below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Ev erling
Acting Clerk of the Board | HOWARD_CAROL_H_SF_1221_15_0609_B_1_FINAL_ORDER_2038673.pdf | 2023-06-07 | null | SF-1221 | NP |
3,040 | https://www.mspb.gov/decisions/nonprecedential/PETERSON_AHMAD_AT_3330_16_0738_I_1_FINAL_ORDER_2038691.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AHMAD PETERSON,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
AT-3330 -16-0738 -I-1
DATE: June 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ahmad Peterson , Lady Lake, Florida, pro se.
James Sellars , 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
findings of material fact; the initi al decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consis tent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . We also VACATE the
initial decision and DENY the appellant’s request for corrective action.
¶2 The agency advertised for a Correctional Officer position at the Bureau of
Prisons (BOP) in Coleman, Florida , under vacancy announcement number
COA -2016 -0034 . The vacancy was open to current BOP employees and to certain
categories of Department of Justice employees not relevant here; the position was
to be filled via merit promotion procedures. Init ial Appeal File (IAF), Tab 5
at 25. The appellant was at tha t time a Correctional Officer with the BOP in
Coleman, the same location as the vacant position. IAF, Tab 4 at 14. He applied,
but the agency found him ineligible for consideration. Id. at 47 -48. After
exhausting his administrative remedies, IAF, Tab 1 at 7 -8, Tab 4 at 45, the
appellant filed this appeal. In an initial decision issued on the written record, the
administrative judge found that the appellant did not show that the agency
violated a statute or regulation pertaining to veterans ’ preference. IAF, Tab 15,
Initial Decision at 2, 6.
¶3 The appellant petitions for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency responds in opposition to the petition for
review , and the appellant replies to the agency’s response. PFR File, Tabs 3 -4.
¶4 The vacancy announcement was open to internal candidates only; the
agency was not obligated to consider applicants who applied pursuant to special
3
hiring authorities, such as the one applicable to 30% or more disabled veterans.
When t he appellant submitted his application, he completed the section for 30%
or more disabled veterans. IAF, Tab 4 at 19 -20. Based on that, the agency
determined that he was ineligible for consideration. Yet, it was obvious from his
application that the app ellant was an internal candidate who worked as a
Correctional Officer for BOP in Coleman, Florida. Id. at 23, 25, 33. An
applicant who seeks a veterans’ preference must provide the agency with
sufficient proof of his entitlement to the preference. Russe ll v. Department of
Health and Human Services , 117 M.S.P.R. 341 , ¶ 11 (2012). However, the
agency may not deprive the applicant of his rights merely because he makes a
minor mistake in submitting his application, at least when the agency has enough
information to afford him his rights anyway. Id. The agency here did exactly
that, despite the fact that it had enough information to k now that he was an
internal candidate. Therefore, we find that the agency denied the appellant the
right to compete.
¶5 VEOA , though, only extends its protection to applicants applying under
merit promotion procedures when “the agency making the announceme nt will
accept applications from individuals outside its own workforce.” 5 U.S.C.
§ 3304 (f). Here, the agency did not accept applications from individuals outside
its own workforce. Therefore, w hile it is clear that the agency erred to the
appellant’s detriment, VEOA does not provide a remedy for th e error, and the
Board lacks authority in statute or regulation to order any relief.2
2 The appellant has filed a motion for leave to file an additional pleading in which he
contend s that he has newly acquired evidence that supports his claim. PFR File, Tab 8.
Because the Board lacks the authority to order any relief in this appeal, the appellant’s
newly acquired evidence cannot have any impact on the outcome of this case. We
therefore DENY his motion.
4
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited 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.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdi ction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PETERSON_AHMAD_AT_3330_16_0738_I_1_FINAL_ORDER_2038691.pdf | 2023-06-07 | null | AT-3330 | NP |
3,041 | https://www.mspb.gov/decisions/nonprecedential/HAYNES_NICHELLE_AT_844E_21_0553_I_1_FINAL_ORDER_2038884.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NICHELLE HAYNES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -21-0553 -I-1
DATE: June 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nichelle Haynes , Redan, Georgia, pro se.
Linnette L. Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 The appellant has fil ed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure .
2
(OPM) denying her application for disability retirement under the Federal
Employees’ Retirement System (FERS ). Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
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 out come of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant failed to prove her medical conditions of
retinitis pigmentosa, disc degenerative disease, bursitis hip pain/chronic left knee
pain, and her work injury were disabling , supplement the administrative judge’s
analysis by providing a basis for her conclusion that none of the appellant’s
medical conditions were incompatible with either useful and efficient service or
retention in her position , and VACATE the administrative ju dge’s finding that the
appellant did not prove that accommodating her medical condition s was
unreasonable , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant worked for the Department of Veterans Affairs (VA) from
December 13, 2015 , until she res igned effective July 21, 2020 . Initial Appeal
File (IAF), Tab 5 at 113, 126 -27. At the time of her resignation, she was an
Advanced Medical Support Assistant with the Atlanta VA Health Care System .
Id. at 113 . Her duties included, “scheduling patient appointments, tracking,
3
reviewing, and responding to electronic orders, consults, and other elements in
the electronic medical record and medical systems.” Id. at 100. On September 5,
2020 , she applied for disabi lity retirement under FERS based on the following
conditions: post -traumatic stress disorder (PTSD) /military sexual trauma (MST) ,
retinitis pigmentosa , disc degenerative disease , sinusitis , and bursitis hip
pain/chronic left knee pain , and an injury from being “ hit by a nother veteran at
work .” IAF, Tab 4 at 22, Tab 5 at 130-33.
¶3 According to the appellant’s medical records, since at least May 2014, she
has suffered from PTSD/MST. IAF, Tab 4 at 36. Since at least November 2014,
she has had chronic maxil lary sinusitis and bursitis. Id. at 34. Since at least
November 2018, she has had retinitis pigmentosa. Id. at 33. Since at least June
2020, she has had back pain and was diagnosed with disc degenerative disease in
November 2020. IAF, Tab 4 at 57, Tab 5 at 11. According to the appellant, her
physical conditions prevented her from sitting or standing for long periods of
time and negatively affected her mobility and vision . IAF, Tab 4 at 22 . She
reported that her emotional conditions caused “traum atic flashbacks.” Id.
¶4 OPM issued a reconsideration decision, denying the appellant’s application
for disabil ity retirement. Id. at 4-7. The appellant filed an appeal of OPM’s
reconsideration decision and requested a hearing. IAF, Tab 1. After the
appellant failed to submit prehearing submissions and attend the prehearing
conference , and failed to respond to an order to show cause, the administrative
judge cancelled the hearing and issued a close -of-record order. IAF, Tabs 8, 10.
Following the appell ant’s response, the administrative judge issued an initial
decision that affi rmed OPM’s decision. IAF, Tab 12, Initial Decision (ID) at 1,
10. She reasoned that the appellant did not show her PTSD, depression, and
sinusitis caused a service deficiency in performance, conduct, or attendance. ID
at 8-9. Although she concluded that the appellant failed to show that these
medical conditions are incompatible with useful and efficient service or retention
in her position , she did not specifically address whet her her medical conditions
4
are inconsistent with working in general, in a particular line of work, or in a
particular type of work setting . ID at 9. Lastly, she found that the appellant did
not show the agency could not reasonably accommodate her medical conditions .
ID at 9 -10. She did not make a finding as to the whether the appellant’s retinitis
pigmentosa, disc degenerative disease, bursitis hip pain/chronic left knee pain ,
and workplace injury were disabling. ID at 9 n.3 .
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 In an appeal from an OPM decision on a voluntary disability retirement
application, the appellant bears the burde n of proof by preponderant evidence.
Thorne v. Office of Personnel Management , 105 M.S.P.R. 171 , ¶ 5 (2007);
5 C.F.R. § 1201.56 (b)(2)(ii). To be eligible for a disability retirement annuity
under FERS, an employee must show the following: (1) she completed at least
18 months of creditable civilian service; (2) whi le employed in a position subject
to FERS, she became disabled because of a medical condition, resulting in a
deficiency in performance, conduct, or attendance, or, if there is no such
deficiency, the disabling medical condition is incompatible with either useful and
efficient service or retention in the position; (3) the condition is expected to
continue for at least 1 year from the date that the application for disability
retirement benefits was filed; (4) accommodation of the disabling medical
condition in the position held must be unreasonable; and (5) she did not decline a
reasonable offer of reassignment to a vacant position. 5 U.S.C. § 8451 (a);
Thorne , 105 M.S.P.R. 171 , ¶ 5; 5 C.F.R. § 844.103 (a).
¶7 The administrative judge found, and the parties do not dispute on review,
that the appellant met the 18 -month service requirement under FERS at the time
she filed her application and she did not decline a reasonable offer of
reassignment to a vacant position. ID at 6; IAF, Tab 5 at 126 -29, 134 -35. The
5
administrative judge assumed without finding that the appellant’s conditions were
expected to continue for 1 year from the date she filed her disability retirement
application. ID at 6. The administrative judge affirmed OPM’s denial of the
appellant’s di sability retirement appeal on the basis that the appellant failed to
prove that she had a disabling medical condition or that accommodating that
condition was unreasonable. ID at 9 -10; see Thorne , 105 M.S.P.R. 171 , ¶ 5.
¶8 There are two ways to meet the statutory requirement that the employee “be
unable, because of disease or injury, to render useful and efficient service in the
employe e’s position.” Henderson v. Office of Personnel Management ,
117 M.S.P.R. 313 , ¶ 16 (2012); see also Jackson v. Office of P ersonnel
Management , 118 M.S.P.R. 6 , ¶¶ 6 -7 (2012) ( applying Henderson , which
concerned an application for disability retirement under the Civil Service
Retirement System (CSRS) , to FERS cases). First, an appellant can establish that
the medical condition caused a deficiency in performance, attendance, or conduct,
as evidenc ed by the effect of her medical condition on her ability to perform
specific work requirements, or that her medical condition prevented her from
being regular in attendance, or caused her to act inappropriately. Rucker v. Office
of Personnel Management , 117 M.S.P.R. 669 , ¶ 10 (2012); Henderson ,
117 M.S.P.R. 313 , ¶ 17. Alternatively, the employee can show that her medical
condition is inconsistent with working in general, in a particular line of work, or
in a particular type of work setting. Rucker , 117 M.S.P.R. 669 , ¶ 10; Henderson ,
117 M.S.P.R. 313 , ¶ 17.
¶9 The administrative judge found that the appellant failed to demonstrate that
her sinusitis, PTSD /MST ,3 and depression4 were incompatible with working or
3 The medical evidence in the record indicates that the appellant’s MST is part and
parcel w ith her PTSD. IAF, Tab 4 at 36 , 98. Therefore, we refer to them together as
one medical condition.
4 The administrative judge included depression in her findings, despite the fact that the
appellant did not include depression as a medical condition on her disability retirement
application . IAF, Tab 4 at 22. Indeed, there are a number of medical conditions
6
caused deficiencies in her performance, conduct , and attendance. ID at 8 -9.
However, while the administrative judge concluded that the appellant “failed to
explain how she is medically incapable of rendering useful and efficient service, ”
she did not explain her reasoning . ID at 9. Finally, she did not address whether
the appellant’s retinitis pigmentosa, disc degenerative disease, bursitis hip
pain/chronic left knee pain , and work injury were disabling.5 ID at 9 n.3 .
Accordingly, we supplement her analysis and find that the appellant failed to
prove that any of her medical conditions was disabling .
We agree with the administrative judge that the appellant failed to establish that
her medical conditions caused performance, attendance, or conduct deficiencies,
as modified to supplement her analysis .
¶10 In her initial decision, the administrative judge found “no evidence” to
show that the appellant’s sinusitis caused a deficiency in her performance,
conduct , and attendance. ID at 8 . The administrative judge considered the
appellant’s statement that her sinusitis caused her to miss work ; however, she
found the statement was unsupported and nonspecific . Id.; IAF, Tab 11 at 4. To
the extent that the administrative judge gave no weight to the appellant’s
contained in the record that were not included in the appellant’s disabilit y retirement
application, e.g. , astigmatism, dermatophytosis, shoulder joint, thigh and knee pain,
presybyopia, uterine leimyoma, dental caries , etc. IAF, Tab 4 at 32 -38. The Board will
only consider medical conditions listed in the appellant’s disabilit y retirement
application. Ballenger v. Office of Personnel Management , 101 M.S.P.R. 138 , ¶¶ 12 -13
(2006) (clarifying that the Board may not consider a medical condition that was neither
the subject of the disability retirement application in question nor the basis of OPM’s
disability retirement determination ). Because there is no allegation or evidence in the
record that these c onditions ar e related to the conditions o n which the appellant’s
disability retirement application is based (i.e. , PTSD /MST , retinitis pigmentosa, disc
degenerative disease, sinusitis, bursitis hip pain/chronic left knee pain , and a work
injury from being hit by a patient ), we have not consider ed these conditions here. IAF,
Tab 4 at 22.
5 On review, the appellant alleges that she suffered a “contusion in [her] right arm”
related to a work injury when she was hit by a patient . PFR File, Tab 1 at 4. Other
than the appellant’s bare allegations that she was hit by a patient/veteran while on the
job, e.g., IAF, Tab 1 at 5, Tab 4 at 22 , Tab 11 at 6 ; PFR File Tab 1, at 4 , there is no
medical evidence in the record related to her right arm contusion or work injury.
7
statement that her sinusitis caused her to miss work because it was unsupported,
we disagree. The appellant’s statement regarding the effect of her sinusitis on her
attendance is entitled to some evidentiary weight . See Henderson , 117 M.S.P.R.
313, ¶ 19 (explaining that the Board will consider all pertinent evidence in
determining an appellant’s entitlement to disability retirement , including an
appellant’s subjective evi dence of pain and disability and how the condition has
affected her ability to do her job and her daily life ). Nevertheless, we agree that
the appellant’s claim is not supported by the weight of the evidence .
¶11 The following factors , as relevant here, affect the weight to be accorded to
the appellant’s statement : whether it was signed or in affidavit form; the
consistency of her account with other information in the case and its internal
consistency ; and whether the statement is corroborated or contradict ed by the
evidence in the record . See Borninkhof v. Department of Justice , 5 M.S.P.R. 77,
87 (1981) (listing these and other factors as affecting the weight the Board will
give to hearsay evidence) . The appellant’s statement is sworn. IAF, Tab 11 at 3.
Nonetheless, we agree with the administrative judge that it is lacking in details.
The appellant s tated that she had to miss work due to her s neezing, coughing,
headaches, and earaches from sinusitis , which were exacerbated by working
around “toxic fumes ” in the emergency room and clinic , but she did not indicate
how much work she had to miss .6 Id. at 4. In another statement in the record, she
conceded that she did not have a deficiency in attendance. IAF, Tab 5 at 118.
¶12 Further, when asked in connection with the appellant ’s disability retirement
application if her attendance was unacceptable, her supervisor did not check
either of the boxes for “yes” or “no, ” but typed in “employee resigned.” IAF,
Tab 4 at 25 . She further stated that the appellant resigned after receiving “work
instructions for the day.” Id. This answer suggests that the appel lant had been
reporting to work prior to her resignation. Thus, we find that the appellant’s
6 The appellant did not claim deficiencies in attendance based on her other medical
conditions or her workplace injury.
8
statement is inconsistent with the evidence in the record . Accordingly, we agree
with the administrative judge that the appellant failed to show that her medical
conditions and/or injury prevented her from being regular in attendance.
¶13 On review, t he appellant also disputes the administrative judge’s finding
that she failed to show her medical conditions caused performance deficiencies.
PFR File, Tab 1 at 4. She argues generally that her physical and mental
limitations negatively affected the performance of her duties, especially when
working in the emergency room, resulting in her resigning twice and receiving a
“not . . . good write -up.” Id. The appellant do es not submit a copy of the
write -up or provide any further information regarding these allegations. As the
administrative judge noted, in November 2020 , shortly after her resignation and
submission of her disability retirement application , the appellant’s psychologist
stated that she self -reported that her psychiatric symptoms have “significantly
limited her ability for optimal performance in the workplace by hindering her in
managing stressors and communicating effectively .” ID at 9 ; IAF, Tab 4 at 27.
However, the administrative judge found that the appellant’s self -reported
limitations were “inconsistent ” with her psychologist’s medical notes from April
to June 2020, the months leading up to her July 2020 resignation, which did not
indicate t hat the appellant’s PTSD impeded her ability to perform her duties . ID
at 8-9; IAF, Tab 5 at 9-10, 16 -18, 26 -27, 37 -38. She therefore concluded that the
appellant’s evidence failed to support her conclusion that she is too disabled to
perform her duties . ID at 9 .
¶14 We see no reason to disturb that finding, and supplement her analysis to add
that the record contains evidence that the appellant did not suffer performance
deficiencies. For instance, the appellant’s 2020 performance appraisal , covering
the period from October 2019 to September 2020, reflects that she was fully
9
successful.7 IAF, Tab 5 at 103 -07. Further, her supervisor indicated in her
written statement in connection with the appellant’s disability retirement
application that the appellant’s performance was not less than fully successful.
IAF, Tab 4 at 24, Tab 5 at 103-07. Because the appellant does not otherwise
explain or provide evidence of how her physical and mental limitations negatively
affected the performance of her duties , we agree with the administrative judge ’s
finding that she failed to show her medical conditions caused performance
deficiencies.
¶15 The record is also devoid of any indication that the appellant’s medical
conditions caused h er to act inappropriately. To the contrary , the appellant’s
supervisor indicated in h er written statement that the appellant’s conduct was
satisfactory. IAF, Tab 4 at 25. The appellant also did not claim below or on
review that her conduct was unsatisfact ory. Thus, we agree with the
administrative judge that the appellant failed to show that any of her medical
condition s or injury caused a deficiency in her attendance , performance, or
conduct. See 5 C.F.R. § 844.103 (a)(2).
¶16 Lastly, t he appellant appears to argue on review that the administrative
judge improperly considered the fact that she was seeking employment and
considering moving in her determination that the appellant’s conditions are not
disabling. ID at 9; PFR File, Tab 1 at 4. An appellant is not required to show
that her disability rendered her incapable of working all positions. Angel v.
Office of Personnel Management , 122 M.S.P.R. 424 , ¶ 14 (2015). However,
subsequent work history is relevant to whether an individual’s condition is
confined to a single work environment. Confer v. Office of Personnel
Management , 111 M.S.P.R. 419 , ¶ 16 (2009) . One is not entitled to a dis ability
retirement annuity when one’s medical condition is based on a single work
environment, e.g., because it grew out of a personal conflict with a supervisor, or
7 The appraisal is not completed or dated, presuma bly because the appellant resigned
during the rating period.
10
resulted from a perceived hostile work environment due to workload or
understaffing. Id. Thus, we see no error in the a dministrative judge taking into
consideration the appellant’s claim that she was seeking other employment,
especially in light of her allegations that she resigned, not because of her medical
conditions, but because “an employee ha[d] COVID -19 and . . . another employee
defamed [her] character, created a hostile working environment, and made [her]
fear for [her] life.” IAF, Tab 5 at 119.
We modify the initial decision to provide an analysis for the administrative
judge’s conclusion that the appellant fai led to show that any of her medical
conditions or her workplace injury were inconsistent with working in general, in
a particular line of work, or in a particular type of setting .
¶17 Because the administrative judge did not address the second method by
which an appellant can establish that she is unable to render useful and efficient
service, w e modify the initia l decision to add that analysis. We conclude that the
appellant failed to show that any of her medical conditions or her workplace
injury was inconsi stent with working in general, in a particular line of work, or in
a particular type of setting. See Jackson , 118 M.S.P.R. 6 , ¶ 8. Indeed, the
medical assessments in the reco rd suggest that the appellant’s medical conditions
did not affect her work -related functions or her ability to work in general.
¶18 For instance, in October 2020 , shortly after her July 2020 resignation, her
ophthalmologist stated, “[the appellant] has peripheral retinal pigment changes
that were not impacting her work -related visual function.” IAF, Tab 4 at 129 -30.
The appellant complained that her retinitis pig mentosa causes “blind spots” and
“floaters” that affect her driving to and from work, especially at night, as well as
her “daytime activities.” IAF, Tab 4 at 128, Tab 5 at 118. However, the Board
has found that inability to commute to work due to medical restrictions is
irrelevant to a disability retirement determination . Livengood v. Office of
Personnel Management , 41 M.S.P.R. 568 , 57 4 (1989) (finding an appellant’s
difficulties in commuting to work because of her pain was not a relevant
consideration in a disability retirement determination under CSRS ); Jolliffe v.
11
Office of Personnel Management , 23 M.S.P.R. 188 , 191 (1984) (same), aff’d ,
785 F.2d 320 (Fed. Cir. 1985) (Table).8
¶19 Similarly, with respect to her bursitis , disc degenerative disease, and left
hip pain, th e appellant’s doctor stated in October 2020, “[she did] not have
enough information yet to make a recommendation for disability on the basis of
musculoskeletal pain.” IAF, Tab 4 at 105. Also, the appellant’s later medical
records regarding her left hip f urther indicate “unremarkable” results with “no
abnormalities” as well as “[m]ultilevel mild to moderate degenerative disc disease
of the lumbar spine.” IAF, Tab 4 at 83, Tab 5 at 57 -58.
¶20 Lastly, the appellant generally states that her PTSD has been exacerbated by
sexual harassment on the job and being physically assaulted at work, but she does
not further elaborate or provide evidence that her condition or injury impairs her
from working . IAF, Tab 11 at 4, Tab 5 at 118. The appellant also does not claim,
nor is there any evidence in the record to support a conclusion , that any of her
remaining conditions are incompatible with working in general or specifically .
Accordingly, after considering the evidence in the record, both objective and
subjective , we conclude that th e appellant failed to show that she suffered from a
medical condition or injury that was incompatible with either useful and effic ient
service or retention in her position. See Henderson v. Office of Personnel
Management , 109 M.S.P.R. 529 , ¶ 12 (2008) ; 5 C.F.R. § 844.103 (a)(2).
¶21 Because we find that the appellant failed to establish that her medical
conditions and injury were disabling, we need not reach the issue of whether the
8 Although the cited cases arise under CSRS, the applicable statutory and regulatory
standards governing whether an employee has a disabling condition under CSRS and
FERS are essentially identica l. Henderson , 117 M.S.P.R. 313 , ¶ 9 n.7 (citing 5 U.S.C.
§§ 833 7(a), 8451(a)(1)(B); 5 C.F.R. §§ 831.1203 (a)(2), 844.103(a)(2) ). Therefore, we
apply this CSRS case law here.
12
remaining elements of her disability retirement claim have been met .9 Thorne ,
105 M.S.P.R. 171 , ¶ 5; 5 C.F.R. § 844.103 (a).
NOTICE OF APPEAL R IGHTS10
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 decisi on. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights descri bed below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow al l filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applie s to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
9 We note that the administrative judge found that the appellant failed to prove that
accommodation of her medical conditions was unreasonable solely because the
appellant did not ask for an accommodation. ID at 9 -10. An appellant is not required
to show that she requested accommodation in order to establish that accommodation of
her disabling condition was unreasonable. Gooden v. Office of Personnel Management ,
471 F.3d 1275 , 1279 (Fed. Cir. 2006). Thus, we vacate that finding.
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.
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 Feder al Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may vis it our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
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 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 representative receives this decision before you do, 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:
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 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.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).
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
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.
16
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAYNES_NICHELLE_AT_844E_21_0553_I_1_FINAL_ORDER_2038884.pdf | 2023-06-07 | null | AT-844E | NP |
3,042 | https://www.mspb.gov/decisions/nonprecedential/POWELL_DANIEL_DE_0752_17_0327_I_1_FINAL_ORDER_2038890.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIEL POWELL,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DE-0752 -17-0327 -I-1
DATE: June 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel Powell , Roswell, New Mexico, pro se.
Armando Armendariz , Esquire, and Parisa Naraghi -Arani , Esquire , Fort
Worth, 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
affirmed his removal as an Air Traffic Control Specialist (ATCS) for medical
inability to perform his duties after the agency revoked his medical certification .
Generally, we grant petitions such as this one only in the fol lowing
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administra tive
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 l egal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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,
except as expressly MODIFIED to apply the appropriate, heightened standard to
the agency’s charge and to set forth the proper standard for evaluating an
affirmative defense of disparate treatment disability discrimination .2
¶2 Although not raised by either party on review, we address one aspect of the
administrative judge’s analysis of the agency’s charge. The administrative judge
cited Sanders v. Department of Homeland Security , 122 M.S.P.R. 144 , ¶ 11, aff’d ,
625 F. App’x 549 (Fed. Cir. 2015), and 5 C.F.R. § 339.2063 for the proposition
that a disabling con dition whose recurrence cannot be ruled out must pose “a
2 The issue of sealing the appellant’s medical records remained outstanding at the
conclusion of the October 27, 2017 hearing and was not addressed in the initial
decision. Initial Appeal File, Tab 40 at 5, Tab 42 at 4, Tab 50, Initial Decision.
However, in light of the protections afforded by the Freedom of Information Act and
the Privacy Act, the records have not been sealed. See Doe v. Pension Benefit Guaranty
Corporation , 117 M.S.P.R. 579 , ¶ 23 n.5 (2012); Nefcy v. Environmental Protection
Agency , 94 M.S.P.R. 435 , ¶¶ 5, 7 (2003).
3 As an initial matter, we note that t he administrative judge properly applied the
standard in 5 C.F.R. § 339.206 to the charge of medical inability to perform . See
Haas v. Department of Homeland Security , 2022 MSPB 36 , ¶¶ 11-14 (finding that
5 C.F.R. § 339.206 applies when an appellant is subject to medical standards and his
removal is solely on the basis of medical history).
3
reasonable probability of substantial harm.” Initial Appeal File (IAF), Tab 50,
Initial Decision ( ID) at 5. However, the Office of Personnel Management
amended section 339.206 prior to the appellan t’s May 27, 2017 removal to
require that the disabling condition’s recurrence pose “a significant risk of
substantial harm to the health and safety of the . . . employee or others that cannot
be eliminated or reduced by reasonable accommodation or any othe r agency
efforts to mitigate risk.” Medical Disqualification Determinations, 82 Fed. Reg.
5340 , 5346, 5352 (Jan. 18, 2017) (codified at 5 C.F.R. subpart 339). The
administrative judge did not apply this heightened standard, but we find that,
even under t hat standard, the appellant’s disabling condition would pose a
significant risk of substantial harm to the health and safety of others, especially in
the high -risk ATCS position that he encumbered. ID at 5 -6.
¶3 On petition f or review, the appellant contends that (1) the administrative
judge erred by finding that the second career program described in 5 U.S.C.
§ 3381 (a) was not a reasonable accommodation when Congress d id not
appropriate funds for it and by relying on a Lead Human Resources Specialist’s
declaration to that effect , (2) the agency unreasonably delayed the reasonable
accommodation job search and failed to find two vacant positions to which he
could have been reassigned, and (3) the agenc y failed to follow its own
reasonable accommodation policies, which evidenced discriminatory intent.
Petition for Review (PFR) File, Tab 1 a t 4-5. For the reasons set forth below, we
find no basis to disturb the initial decision.
¶4 Although the appellan t argues that 26 U.S.C. § 9502 , which established the
Airport and Airway Trust Fund, indefinitely appropriates money for the second
career program, the appropriations statutes in effect at the tim e of the appellant’s
removal specifically prohibit ed the agency from using such appropriations on new
second career program applicants. PFR File, Tab 1 at 4-5; IAF, Tab 38 at 6,
Tab 39 at 4-5, 582 -83. We also find no basis to disturb the administrative j udge’s
evaluation of the Lead Human Resource Specialist’s declaration about the second
4
career program. ID at 13 & n.11; see Borninkhof v. Department of Justice ,
5 M.S.P.R. 77, 87 (1981).
¶5 We further find that the agency did n ot unreasonably delay the reasonable
accommodation job search or fail to find two vacant positions to which the
appellant could have been reassigned . PFR File, Tab 1 at 4. The appellant
requested reassignment as a reasonable accommodation on November 28, 2016 ,
the agency initiated the reassignment search on December 21, 2016, and the
agency conducted the agency -wide search through February 27, 2017 , without
success . IAF, Tab 13 at 62-65, Tab 38 at 4-5. The appellant has not described
how the agency’s minimal delay in initiating the reassignment search, or the
overall 3-month reasonable accommodation process, prejudiced him, nor has he
identified any vacant, funded position t o which he could have been reassigned
prior to his removal. See Massey v. Department of the Army , 120 M.S.P.R. 226,
¶ 12 (2013) (noting that, as part of a failure to accommodate affirmative defense,
the appellant has the burden to establish the existence of a position to which he
could have been reassigned) ; McConnell v. Department of the Army , 61 M.S.P.R.
163, 169 (1994) ( noting that an agency is allowed a reasonable time to conduct its
assessment of an accommodation request and arrive at its conclusions) . The
appellant identified two vacant positions at higher pay bands for reassignment ,
IAF, Tab 37 at 17-20, 23 -26, 65, but we agree with the administrative judge that
an agency is not required to pr omote an individual as part of a reasonable
accommodation, ID at 13 (citing Gonzalez -Acosta v. Department of Veterans
Affairs , 113 M.S.P.R. 277, ¶ 14 (2010)). We further find that the appella nt, aside
from his general assertion to the contrary, failed to show that the agency did not
comply with its reasonable accommodation policy. PFR File, Tab 1 at 4; ID
at 13; IAF, Tab 36 at 19 . As such, we agree with the administrative judge that the
appellan t failed to prove his failure to accommodate affirmative defense . ID
at 10-14.
5
¶6 Finally, the appellant claimed below that his removal constituted disparate
treatment disability discrimination. Since the initial decision was issued, the
Boar d has clarified the legal standard for proving disparate treatment disability
discrimination. Pridgen v. Office of Management and Budget , 2022 MSPB 31 ,
¶¶ 22, 40, 42. The administrative judge found that the appellant failed to show
that his disability was a motivating factor in the agency’s decision to remove him ,
and the appellant does not challenge that finding on review. ID at 9. We
therefore find that we need not reach the question as to whether the appellant
prove d that discrimination was a but -for cause of the agency’s decision to remove
him.
¶7 Therefore, we deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the 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 c arefully follow all filing 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 d ecision in this matter, the Board may have updated
the notice 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
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 fo llowing
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 cou rt’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
7
were affected by an action that is appealab le to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabli ng condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts c an be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in 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.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 provide d for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petit ions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to Novembe r 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the 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 | POWELL_DANIEL_DE_0752_17_0327_I_1_FINAL_ORDER_2038890.pdf | 2023-06-07 | null | DE-0752 | NP |
3,043 | https://www.mspb.gov/decisions/nonprecedential/RODEN_CLARENCE_J_SF_0752_18_0661_I_1_FINAL_ORDER_2038980.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CLARENCE J. RODEN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-0752 -18-0661 -I-1
DATE: June 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clarence J. Roden , Gainesville, Georgia, pro se.
Nicholas R. Hankey , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition fo r review of the initial decision, which
reversed the appellant’s indefinite suspension . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial dec ision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent w ith required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the recor d closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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 reverse the indefinite suspension for failure to prove the charge
rather than for a due proce ss violation , we AFFIRM the initial decision.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant was employed as a physical security specialist with the
Federal Protective Service. Initial Appeal File (IAF), Tab 9 at 19. He was
arrested in March 2013 for brandishing a weapon in a motor vehicle, a felony
under California law. Upon lear ning of the arrest, the agency initially placed the
appellant on administrative leave, then returned him to work performing
administrative duties. Id. at 69 -72.
¶3 The State of California filed a felony criminal complaint against the
appellant on October 7, 2013. Id. at 63. The appellant was arraigned the same
day and pled not guilty. Id. at 58. The court scheduled a preliminary hearing for
November 12, 2013. Id.
¶4 By letter dated October 9, 2013, the agency proposed to indefinitely
suspend the appellant b ased on the pending criminal charges. IAF, Tab 9
at 52-53. In proposing the indefinite suspension, the agency cited the criminal
complaint filed against the appellant 2 days earlier. The agency also indicated
that the court had found probable cause to b elieve that the appellant had
3
committed the charged offense during the proceedings on October 7, 2013. Id.
The appellant replied to the proposed indefinite suspension both orally and in
writing. Id. at 38 -51. By letter dated October 31, 2013, the agenc y issued a
decision suspending the appellant indefinitely pending the outcome of the
criminal case against him and any subsequent agency investigation and adverse
action. Id. at 20 -30.
¶5 The appellant filed an equal employment opportunity complaint challeng ing
his suspension. IAF, Tab 7 at 15 -21. In April 2018, the Equal Employment
Opportunity Commission returned the appellant’s mixed -case complaint to the
agency for issuance of a Final Agency Decision. IAF, Tab 6 at 54 -56. The
appellant filed this appea l on July 16, 2018. IAF, Tab 3.
¶6 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision reversing the appellant’s indefinite suspension. IAF,
Tab 41, Initial Decision (ID). He found that the agency had violat ed the
appellant’s due process rights by considering aggravating factors relating to its
penalty determination without giving the appellant notice of and an opportunity to
respond to those factors. ID at 4 -6. The administrative judge found that the
appel lant failed to prove his affirmative defenses of discrimination based on race
or uniformed service. ID at 6 -13.
¶7 The agency has petitioned for review of the initial decision. Petition for
Review (PFR) File, Tab 3. On review, the agency argues that the ad ministrative
judge erred in finding a due process violation. The appellant did not file a
response to the petition for review.2
2 The deadline to respond to the petition for review or file a cross petition for review
was June 22, 2019. PFR File, Tab 4. The appellant filed a request for an extension of
time on August 7, 2019, more than a month after the filing deadline. PFR File, Tab 6.
The Office of the Clerk of the Board rejected the extension request as untimely. PFR
File, Tab 7. The appellant subsequently requested leave to file an additional pleading.
PFR File, Tab 8 . The appellant’s request fails to describe the nature of and need for the
additional pleading, and therefore it is DENIED. See 5 C.F.R. § 1201.114 (a)(5).
4
¶8 Among the limited circumstances in which the Board and its reviewing
court have approved the use of indefinite suspensions is w hen the agency has
reasonable cause to believe an employee has committed a crime for which a
sentence of imprisonment could be imposed. Gonzalez v. Department of
Homeland Security , 114 M.S.P.R. 318 , ¶ 13 (2010). The Board has defined
“reasonable cause” as “probable cause,” or “[a]n apparent state of facts found to
exist upon reasonable inquiry (that is such inquiry as the given ca se renders
convenient and proper) which would induce in a reasonably intelligent and
prudent man to believe, in a criminal case, that the accused person had committed
the crime charged. . . . ” Martin v. Department of the Treasury , 12 M.S.P.R. 12,
18 (1982) (quoting Black’s Law Dictionary , Revised 4th Ed., 1968, at 1365) , aff’d
in part , rev’d in part sub nom . Brown v. Department of Justice , 715 F.2d 662
(D.C. Cir. 1983), and aff’d sub nom . Otherson v. Department of Justice , 728 F.2d
1513 (D.C. Cir. 1984); apparent inconsistency between Martin and another Board
decision recognized in Dunnington v. Department of Justice , 956 F.2d 1151 , 1155
(Fed. Cir. 1992); Martin modified by Barresi v. U.S. Postal Service , 65 M.S.P.R.
656, 663 n.5 (1994). Applying this standard, the Board in Martin determined that
an indictment is sufficient to establish reasonable cause, whereas an investigation
alone is insufficient to establish reasonable cause. Martin , 12 M.S.P.R. at 19.
The Board further determined that an arrest accompanied by certain other
circumstances could suffice. It cited as one example of such circumstances the
employee being held for further legal action by a magistrate. Id.
¶9 In proposing and effecting the appellant’s suspension, the agency indicated
that a judicial officer h ad found probable cause to detain the appellant on the
felony charge initiated against him on October 7, 2013. IAF, Tab 9 at 21, 53.
However, the record does not support the agency’s characterization of the
proceedings on that date. According to the cri minal docket records submitted by
the agency, the appellant appeared in court on October 7, 2013, pled not guilty to
5
the felony charge against him, and was ordered to appear for a preliminary
hearing the following month. Id. at 58.
¶10 Under California crimin al law, the state can initiate a felony prosecution
through an indictment or an information. Cal. Penal Code § 737. When seeking a
criminal information, the state first files a criminal complaint, Cal. Penal Code
§ 738, as it did here, IAF, Tab 9 at 63. There is then a preliminary examination
of the case against the defendant to determine whether he should be held to
answer the charges. Cal. Penal Code § 738. On preliminary examination, the
magistrate must determine whether there is sufficient cause to believe the
defendant is guilty. Cal. Penal Code § 872(a). If sufficient cause is found, the
district attorney may then formally charge the defendant. Cal. Penal Code § 739.
Thus, because the appellant had not yet had his preliminary hearing, there wa s no
independent finding of probable cause at the time the agency proposed the
indefinite suspension.
¶11 The Board has held under similar circumstances that the filing of a criminal
complaint is not itself sufficient to establish reasonable cause to believe an
employee committed a crime. In Phillips v. Department of Veterans Affairs ,
58 M.S.P.R. 12 , 14-15 (1993), aff’d , 17 F.3d 1443 (Fed. Cir. 1994) (Table), the
Board held that an agency could not base an indefinite suspension on the mere
filing of a felony criminal complaint where the appellant had not yet been granted
a preliminary hearing, which was a prerequisite to the filing of a criminal
information. Although Phillips arose under Missouri law, the procedure for
felony prosecution by information appears to be functionally identical to the
California procedures at issue here. We therefore hold that the filing of a felony
criminal complaint alone was not sufficient to establish reasonable cause to
believe the appellant had committed a crime.
¶12 In Hernandez v. Department of the Navy , 120 M.S.P.R. 14 , ¶¶ 10-16 (2013) ,
the Board held that a misdemeanor criminal compl aint under California law is
sufficient to establish reasonable cause. The Board distinguished Phillips on the
6
grounds that a misdemeanor criminal prosecution does not require a preliminary
hearing. Id., ¶ 13 (equating a misdemeanor criminal complaint under California
law to an indictment). Thus, the present case is distinguishable from Hernandez
because the prosecution in this case required a preliminary determination of
probable cause before it could proceed further. Cal. Penal Code §§ 738, 739.
¶13 Although the Board in Phillips held that the criminal complaint was
insufficient to establish reasonable cause, it nevertheless sustained the appellant’s
indefinite suspension because the agency in that case had sufficient evidence
beyond the criminal complai nt to support its action. Phillips , 58 M.S.P.R. at 15.
Here, we find that the criminal complaint was the central basis for the agency’s
action. IAF, Tab 9 at 20 (“The reason for the Proposed Indefinite Suspension is
that you are the defendant in . . . a criminal case.”) . We find that the agency did
not otherwise cite sufficient evidence to establish reasonable cause to believe the
appellant committed the crime alleged in the complaint.3 Thus, we find that the
agency failed to prove its charge. Because this finding is sufficient to warrant
reversal of the indefinite suspension, we need not address and VACATE the
administrative judge’s findings regarding due process.
¶14 The appellant did not file a cross petition for review to challenge the
administrative j udge’s findings that he failed to prove his affirmative defenses of
discrimination based on race or uniformed service. We have nevertheless
reviewed those findings and we see no reason to disturb them.4
3 Our finding as to the agenc y’s charge does not mean that reasonable cause did not
exist to believe the appellant committed the crime. Rather, we find only that the agency
did not cite a sufficient basis to find reasonable cause. See Fargnoli v. Department of
Commerce , 123 M.S.P.R. 33 0, ¶ 7 (2016) ( The Board is required to review the agency’s
decision on an adverse action solely on the grounds invoked by the agency; the Board
may not substitute what it considers to be a more adequate or proper basis .).
4 Because we affirm the administrative judge’s finding that the appellant failed to meet
his initial burden to prove that his race was a motivating factor in the agency’s action ,
we need not resolve the issue of whether the appellant prove d that discrimination was a
7
ORDER
¶15 We ORDER the agency to cancel the appellant's indefinite suspension and
reinstate him and to restore the appellant effective November 1, 2013. See Kerr
v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
¶16 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s re gulations, 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 da te of this decision.
¶17 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Bo ard’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶18 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appella nt 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 beli eves 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).
“but-for” cause of the agency’s decision. Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶¶ 20-22, 40 -42.
8
¶19 For agencies wh ose 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 resu lting 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 ca n 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 re quirements 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 d ecision on your appeal.
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following
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 indicat ed in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
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 choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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 particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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 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
11
EEOC’s Office of Federal Operations within 30 calendar days after you rece ive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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 revi ew either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circu it, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor w arrants that
any attorney will accept representation in a given case.
Dece mber 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for t he Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave 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 Seve rance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if a pplicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of 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. | RODEN_CLARENCE_J_SF_0752_18_0661_I_1_FINAL_ORDER_2038980.pdf | 2023-06-07 | null | SF-0752 | NP |
3,044 | https://www.mspb.gov/decisions/nonprecedential/PEREZ_ORLANDO_DA_3443_15_0125_B_1_FINAL_ORDER_2038991.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ORLANDO PEREZ,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-3443 -15-0125 -B-1
DATE: June 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Orlando Perez , El Paso, Texas, pro se.
K. Tyson Shaw , 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 decis ion, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301 -4335) (USERRA). 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
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 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. § 1201. 113(b).
¶2 The appellant, a veteran, is employed by the agency as a Correctional
Officer in La Tuna, Texas . Perez v. Department of Justice , MSPB Docket
No. DA-3443 -15-0125 -I-1, Initial Appeal File ( IAF), Tab 7 at 42. During his
employment , the appella nt applied for several vacancies and career development
opportunities , but he was not selected. Id. at 43-56. On December 12, 2014, the
appellant filed an appeal with the Board arguing that the nonselections were
based on discrimination and retaliation for protected equal employment
opportunity (EEO) activity. IAF, Tab 1. He also raised prohibited personnel
practices and unfair labor practice claims. Id. The administrative ju dge issued an
order on jurisdiction informing the appellant of his burden under VEOA,
including the requirement that he must exhaust his administrative remedies with
the Department of Labor (DOL). IAF, Tab 3. The appellant provided no
evidence that he ex haus ted his administrative remedy, and the administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 13 , Initial Decision .
3
¶3 The appellant filed a petition for review of the initial decision and
submitted new evidence to the Board showing that, after the issuance of the initial
decision, he exhausted his administrative remedy with DOL. Petition for Review
(PFR ) File, Tab 1 at 7. In its Remand Order, the Board found that the appellant
had exhausted his admini strative remedy as to a single vacancy announcement ,
and remanded the appeal to allow the appellant to pursue his VEOA claim
regarding that s ingle nonselection. Perez v. Department of Justice , MSPB Docket
No. DA -3443 -15-0125 -I-1, Remand Order, ¶¶ 7 -10 (Au g. 7, 2015). The Board
also determined that the appellant could raise a claim under USERRA and
informed him of what he must prove to prevail on a USERRA claim. Id.,
¶¶ 12-13. The Board also found that it lacked jurisdiction over the appellant ’s
claims r egarding prohibited personnel practices, discrimination, retaliation, and
unfair labor practices, except as necessary to adjudicate the VEOA and USERRA
claims. Id., ¶ 14.
¶4 On remand, the administrative judge held a hearing regarding the VEOA
and USERRA claims. Perez v. Department of Justice , MSPB Docket No. DA-
3443 -15-0125 -B-1, Remand File (RF), Tab 25, Hearing Compact Disc ( HCD ).
She issued a remand initial decision finding that the appellant failed to meet his
burden under VEOA as to the single vacancy for which he exhausted his
administrative remedy and that he failed to meet his burden under USERRA as to
seven specific nonselections for vacancies or ca reer development opportunitie s.
RF, Tab 29 , Remand Initial Decision ( RID) at 2-7, 10 -18.
¶5 The appellant has petitioned for review of the remand initial decision
contesting the administrative judge ’s findings regarding the USERRA claims,
specifically challenging her findings concernin g five of the seven nonselections .2
2 The appellant does not appear to challenge the administrative judge’s findings
concerning the VEOA claim. After our review of the record, we find no reason to
disturb these findings. RID at 2 -7.
4
Remand Petition for Review (RPFR) F ile, Tab 1 at 6. The agency has filed a
response to the appellant ’s petition. RPFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 A USERRA discrimination appeal involves an allegation in which the
appellant claims that an agency has taken an action prohibited by 38 U.S.C.
§ 4311 (a); Clavin v. U.S. Postal Service , 99 M.S.P.R. 619 , ¶ 5 (2005). An
employer is considered to have engaged in an action prohibited by
section 4311(a) if the appellant ’s membership, application for membership,
service, application for service, or obligation for service in the uniformed
services is a motivating factor in the agency ’s action, unless the employer can
prove that the action would have been taken in the absence of the prot ected status.
38 U.S.C. § 4311(c)(1). Thus, the appellant must initially prove by preponderant
evidence that his military status was at least a motivating or substantial factor in
the agency act ion, upon which the agency must prove by preponderant evidence
that the action would have been taken despite his protected status. Sheehan v.
Department of the Navy , 240 F.3d 1009 , 1013 (Fed. Cir. 2001).3
¶7 Uniformed service is a motivating factor if an agency relied on, took into
account, considered, or conditio ned its decision to act or not act on an appellant ’s
service. Erickson v. U.S. Postal Service , 571 F.3d 1364 , 1368 (Fed. Cir. 2009).
Discrimin atory motivation under USERRA may be reasonably inferred from a
variety of factors, including proximity in time between the employee ’s military
activity and the adverse employment action, inconsistencies between the
proffered reason and other actions of th e employer, an employer ’s expressed
hostility towards members protected by the statute together with knowledge of the
employee ’s military activity, and disparate treatment of certain employees
compared to other employees with similar work records or offens es. Sheehan
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).
5
at 1014. Here, the administrative judge found that the appellant failed to meet his
initial burden of proving by preponderant evidence that his military status was a
motivating or substantial factor in the nonselections.4 RID at 17.
¶8 On rev iew, the appellant argues that the administrative judge erred in
finding that he failed to meet his burden under USERRA. RPFR File, Tab 1
at 5-13. Specifically, the appellant challenges the administrative judge ’s
credibility determinations of the two sel ecting officials who were responsible for
the five nonselection claims challenged on review . Id. at 6, 8. In the initial
decision, the administrative judge credited both selecting officials ’ testimony that
the appellant ’s military experience played no role in the appellant ’s nonselection
for any of the five vacancies fo r which they were responsible. RID at 12, 15, 17.
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 administra tive judge appropriately relied on Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987) , to assess witness
credibility and found these witnesses to be credible. RID at 17.
¶9 The appellant argues that the selecting officials ’ testimony regarding the
selection process should not be credited because it could not be substantiated due
to the agency ’s failure to record and maintain sufficient records on the selecting
officials ’ decision -making processes that would enable it to “reco nstruct ” or
“recreate promotion actions. ” RPFR File, Tab 1 at 4, 7 . We find the appellant ’s
argument to be unpersuasive. Ordinarily, the Board order s reconstruction of a
selection process as a remedy to a VEOA violation. Morris v. Department of the
4 The administrative judge also found that even if the appellant had met his burden, the
agency demonstrated that it would have selected the same applicants. RID at 17 -18.
6
Army , 113 M .S.P.R. 304, ¶ 17 (2 010). T he appellant has not pointed to any law,
rule, or regulation that places a burden on the agency to maintain the types of
records he describes5 as a way to substantiate agency officials ’ testimony in
USERRA nonselection claims. Moreover, the agency has provided
documentation of the appellant ’s status and other applicants ’ information for each
vacancy.6 RF, Tab 18 at 12-332. Based on the foregoing, we find that the
appellant has failed to provide a “sufficiently sound ” reason to disturb the
administrative judge ’s credibility determinations.
¶10 The appellant also argues that the administrative judge failed to resolve a
disputed fact. RPFR File, Tab 1 at 4, 8 -9. The appellant has alleged that he
asked the selec ting official responsible for three of the five nonselections why she
did not select him for any of the positions , and she responded that she does not
“select scrap. ” Id. at 8. The selecting official testified at the hearing that she
never referred to the appellant as “scrap. ” HCD (testimony of the selecting
official) . Although the administrative judge did not make a specific finding
concerning this statement, she found the selecting official ’s testimony to be
credible. RID at 15, 17. The administrative judge also found that the appellant
undermined his own credibility when he testified that his veteran status was the
only reason for his nonselection, despite later tes timony and record evidence
indicating that h e had challenged the nonselection on several other discr iminatory
grounds such as color, national origin , and disability . Id. at 17; HCD (testimony
of the appellant) ; IAF, Tab 7 at 11, 18. These credibility determinations, by
necessary implication, were based, in part, on the demeanor of the witnesses at
5 The appellant arg ues that the agency should have maintained records from the
selecting officials that reflected their personal knowledge of the applicants and any
interactions they had had with the applicants. RPFR File, Tab 1 at 6 -7.
6 Regarding the single VEOA claim, th e agency provided transcripts, résumé s, and
internal processing data as it related to that one vacancy. RF, Tab 7 at 7, 60 -105.
7
the hearing, and we must defer to these findings absent “sufficiently sound ”
reasons.7 See Purifoy , 838 F.3d at 1372 -73; Haebe , 288 F.3d a t 1301 .
¶11 The appellant also argues on review that the administrative judge erred
when she did not consider the “mosaic of evidence ” that implies a discriminatory
intent, pursuant to Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 42
(2015) , overruled in part by Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶¶ 23-25. RPFR File, Tab 1 at 6, 11. We find that the
appellant ’s reliance on Savage is misplaced; the Board does not apply the
evidentiary framework in Savage , which is directed at 42 U.S.C. § 2000e -16
discrimination claims raised as an af firmative defense, to USERRA cases.
Nonetheless , we find no error in the administrative judge ’s consideration of the
evidence.
¶12 In the initial decision, the administrative judge considered testimony from
the two selecting officials responsible for the five challenged vacancies and
development opportunities at issue in the appellant ’s petition for review. RID
at 10-17. Both officials testified that neither subjected the appellant to
unfavorable treatment base d on his military experi ence. HCD (testimony of the
selecting officials) ; RID at 12, 14. The administrative judge also considered the
selecting officials ’ testimony that, in three of the five challenged nonselections,
the ultimate selectees had military experience and were vete rans themselves. RID
at 11 & n.8, 15. She further considered testimony regarding the other two
vacancies, which were both advert ised at the GS -07 and GS -09 levels. RID
at 15-17. The selecting official for those vacancies testified that, although the
7 Even if we assumed that the selecting official told the appellant that she did not
“select scrap,” the appellant has failed t o even allege that the statement was made in
reference to his military status or to provide any other reason that would create the
inference that the statement was grounded in anti-military animus. To the contrary, the
appellant alleged in an accompanying affidavit to an EEO filing that the selecting
official’s statement was in reference to his dis ability, color, national origin , and prior
EEO acti vity. IAF, Tab 7 at 18.
8
appellant was qualified for the GS -07 level, she selected applicants who qualified
for the GS -09 level because they had more relevant experience and education.
HCD (testimony of the selecting official) ; RID at 15 -17. Based on the foregoing,
we find that th e administrative judge sufficiently considered all the relevant
evidence, and we agree with her conclusion that the appellant failed to prove by
preponderant evidence that his military service was a motivating or substantial
factor in the agency ’s decision s. 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).
¶13 Finally, t he appellant argues that he had superior qualif ications than the
other applicants. RPFR File, Tab 1 at 3, 6-7, 10 -11. However, t he Board does
not consider whether the applicant was entitled to or qualified for the position
when analyzing a traditional USERRA nonselection appeal ; rather, once
jurisdiction is established, the Board considers whether the appellant has shown
that his military status was a motivating or substantial factor in the agency ’s
action and whether the agency has shown that it would have taken the same action
despite the appellant ’s protected status. Becwar v. Department of Labor ,
115 M.S.P.R. 689 , ¶ 7 (2011) , aff’d, 467 F. App ’x 886 (Fed. Cir. 2012) . Thus,
even if the appellant could show that he was the best candidate and should have
been selected, he would only prevail on his USERRA claim if he met the burden
outlined in Sheehan and the agency then failed to meet its own burden . Sheehan ,
240 F.3d at 1013. Accordingly, we find this argument to be without merit.
¶14 We have considered the appellant ’s other arguments on review, but we
9
conclude that a different outcome is not warranted. Accordingly, we affirm the
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 fi le. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does 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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.
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.
Washi ngton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/prob ono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receive s this decision. If the action involves a claim of discrimination based on
11
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepaym ent of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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
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. Cour t 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 Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9 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.
13
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 | PEREZ_ORLANDO_DA_3443_15_0125_B_1_FINAL_ORDER_2038991.pdf | 2023-06-07 | null | DA-3443 | NP |
3,045 | https://www.mspb.gov/decisions/nonprecedential/PETE_DAVID_R_DA_0752_17_0086_I_1_FINAL_ORDER_2038221.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID R. PETE,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DA-0752 -17-0086 -I-1
DATE: June 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stanley Smith , San Antonio, Texas, for the appellant.
Timothy F. Maughan , Grand Prairie, 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 his removal for physical/medical inability to perform the duties of his
position . On petition f or review, the appellant argues that the administrative
judge erred in sustaining the charge and in finding that he failed to prove his
affirmative defenses of race discri mination and retaliation for filing equal
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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
employment opportunity complaints. 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 ba sed 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 require d procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not establish ed any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED to clarify (1) the legal standard applicable to the agency’s charge and
(2) the legal standard applicable to the appellant’s claim of disparate treatment
disability discrimination, we AFFIRM the initial decision .
¶2 In his initial decision, the admin istrative judge stated that, to prove its
charge, the agency was required to show the following: (1) the appellant’s
disabling condition itself was disqualifying; (2) its recurrence could not be ruled
out; and (3) the duties of the appellant’s position we re such that a recurrence
would pose a reasonable probability of substantial harm. Initial Appeal File
(IAF), Tab 40, Initial Decision (ID) at 11 (citing Sanders v. Department of
Homeland Security , 122 M.S.P.R. 144 , ¶ 11, aff’d , 625 F. App’x 549 (Fed. Cir.
2015)); see 5 C.F.R. § 339.206 .2 Following the issuance of t he initial decision,
2 Subsequent to the appellant’s removal, the Office of Personnel Management amen ded
5 C.F.R. § 339.206 as to the degree of risk required . Medical Qualification
Determinations, 82 Fed. Reg. 5340 -01, 5346 -47, 5352 (Jan. 18, 2017) (Final Rule).
However, given our find ings herein, this amendment is not material to the outcome of
this appeal; thus, we need not address whether the regulatory changes apply
retroactively. See Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 11 n.2.
3
however, the Board determined that this standard applies only when an employee
who occupies a position with medical standards is removed based solely on
medical history, i.e., when the only basis for concluding that the employee was
medically unable to perform the core duties of his position was the fact that his
medical records reflected that, at some time in the past, he was classified as
having, was examined for, and/or was treated for the medical condition or
impairment in question. Haas v. Department of Homeland Security , 2022 MSPB
36, ¶¶ 10 -15. The Board explained that in cases, as here, involving a current
medical condition, the agency must prove either a nexus between the employee’s
medical condition and observed deficiencies in his performance or conduct, or a
high probability, given the nature of the work involved, that his condition may
result in injury to himself or others. Id., ¶ 15. The Board has otherwise described
this standard as requiring that the agency establish that the appellant’s medical
condition prevents him from being able to safely and efficiently perform the core
duties of his position. Id.
¶3 Here, although the administrative judge both enumerated and applied the
standard set forth in 5 C.F.R. § 339.206 , remand is unnecessary because the
record is fully developed on the relevant issues. See id ., ¶ 20. To this end, the
administrative judge concluded, after weighing the relevant medical opinions ,
that the appellant’s back, neck, and spine conditions rendered him medically and
physically unable to perform the essential functions of his position at the time of
his removal . ID at 11 -17; see Haas , 2022 MSPB 36, ¶ 15. We agree with this
finding. Indeed , as set forth in the initial decision, the appellant’s Correctional
Officer (Senior Officer) position contained several physical requirements,
including lifting objects weighing 25 pounds , carrying a stretche r with one other
person, and dragging a body an extended distance. ID at 11-12; IAF, Tab 11
at 54-55, Tab 27 at 4 -7. The administrative judge found persuasive the medical
opinion of a physician who opined that the appellant was medically unable to
4
perform many of these physical requirements. ID at 15. Thus, a different
outcome is not warranted.
¶4 The appellant does not challenge the administ rative judge’s conclusion that
he failed to prove h is affirmative defense of disparate treatment disability
discrimin ation. We discern no error with the administrative judge’s motivating
factor analysis and we thus need not reach whether the appellant’s disability was
a but -for cause of the removal action. See Pridgen v. Office of Management and
Budget , 2022 MSPB 31 , ¶40.
¶5 Accordingly, we affirm the initial decision as modified.3
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 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 r equirements. Failure to file
3 In analyzing the appellant’s claims of race discrimination and reprisal using the
framework set forth in Savage , the administrative judge referenced direct evidence and
types of circumstantial evidence. ID at 20 -21. However, insofar as we find no
indication that he disregarded any evidence because of its di rect or circumstantial
nature, a different outcome is not warranted. See Gardner v. Department of Veterans
Affairs , 123 M.S.P.R. 647 , ¶ 30 (2016) , clarified by Pridgen , 2022 MSPB 31, ¶¶ 23-24.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appel lants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http:/ /www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept r epresentation 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 bas ed, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appea ls for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your repr esentative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requ irement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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 personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of 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 Appea ls
for the Federal Circuit or any other circuit court 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
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.
Contact information for the courts of appeals can be 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 | PETE_DAVID_R_DA_0752_17_0086_I_1_FINAL_ORDER_2038221.pdf | 2023-06-06 | null | DA-0752 | NP |
3,046 | https://www.mspb.gov/decisions/nonprecedential/MCGREGOR_DEBORAH_J_AT_1221_15_0846_B_1_REMAND_ORDER_2038360.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBORAH J. MCGREGOR, M.D ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -15-0846 -B-1
DATE: June 6, 2023
THIS ORDER IS NONPRECEDENTIAL1
Sarah Dragotta , Esquire, Exton, Pennsylvania, for the appellant.
Tsopei Robinson , Montgomery, 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 her individual right of action (IRA) appeal for lack of jurisdiction . For
the reasons discussed below, we GRANT the appellant’s petition for review,
FIND that she established the Board’s jurisdiction over her claims, VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
initial decision, and REMAND the appeal to the Atlanta Regional Office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The procedural history in this matter is long and involved. Many of the
essential facts are set forth in the Board’s 2016 Remand Order , and we rely on
that decision as appropriate . McGregor v. Department of Veterans Affairs , MSPB
Docket No. AT 1221 -15-0846 -W-2, Remand Order (July 5, 2016) (Remand
Order).
¶3 Effective August 1 5, 2010, the agency appointed the appellant to an
excepted -service position as a Physician with the agency’s Central Alabama
Veterans Healthcare System (CAVH CS) under the authority of 38 U.S.C.
§ 7401(1). Id., ¶ 2. Her appointment was subject to a 2 -year trial period. Id. By
letter dated December 7, 2011, the agency informed the appellant that she would
be terminated during her trial period, effective December 28, 2011, based on the
recommendat ion of the agency’s Professional Standards Board (PSB), which
found that she had engaged in “substandard care, professional misconduct, or
professional incompetence.” Id. On September 1, 2015, the appellant filed a
Board appeal, challenging her terminati on and arguing that she received an
unjustified unsatisfactory performance appraisal in reprisal for her filing a
complaint with the Office of Inspector General (OIG) and for disclosing
operational concerns regarding : (1) the lack of basic equipment ; (2) the lack of
security guards when dealing with difficult patients ; (3) the practice of
over -prescribing pain medication ; and (4) inadequate patient care resulting from
staffing issues and negligent staff . McGregor v. Department of Veterans Affairs ,
MSPB Do cket No. AT -1221 -15-0846 -W-1, Appeal File (W -1 AF), Tab 1 at 5, 12 .
¶4 Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction. Remand Order , ¶ 7. He found that
the appellant could not dire ctly appeal her termination to the Board because she
was not an “employee” with 5 U.S.C. chapter 75 appeal rights , and that, although
3
the appellant exhausted her administrative remedy with the Office of Special
Counsel ( OSC ), the Board otherwise lacked jurisdiction over the her claims as an
IRA appeal because an agency physician appointed under 38 U.S.C. § 7401 (1)
whose termination involved a question of professional conduct or competence ,
such as the appellant’s , is excluded by that same statute from Board jurisdiction
over IRA appeals. Id.
¶5 The appellant filed a petition for review of that initial decision, which the
Board granted. The Board found that the administrative judge correc tly decided
that the Board lack ed jurisdiction over the appellant’s claims as a direct appeal to
the Board under 5 U.S.C. chapter 75. Remand Order , ¶ 9. However , citing
Harding v. Department of Veterans Affairs , 448 F.3d 1373 , 1375 -77 (Fed. Cir.
2006), the Board vacated the administrative judge’s finding that it lacked
jurisdiction over the IRA appeal because the appellant’s termination involved a
question of professional conduct or competence, finding that such a termination
did not preclude jurisdiction. Remand Order, ¶¶ 10 -11. It also vacated the
administrative judge’s finding that the appellant had shown that she exhausted her
administrativ e remed y with OSC. Id., ¶ 18. The Board remanded the appeal for
the administrative judge to issue a jurisdictional order informing the appellant of
the burden and elements of proof for establishing jurisdiction over her IRA
appeal, and to afford the parties an opportunity to submit evidence and argument
regarding the timeliness of any claims that she exhausted before OSC. Id.,
¶¶ 18-19.
¶6 On remand, the administrative judge issued an order regardi ng jurisdiction
and timeli ness. McGregor v. Department of Veterans Affairs , MSPB Docket
No. AT-1221 -15-0846 -B-1, Remand File ( RF), Tab 2. In response, the appellant
recounted numerous events that occurred during her tenure at CAVH CS that she
alleges constitute injustices, lapses in policy and procedure, and “micro
aggression towards patients and professional staff” that reveal a health care
system without sufficient safeguards for quality of care. RF, Tab 3. She also
4
reiterated her claim that she was retaliated against for discl osing her concerns
regarding the state of operations at the CAVHCS facility , as detailed above . Id.
at 5-6, 8, 14 -15, 17, 19, 21.
¶7 In a remand initial decision, the administrative judge found that none of the
documentation submitted by the appellant establ ished exhaustion with OSC by
preponderant evidence. RF, Tab 4, Remand Initial Decision (R ID) at 6-7. He
further observed that the appellant failed to submit a copy of her OSC complaint
and that she did not otherwise claim before the Board that she exhaus ted her
claims with OSC. R ID at 7 -8. Thus, he found that the appellant failed to
establish the exhaustion requirement , and he dismissed the appeal for lack of
jurisdiction. R ID at 9-10.
¶8 The appellant has filed the instant petition for review of the remand initial
decision. McGregor v. Department of Veterans Affairs , MSPB Docket
No. AT-1221 -15-0846 -B-1, Remand Petition for Review File, (RPFR File), Tab 1.
She relies on her sworn statement before the Pennsylvania State Board of
Medicine to show that she made protected disclosures and generally appears to
suggest that the Board should similarly find that she was credible. Id. at 5, 8.
She states that she presented OSC with the same examples of agency wrongdoing
that she presented to the Board. Id. at 11. The agency has not responded to the
appellant’s petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 We start our analysis by explaining that, because all of the appellant’s
alleged disclosures and the personnel actions at issue in this appeal occurred prior
to the December 27, 2012 effective date of the Whistleblower Protection
Enhancement Act (WPEA) , the applicable statute is the Whistleblower Protection
Act of 1989 (WPA) . Pub. L. No. 112 -199, § 202, 126 Stat 1465 , 1476 ; Pub. L.
No. 101-12, 103 Stat. 16 . While t his decision occasionally cites to post -WPEA
5
case law, it does so only when the premise for which a case is cited is not
implicate d by a change in law under the WPEA .
¶10 Under the WPA, the Board has jurisdiction over an IRA appeal if the
appellant has exhausted her administrative remed y before OSC and makes
nonfrivolous allegations that she engaged in whistleblowing activity by making a
protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the disclosure was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302 (a). Yunus v. Department of Veterans
Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001); Mason v. Department of Homeland
Security , 116 M.S.P.R. 135 , ¶ 7 (2011). As noted, t he essence of the appellant ’s
argument is that, in reprisal for filing an OIG complaint and making disclosures
about a lack of proper equipment, lack of security guards, the practice of
over -prescribing pain medication , and inadequate patient care resulting from
staffing issues and negligent staff , the agency gave her a unsatisfactory
performance evaluation and terminated her. W-1 AF, Ta b 1 at 5, Tab 5 ; RF,
Tab 3; RPFR File, Tab 1 . She also alleges that she exhausted her remedy before
OSC. RPFR File, Tab 1 at 11. We first address the exhaustion element.
The appellant proved by preponderant ev idence that she exhausted her
administrative remedy with OSC.
¶11 To satisfy the exhaustion requirement of 5 U.S.C. § 1214 (a)(3), an appellant
must have provided OSC with a sufficient basis to pursue an investigation into
her allegations of whistleblower reprisal. Skarada v. Department of Veterans
Affairs , 2022 MSPB 17 , ¶ 7; Chambers v. Department of Homeland Security ,
2022 M SPB 8 , ¶ 10. Generally, exhaustion can be demonstrated through the
appellant’s OSC complaint, evidence the original complaint was amended
(including but not limited to OSC’s determination letter and other letters from
OSC referencing any amended allegatio ns), and the appellant’s written responses
to OSC. Skarada , 2022 MSPB 17 , ¶ 7; Mason , 116 M.S.P.R. 135 , ¶ 8.
Alternatively, exhaustion may be prove n through other sufficiently reliable
6
evidence, such as an affidavit or declaration attesting that the app ellant raised
with OSC the substance of the facts in her appeal. Skarada , 2022 MSPB 17 , ¶ 7;
Chambers , 2022 MSPB 8 , ¶ 11.
¶12 With the appellant’s initial appeal, she included an August 3, 2015 letter to
OSC referencing her OSC case file number MA -15-3687 and setting forth her
reprisal claims for disclosures concerning, among other things, inadequate patient
care resulting from staffing issues and negligent staff and the lack of basic
equipment and adequate security. W -1 AF, Tab 1 at 9 -15. She also subm itted an
August 27, 2015 close -out letter from OSC for that case, which addressed her
claims of retaliation. Id. at 16 -17. Additionally, following the Board’s Remand
Order, the appellant attached to her response to the administrative judge’s
jurisdictional order a copy of a January 17, 2012 letter from OSC concerning a
complaint docketed as case file number MA -11-2861. RF, Tab 3 at 38. The letter
discusses some of the allegations regarding her refusal to prescribe pain
medication to patients whose condition did not warrant a prescription. Id.
¶13 In the remand initial decision, the administrative judge found that OSC’s
Janua ry 17, 2012 letter denying relief in the complaint docketed as MA -11-2861
revealed that the appellant’s claim with OSC filed in 2011 did not contain
allegations of whistleblower reprisal. R ID at 6-7. He also considered OSC’s
August 27, 2015 close -out let ter concerning OSC File No. MA -15-3687 but
ultimately found that the appellant neither provided a copy of her complaint to
OSC nor described her allegations of exhaustion in an affidavit, sworn statement,
or declaration under penalty of perjury. R ID at 7 -8. Thus, he found that the
appellant failed to establish the exhaustion requirement.2
2 In making these findings, the administrative judge relied on the Board’s pre -Chambers
case law, which required the appellant to show by preponderant evidence that she
informed OSC of the “precise grounds” of her charge of whistleblowing. R ID at 4 -5;
Ward v. Merit Systems Protection Board , 981 F.2d 521 , 526 (Fed. Cir. 1992). In
Chambers , the Board clarified that the substantive requirements of exhaustion are met
when an appellant has provided OSC with sufficient basis to pursue an investigation
7
¶14 On review, the appellant challenges this finding and asserts that she brought
all her claims to OSC. RPFR File, Tab 1 at 11. This assertion, made under the
penalty o f perjury, id. at 3, in conjunction with the appellant’s August 3, 2015
letter to OSC and OSC’s August 27, 2015 close -out letter lead s us to conclude
that she met the exhaustion requirement , see Chambers , 2022 MSP B 8, ¶ 11 . In
the August 27, 2015 close -out letter, OSC acknowledged the appellant’s
allegations that she was retaliated aga inst for making disclosures regarding the
“lack of equipment, poor assignment of available staff, poor patient care, and the
absence of security guards.” W -1 AF, Tab 1 at 17. It also referenced the
appellant’s claims regarding the agency’s alleged practi ce of over -prescribing
pain medication. Id. Additionally, her August 3, 2015 letter to OSC discusse d
her disclosure regarding the negligent treatment of patients and staff due to
staffing issues, the lack of proper equipment, and the absence of security guards.
Id. at 12 -14. She also stated in the August 3, 2015 letter to OSC that she was also
retaliated against for filing a complaint with the agency’s OIG. Id. at 13. Based
on the foregoing, we find that the appellant proved by preponderant evidence and
through appropriate means that she provided OSC with a sufficient basis to
pursue an investigation. The appellant’s failure to submit her OSC complaint
does not change this finding. See Chambers , 2022 MSPB 8 , ¶ 11; Smart
v. Department of the Army , 98 M.S.P.R. 566 , ¶ 10 n.4, aff’d , 157 F. App’x 260
(Fed. Cir. 2005) .
¶15 Because the administrative judge found in the remand decision that the
appellant failed to exhaust her administrative remedy, he did not consider whether
she nonfrivolously alleged that she made a protected disclosure under 5 U.S.C.
and that an appellant may give a more detailed account of their whistleblowing
activities befo re the Board than they did to OSC. Skarada , 2022 MSPB 17 , ¶ 7;
Chambers , 2022 MSPB 8 , ¶ 10. The remand initial decision in this matter was issued
prior to the Board’s issuance of Chambers .
8
§ 2302 (b)(8) that was a contributing factor in a personnel action. Thus, we do so
here.
The appellant nonfrivolously alleged that she made protected disclosures under
5 U.S.C. § 2302 (b)(8).
¶16 Under the WPA, an appellant makes a protected disclosure when she
discloses something that she reasonably believes evidences a violation of law,
rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health and safety.
5 U.S.C. § 2302 (b)(8 ); Mason , 116 M.S.P.R. 135 , ¶ 17. 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 actions evidence any of the wrongdoing set forth in
5 U.S.C. § 2302 (b)(8) . Id. As set forth above, the appellant asserted that she
disclosed to agency officials on numerous occasions a lack of basic equipment, a
lack of security for staff dealing with difficult patients, the practice of some staff
to over -prescribe pain medication, and inadequate patient care resulting from
staffing issues and negligent staff .
¶17 Regarding the disclosure concerning the lack of equipment, the appellant
asserted that she personally observed as soo n as she began her position with the
agency that there was a “ lack of basic medical equipment” and that she
complained to upper management , including the Manager of Nursing and the
Deputy Assistant Chief of Staff, who was her “[r]eporting [o]fficer ” at the time
about these conditions . W -1 AF, Tab 5 at 5 -6, 12-13, 23-24, 26, 34-35.
Specifically, she asserted that there was no equipment for serious medical
emergencies , which resulted in staff summoning an ambulance to take patients to
other facilities, no s table cardiopulmonary resuscitation (CPR) equipment , no
equipment to remove a deer tick in a patient, and no equipment to remove
stitches . Id. at 12 -13; RF, Tab 3 at 23 -24. Of the categories of wrongdoing set
9
forth in 5 U.S.C. § 2302 (b)(8), this disclosure most closely align s with “a
substantial and specific danger to public health or safety” because it directly
impacts the agency’s care for patients . Notably, regarding the allegation
concerning the lack of CPR equipment, the nature and harm that could result from
this lack of equipment is severe because patients could potentially die without the
proper equipment. See Parikh v. Department of Veterans Affairs , 116 M.S.P.R.
197, ¶ 15 (2011). Regarding the appellant’s reasonable belief in this disclosure,
the Board has reasoned that allegations based on a “personal observation” can
constitute a nonfrivolous allegation that an appellant had a reasonable belief that
her disclosures evidenced the wrongdoing set for th in 5 U.S.C. § 2302 (b)(8).
See Kinsey v. Department of the Navy , 107 M.S.P.R. 426 , ¶ 17 (2007). Based on
the foregoing, we find that the appellant nonfrivolously alleged that, when she
disclosed the lack of proper medical equipment, she disclosed matters that she
reasonably believed evidenced a substantial and specific danger to public health
or safety, and that she, therefore, made a nonfrivolous allegation of a protected
disclosure in thi s regard.
¶18 The appellant also alleged that she disclosed a lack of security for staff
members dealing with difficult patients . Specifically, she asserted that the East
Campus of CAVHCS had only two security guards assigned to cover its 180 -acre
campus, and that, in one instance, “two male patients double -teamed [her] for a
‘hasty’ prescription refill and travel money.” W -1 AF, Tab 5 at 16. She further
explained that she “frequently feared for her personal safety” because of the
inadequate number of sec urity guards to protect from “disgruntled patients who
physically confronted her.” Id. She asserted that she emailed senior
management, including the Deputy Assistant Chief of Staff and the Assistant
Chief of Staff of Ambulatory Care about these concerns . Id. at 31. Of the
categories of wrongdoing, this allegation most closely aligns with an allegation of
gross mismanagement. Gross mismanagement is more than de minimis
wrongdoing or negligence, and it does not mean action or inaction which
10
constitutes simple negligence or wrongdoing. See Smith v. Department of the
Army , 80 M.S.P.R. 311 , ¶ 8 (1998). Rather, an appellant discloses gross
mismanagement when she alleges that a management action or inaction creates a
substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission. Cassidy v. Department of Justice , 118 M.S.P.R. 74 , ¶ 8
(2012); see Smith , 80 M.S.P.R. 311, ¶ 8. Here, we construe the appellant’s
allegation as one asserting that the lack of security guards to protect physicians
presents the serious risk that physicians may not be able to effectively treat
patients and carry out the agency’s core mission of caring for veterans.
Additionally, the appellant has alleged that her belief in this wrongdoing is based
on her own personal experiences with difficult patients without security guards on
duty. Based on the foregoing, we find that the appellant nonfrivol ously alleged
that, when she disclosed the lack of security guards for staff dealing with difficult
patients, she disclosed conduct that she reasonably believed evidenced gross
mismanagement, and that she, therefore, made a nonfrivolous allegation of a
protected disclosure in this regard. See Cassidy , 118 M.S.P.R. 74 , ¶ 8; Kinsey ,
107 M.S.P.R. 426 , ¶ 17.
¶19 Regarding the appellant ’s disclosure concerning some staff’s practice of
over -prescribing pain medication, she alleged that she disclosed to at least the
Deput y Assistant Chief of Staff that there was “an illegal ‘pi ll mill’ atmosphere ”
at the CAVHC S. W-1 AF, Tab 5 at 83; RF, Tab 3 at 27. To support her belief in
this allegation, the appellant asserted that she had witnessed a quantity of pain
medication passi ng through one provider with an estimated street value of
4-5 million dollars annually despite no documented need for such medication.
W-1 AF, Tab 5 at 22 -23, 33, 36. Such an allegation aligns with several categories
of wrongdoing set forth in section 23 02(b)(8), including an abuse of authority,3 a
3 An employee discloses an abuse of authority when she allege s that a Federal official
has arbitrarily or capriciously exercised power which has adversely affected the rights
of any person or has resulted in personal gain or advantage to herself or to other
11
substantial and specific danger to public health and safety, and a violation of law,
rule, or regulation , as the substance of the appellant’s disclosure raises questions
regarding whether a Federal official arbitrarily exercised his or her power for
personal gain or the gain of others , whether a large quantity of pain medication
would be distributed into the community without authorization, and whether the
physician and/or others broke any laws , rules, or regulations regarding the
distribution and use or prescription medications. In any event, the Board does not
require, as a basis for jurisdiction, that an appellant correctly label a category of
wrongdoing under the WPA. See Rzucidlo v. Department of the Army ,
101 M.S.P.R. 616 , ¶ 13 (2006). Further, the appellant again alleged that she
personally witnessed at le ast one instance of this practice. W-1 AF, Tab 5 at 22.
Accordingly, we find that the appellant nonfrivolously alleged that, when she
disclosed the purported improper prescribing of pain medication, she was
disclosing conduct that she reasonably believed evidenced the sort of wrongdoing
set forth in 5 U.S.C. § 2302 (b)(8) , and that she, therefore, made a nonfrivolous
allegation of a protected disclosure in this regard . See Kinsey , 107 M.S.P.R. 426 ,
¶ 17.
¶20 The appellant also alleged that she continuously disclosed inadequate
patient care resulting from staffing issues and negligent staff. W-1 AF,
Tab 5 at 34-35. For example, she explained that walk -in patients would not be
discovered until several hours after their arrival and that some of the few nurses
on staff would ignore patients in observable distress . RF, Tab 3 at 15, 19, 21.
She asserted that she constantly disclosed these concerns to the Nurse Manager
and the Assistant Chief of Staff. Id. at 15. As with the appellant’s disclosure
regarding th e lack of security to deal with difficult patients , we believe this
allegation is one of gross mismanagement. Again, an allegation of gross
mismanagement involves an allegation of management action or inaction which
preferred persons. Webb v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 10 n.3
(2015).
12
creates a substantial risk of significa nt adverse impact on the agency’s ability to
accomplish its mission. Cassidy , 118 M.S.P.R. 74 , ¶ 8; see Smith , 80 M.S.P.R.
311, ¶ 8. Here, the agency’s foremost mission is to pr ovide adequate care for
veterans . Thus, complaints that management’s decisions regarding staffing and
its practice of ignoring complaints of inadequate care suggest that the agency
both engaged and failed to engage in conduct that created a substantial risk of
adverse impact on the agency’s ability to acc omplish its mission. Moreover, the
appellant’s allegations appear to be based on her personal experiences and
observations. RF, Tab 3 at 15, 19, 21. Therefore, we find that the appellant
nonfrivolously alleged that, when she disclosed inadequate patient care and
management’s refusal to address it , she was disclosing conduct that she
reasonably believed evidenced gross mismanagement, and that she, therefore,
made a nonfrivolous allegation of a protected disclosure in this regard. See
Cassidy , 118 M.S.P.R. 74 , ¶ 8; Kinsey , 107 M.S.P.R. 426 , ¶ 17.
¶21 Turning to the appellant’s OIG complaint, she alleges that sometime in
2011, she filed a complaint with the agency’s OIG regarding her concern about
physicians over -prescribing pain medication. W -1 AF, Tab 5 at 8. Under the
WPA, a disclosure to the OIG is protected when the employee making the
disclosure reasonably believes that the contents of the complaint evidences a
violation of law, rule, or regulation, gross mismanagement, a gross waste of
funds, an abuse of aut hority, or a substantial and specific danger to public health
or safety. See 5 U.S.C. § 2302 (b)(8)(B). Because we already found that the
appellant nonfrivolously alleged that she reasonably belie ved that she was
reporting wrongdoing under section 2302(b)(8)(A ) when she allegedly disclosed
her concerns about the over -prescribing of pain medication, see supra ¶ 19, we
also find that the appellant made a nonfrivolous allegation of a protected
disclosure under section 2302(b)(8)(B) when she filed her OIG complaint.
13
The appellant nonfrivolously alleged that the agency took personnel actions
against her.
¶22 The appellant has alleged that the agency gave her a n unsatisfactory
performance evaluation and terminated her. W-1 AF, Tab 1 at 5. A termination
and performance evaluation are covered personnel actions under 5 U.S.C.
§ 2302 (a)(2)(A)(iii), (viii). Thus, we find that the appe llant nonfrivolously
alleged that the agency took personnel actions against her.
The appellant has nonfrivolously alleged that her protected disclosures and OIG
complaint were a contributing factor in her termination and that her protected
disclosures wer e a contributing factor in her unsatisfactory performance
appraisal , but she failed to nonfrivolously a llege that the OIG complaint was a
contributing factor to the unsatisfactory performance appraisal .
¶23 To satisfy the contributing factor criterion at the jurisdictional stage of an
IRA appeal , an appellant need only raise a nonfrivolous allegation that the fact of,
or content of, the protected disclosure was one factor that tended to affect the
personnel action in any way. Mason , 116 M.S.P.R. 135 , ¶ 26. One way to
establish this criterion is the knowledge/ timing test, under which an employee
may nonfrivolously allege that the d isclosure 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 rea sonable person could
conclude that the disclosure was a contributing factor in the personnel action. Id.
¶24 Addressing the application of the knowledge/timing test to the four alleged
disclosures to agency managers set forth above, the appellant asserted t hat the
“[a]gency officials responsible for the personnel actions . . . were aware of her
disclosures and acted within such time that a reasonable person could find that the
disclosures contributed to their egregious actions against her.” RF, Tab 3 at 33.
Specifically, regarding her unsatisfactory performance appraisal , the appellant
alleged that the Assistant Chief of Staff of Ambulatory Care rated her
“Unsatisfactory” in a June 6, 2011 performance evaluation and that he was aware
14
of her disclosures at that time . Id. at 25, 28; W-1 AF, Tab 5 at 37 . Thus, the
appellant has nonfrivolously alleged that the agency official responsible for this
personnel action had knowledge of her disclosures, thereby satisfying the
knowledge prong of the knowing/timing test at the jurisdictional stage .
¶25 Regarding the timing prong of the knowledge/timing test, the appellant
alleged that she disclosed the lack of basic medical equipment “[s]oon after
assuming her position” in August of 2010. W -1 AF, Tab 5 at 34. She als o
asserted that she disclosed the lack of security for the first time in
December 2010, W -1 AF, Tab 5 at 12 n.2, the over -prescribing of pain
medications beginning in late 2010 through at least July 2011 , id. at 83; RF,
Tab 3 at 27 , and the inadequate care of patients for the first time in October 2010 ,
W-1 AF, Tab 5 at 12 n.2 .4 The Board has explained that personnel actions that
occur within 1 -2 years of a protected disclosure meet the timing prong of the
knowledge/timing test. Wilson v. Department of Ve terans Affairs , 2022 MSPB 7 ,
¶ 41; Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶¶ 18, 21 (2015).
Because these disclosures all occurred within 1 year of the June 6, 2011
performance apprai sal, we find that the appellant’s allegations regarding all four
disclosures meet the timing prong of the knowledge/timing test. Based on the
foregoing, we find that the appellant’s allegations satisfy both prongs of the
knowledge/timing test, and that sh e has, therefore, nonfrivolously alleged that her
protected disclosures were a contributing factor to the performance evaluation.
See Mason , 116 M.S.P.R. 135 , ¶ 26
¶26 Turning to the appellant’s termination, we are unable to ascertain from the
record whether the appellant is alleging that the deciding official had knowledge
4 Specifically regarding the appellant’s disclosures about the lack of security and the
inadequate car e of patients, the appellant alleged that the referenced dates represent the
“first of many complaints,” W -1 AF, Tab 5 at 12 n.2, and her pleadings generally
suggest that she continually complained of these issues. For purposes of the
contributing factor analysis, the last time a disclosure is made prior to the personnel
action at issue is the relevant date for the timing prong of the knowledge/timing test.
15
of her disclosures. However, the deciding official explained in t he December 7,
2011 termination notice that the PSB convened to review the appellant’s conduct
and performance and recommended that the appellant be separated during her
probationary period, and the appellant has alleged that the members of the PSB
had kno wledge of her disclosures. W -1 AF, Tab 1 at 7, 14. In addition to
showing actual knowledge, an appellant can also nonfrivolously allege that a
disclosure was a contributing factor to a personnel action by alleging that the
official taking the action had constructive knowledge of the disclosure. See
Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶ 11 (2012). An appellant
may nonfrivolously allege constructive knowledge by alleging that an individual
with actual knowledge of the disclosure influenced the official accused of taking
the retaliatory action. See id . Because the appellant has alleged that the members
of the PSB ha d knowledge of her disclosures and influenced the agency’s
decision to terminate her, we find that she nonfrivolously alleged that the
deciding official had constructive knowledge of her disclosures.5 As such, the
appellant’s allegations meet the knowledge prong of the knowledge/timing test.
¶27 Regarding the timing prong, the appellant has alleged that the PSB members
learned of her disclosures “early on.” W -1 AF, Tab 1 at 14. Although this
allegation is imprecise , we construe allegation s liberally in favor of finding
jurisdiction, given the minimal showing required to meet the nonfrivolous
standard. See Skarada , 2022 MSPB 17 , ¶ 6 (stating that any doubt or ambiguity
5 As previously discussed, the appellant alleged that she received an unsatisfactory
performance ap praisal on June 6, 2011, RF, Tab 3 at 25 , and that the PSB met in late
2011 to discuss her conduct and performanc e, W-1 AF, Tab 11 at 16. Given the
timeline, it is conceivable that the June 6, 2011 performance appraisal was considered
as a part of the PSB ’s review. As noted above, the appellant has alleged that the
Assistant Chief of Ambulatory Care —the agency official responsible for the
performance appraisal —had knowledge of her disclosures. W -1 AF, Tab 5 at 37; RF,
Tab 3 at 25, 28. Thus, we construe these claims as allegations assert ing that the
Assistant Chief of Ambulatory Care also influenced the agency’s decision to terminate
the appellant, further supporting the finding that the deciding official had constructive
knowledge of the appellant’s disc losures.
16
as to whether the appellant made a nonfrivolous jurisdictional allegation should
be resolved in favor of finding jurisdiction); Jessup v. Department of Homeland
Security , 107 M.S.P.R. 1 , ¶ 10 (2007) (observing that the appellant’s burden of
making a nonfrivolous allegation is low and requires only a minimal sufficient
showing) . Again, the appellant’s employment with the agency began in
August 2010, and , according to the appellant, the PSB met to discuss her
performance and conduct on October 31, 2011 . W-1 AF, Tab 1 at 10. We
reasonably construe the appellant’s claim that the members of the PSB became
aware of her disclosures “early on” to at least allege that they became aware of
them prior to October 31, 2011. The PSB recommended that the agency terminate
the appellant sometime between October 31, 2011 , and December 7, 2011, which
is within 1 -2 years of its members becoming aware of the disclosures. Thus, we
find that the appellant’s allegations also meet th e timing prong of the
knowledge/ timing test. Accordingly, we find that the appellant has
nonfriv olously alleged that h er four disclosures were contributing factors in her
termination.
¶28 Regarding the appellant’s OIG complaint, the record demonstrates that this
complaint was filed on or around June 23, 2011. W -1 AF, Tab 5 at 80 -81. As set
forth above, the appellant’s unsa tisfactory performance ap praisal was issued prior
to the appellant’s OIG complaint , on June 6, 2011. RF, Tab 3 at 25. Given this
timeline, the appellant’s OIG complaint could not have been a contributing factor
to the performance appraisal because it occ urred after the appraisal. Mason ,
116 M.S.P.R. 135, ¶ 27 (finding that disclosures occurring after the personnel
actions at issue co uld not have been contributing factors in those actions ); Orr v.
Department of the Treasury , 83 M.S.P.R. 117 , ¶ 15 (1999) (same) , aff’d per
curiam 232 F.3d 912 (Fed. Cir. 20 00).
¶29 Turning to the appellant’s termination, the appellant has not alleged that
any of the officials involved in that action, including the deciding official and the
PSB members , were aware of her OIG commu nications. W -1 AF, Tabs 1, 5; RF,
17
Tab 3. Thus, she has not alleged facts that would satisfy the knowledge/timing
test. If an employee fails to sati sfy the knowledge/timing test, the Board
consider s other evidence, such as th at pertaining to the strength or weakness of
the agency’s reason s for taking the actions, 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. Rumsey v.
Department of Justice , 120 M.S. P.R. 259 , ¶ 26 (2013) ; Dorney , 117 M.S.P.R.
480, ¶ 15 .
¶30 Regarding the strength or weakness of the agency’s reasons for taking the
action, the appellant alleges that her termination was based on a recommendation
from the PSB, which provided four bases for the appellant’s improper conduct
and inadequate performan ce. W -1 AF, Tab 5 at 27 -28. She further alleges that
the Pennsylvania State Board of Medicine examined these claims and found her
“not culpable” in three of them. Id. at 11, 106 -130. This at least suggests that the
agency’ s reasons for terminating her were weak. Regarding whether those
responsible for the termination had a desire or motive to retaliate against the
appellant, the general tenor of the appellant’s pleadings is that she believed
agency management viewed her as a trouble maker who consisten tly complained
about the state of operations at CAVH CS, for which, at least to some degree, they
were responsible . W -1 AF, Tab 5 at 4. This again at least suggests that a motive
to retaliate existed . Although the OIG complaint itself does not appear to be
directed at any specific individual, we find that, after assessing these factors on
balance, the appellant has met the low burden at this stage of the proceedings to
nonfrivolously allege that her OIG complaint was a contributing factor in her
terminati on.
¶31 In sum, we find that the appellant nonfrivolously alleged that her four
protected disclosures were contributing factors in her June 2011 performance
appraisal and her termination and that her OIG complaint was a contributing
18
factor in her termination . Therefore, we find that the appellant has established
the Board’s jurisdiction over those claims.
ORDER
¶32 For the reasons discussed above, we remand this case to the Atlanta
Regional Office for adjudication on the merits in accordance with this Remand
Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCGREGOR_DEBORAH_J_AT_1221_15_0846_B_1_REMAND_ORDER_2038360.pdf | 2023-06-06 | null | AT-1221 | NP |
3,047 | https://www.mspb.gov/decisions/nonprecedential/BALDWIN_SHARAY_DE_0752_16_0316_I_2_FINAL_ORDER_2038457.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHARAY BALDWIN,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -16-0316 -I-2
DATE: June 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janice L. Jackson , Leavenworth, Kansas, for the appellant.
Eric L. Carter , Esquire, Fort Riley, Kansas, for the agency.
BEFORE
Cathy A. Harris , 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 regu lation 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 procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1 201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
reconsider the appellant’s equal employment opportunity (EEO) retaliation claim
in light of our recently issued decision in Pridgen v. Office of Management and
Budget , 2022 MSPB 31, we AFFIRM the initial decision.
¶2 Regarding the appellant’s EEO retaliation claim, it appears the pr otected
activity in question involved requests for reasonable accommodation and
complaints alleging disability discrimination. Refiled Appeal File (RAF), Tab 28
at 7. Thus, under the Rehabilita tion Act , the appellant must establish that the
protected activity was a “but -for” cause of the employer’s action. Pridgen ,
2022 MSPB 31, ¶¶ 46-47.
¶3 This change in the law does not require a different result in this case ,
however. On review, the appellant asserts that, contrary to the administrative
judge’s findings below, she engaged in EEO activity as recently January 27,
2016, approximately 3 months before the removal action. Petition for Review
File, Tab 1 at 13; RAF, Tab 33, Initial Decision at 18. However, assuming the
agency officials involved in the removal action were aware of the appellant’s
January 27, 2016 complaint, the timing alone is insufficient to establish that the
agency would not have removed her but for the protected activity , and the
appellant has provided no other evidence to support such a finding. See Pridgen ,
2022 MSPB 31, ¶ 48. Thus, we affir m the administrative judge’s finding, as
3
modified, to find that the appellant did not prove that her protected activity was a
“but-for” cause of her removal. Id.
¶4 We have considered the appellant’ s remaining arguments on review , but
find they provide no ba sis for reversing the initial decision.2
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R . § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
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
2 One of the agency’s charges in support of the removal action is that the appellant
failed to follow instructions. Although not argued by the appellant, we note that when
she filed this appeal, 5 U.S.C. § 2302 (b)(9)(D) made it a prohibited personnel practice
to take an action against an employee for “refusing to obey an order that would require
the individual to violate a law.” The U.S. Cou rt of Appeal s for the Federal Circuit
considered this provision and held that “ law” only included statutes, and not rules or
regulations. See Rainey v. Merit Systems Protection Board , 824 F.3d 1359 , 1364 -65
(Fed. Cir. 2016). However, on June 14, 2017, the President signed the Follow the Rules
Act into law. Pub. L. No. 115 -40, 131 Stat. 861 (2017). The Act amends section
2302(b)(9)(D) to provid e whistleblower protection for individuals who refuse to obey
an order that would require the violation of a law, rule, or regulation. Nevertheless, the
Board has determined that this expansion does not apply retroactively to cases, as here,
pending at th e time the Act was enacted. Fisher v. Department of the Interior ,
2023 MSPB 11, ¶ 19.
3 Since the issuance of the initial decisio n in this matter, the Board may have updated
the notice 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 the applicable time li mit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for 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 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.
5
(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, exclud ing
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your represent ative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S. C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
dispositi on of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of A ppeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BALDWIN_SHARAY_DE_0752_16_0316_I_2_FINAL_ORDER_2038457.pdf | 2023-06-06 | null | DE-0752 | NP |
3,048 | https://www.mspb.gov/decisions/nonprecedential/MARABLE_JEFFREY_P_AT_0752_16_0521_I_1_FINAL_ORDER_2037773.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY P. MARABLE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -16-0521 -I-1
DATE: June 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric F. Adams , Esquire, Huntsville, Alabama, for the appellant.
Tsopei Robinson , Esquire, Montgomery, 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 his involuntary disability retirement appeal for lack of jurisdiction .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of mater ial 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 id entified 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 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 At all time s relevant to this appeal, the appellant was employed by the
agency as a phlebotomist. Hearing Compact Disc (HCD) (testimony of the
appellant). During his employment with the agency, he suffered from Charcot
Marie Tooth disease, a disorder affecting the n erves in a patient’s hands and feet
causing an inability to perform fine motor tasks or walk or stand for long periods.
Initial Appeal File (IAF), Tab 4 at 6. On or around April 15, 2014, the appellant
met with his acting charge nurse to discuss his exce ssive use of sick leave. IAF,
Tab 8 at 4. During the meeting, the two discussed the possibility of the appellant
applying for disability retirement or requesting a reasonable accommodation. Id.
¶3 On July 24, 2014, the appellant filed for disability r etirement, IAF, Tab 14
at 56 -57, 62 -63, 68 -72, and on September 17, 2014, the appellant sought a
reasonable accommodation from the agency, id. at 74-75. To support his request
for a reasonable accommodation , the appellant submitted medical documentation
from his physician, who recommended that he take breaks every 2 hours during
the workday. Id. at 79 -80, 82 -83. It appears undisputed that the agency
implemented this recommendation. HCD (testimony of the reasonable
3
accommodation co ordinator); IAF, Tab 14 at 91. Subsequently , the appellant
submitted another letter from his physician dated April 10, 2015, recommending
that the appellant take a break every hour. IAF, Tab 14 at 88 -89. On April 15,
2015, the reasonable accommodation coordinator emailed the appe llant
acknowledging the new acc ommodation request and suggesting that he extend his
tour of duty (TOD) by 30 minutes so that he did not have to take leave for the
extra breaks. Id. at 91.
¶4 Before the appellant responded to the email , in a letter dated May 1, 2015,
the Office of Personnel Management ( OPM ) informed the agency’s human
resources specialist that it had approved the appellant’s application for disability
retirement. Id. at 97 -98. The human resources specialist spoke with the appellant
on or before May 12, 2015, to discuss the disability retirement and reasonable
accommodation. Id. at 100. Although the appellant expressed reservations about
proceeding with the disability retirement, it is undisputed that the human
resources specialist informed the appellant that he could choose to withdraw his
disability retirement application and continue to pursue his reasonable
accommodation request. Id.; HCD (testimony of the human resource s specialist
and the a ppellant). On May 15, 2015, the appellant informed the reasonable
accommodation coordinator that he was retiring, effective June 17, 2015, and
wanted to exhaust his sick leave. IAF, Tab 14 at 54, 104.
¶5 Approximately 1 year later, the appellant filed the instant Board appeal
asserting that his disability retirement was involuntary.2 IAF, Tab 1. He argued
that the agency did not provide him with an opportunity to decide whether to
continue with the reasonable accommodation process or to accept the disabi lity
retirement. IAF, Tab 4 at 3, Tab 8 at 4 -5. He also claimed that the agency failed
2 Shortly after the appellant retired, he filed a formal equal employment opport unity
complaint with the agency alleging that he was discriminated against based on his
disability when he was denied a reasonable accommodation and forced to accept
disability retirement. IAF, Tab 14 at 18 -19. On April 19, 2016, the agency issued a
final agency decision finding no discrimination. IAF, Tab 17 at 20 -26.
4
to explain to him that he had the option of withdrawing his application for
disability retirement. IAF, Tab 18 at 3. He asserted , moreover, that his alleged
involunt ary disability retirement was motivated by discrimination based upon his
disability. IAF, Tab 4 at 1, Tab 18 at 3.
¶6 The administrative judge found that the appellant made nonfrivolous
allegations that his disabi lity retirement was involuntary and held a he aring where
the appellant then was required to prove jurisdiction by preponderant evidence .
IAF, Tab 18 (citing Goodwin v. Department of Transportation , 106 M.S.P.R. 520 ,
¶ 12 (2007) ); Tab 19. On September 20, 2017, the administrative judge issued an
initial decision finding that the appellant failed to establish that his disability
retirement was involuntary and dismissing the appeal for lack of jurisdiction.
IAF, Tab 20, Initial Decision (ID) at 1, 11.
¶7 The appellant has filed a petition for review arguing that the administrative
judge failed to consider important evid ence and that the agency failed to follow
its own procedures regarding reasonable accommodations. Petition for Review
(PFR) File, Tab 1. The agency has filed a response, to which the appellant has
replied. PFR File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 A retirement is presumed to be voluntary and therefore out side the Board’s
jurisdiction. SanSoucie v. Department of Agriculture , 116 M.S.P.R. 149 , ¶ 14
(2011) . An involuntary retirement, however, is equivalent to a forced removal
within the Board’s jurisdiction under Title 5 of the U.S. Code, chapter 75.
Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1328 (Fed. Cir.
2006). Generally, an appellant who claims that a retirement was involuntary may
rebut the presumption of voluntariness in a variety of ways, for example, by
showing that the retirement was the result of misinformation or deception of the
agency, intolerable working conditions, or the unjustifie d threat of an adverse
action. SanSoucie , 116 M.S.P.R. 149 , ¶ 14 . The appellant has the burden of
5
proving Board jurisdiction by preponderant evidence . 5 C.F.R.
§ 1201.56 (b)(2)(i)(A).
¶9 However, the Board has recognized that involuntary disability retirement
cases are somewhat different from ordinary involuntary retirement appeals. In
most cases, an appellant who alleges that his disability retirement was involuntary
must show: (1) that he indicated to the agency that he wished to continue
working, but that his medical limitations required a modification of his work
conditions or duties, i. e., accommodation; (2) there was a reasonable
accommodation available during the period between the date on which the
appellant indicated to the agency that he had medical limitations but desired to
continue working and the date that he was separated would have allowed him to
continue working; and (3) the agency unjustifiably failed to offer that
accommodation. SanSoucie , 116 M.S.P.R. 149 , ¶ 15.
¶10 Here, the administrative judge found that the appellant established that he
desired to continue working. ID at 6. Nonetheless, he also found that the agency
accommodated the appellant’s request for a break every 2 hours pursuant to his
physician’s recommendations. ID at 7. Regarding the appellant’s second
accommodation request for a break every hour, the administrative judge noted
that the appellant provided no response to the agency’ s suggestion of expanding
his TOD by 30 minutes u ntil after learning of OPM’s approval of his disability
retirement application and acknowledged that , because the appellant elected to
exhaust his remaining sick leave and retire on disability, the agency stopped
processing his most recent accommodation re quest. ID at 8. Regarding other
accommodations, t he administrative judge found that the appellant failed to
establish that any restructuring or reassignment of his job was available, let alone
unjustifiably den ied by the agency. ID at 9 -10. Further, th e administrative judge
considered that the human resources specialist informed the appellant that he
could rescind his application for disability retirement. ID at 10; HCD (testimony
of the human resources specialist and the appellant) . Thus, the administrate judge
6
found that the appellant failed to establish that his retirement was involuntary.3
ID at 11. As discussed below, the appellant has provided no basis for disturbing
these findings on review .
The administrative judge properly considered the evidence.
¶11 On review, the appellant argues that the administrative judge ignored
several pieces of evidence. PFR File, Tab 1 at 4. Specifically, the appellant
argues that the administrative judge failed to consider his diary wherein he
detailed instances when he was not permitted to take any breaks and the letter
from the appellant’s physician recommending tha t the appellant take a break
every hour. Id. We find this argument to be meritless because the administrative
judge explicitly cons idered and discussed both pieces of evidence in the initial
decision . ID at 4-5, 8. Regarding the appellant’ s calendar entries, the
administrative judge observed that those records are from March and April 2014,
IAF, Tab 17 at 40 -43, which precedes the September 2014 reasonable
accommodation request , ID at 8 ; IAF, Tab 14 at 74-75. The administrative judge
noted that there are no calendar entries in the record for the time period between
the date the appellant requested a reasonable accommodation and the date he
retired. ID at 8. We agree with the administrative judge’s assessment of this
evidence and are not persuaded that it demonstrate s a failure to accommodate the
appellant’s disability.
¶12 As previously noted, the administrative judge also considered the letter
from the appellant’s physician recommending breaks every hour and discussed
the agency’s suggestion i n response to it. ID at 4, 8. He also highlighted the
human resources specialist’s testimony that , because the appellant proceeded with
his di sability retirement, the agency stopped processing his most recent
3 Because the administrative judge found that the appellant failed to prove that his
disability retirement was involuntary, he also concluded that the Board lacked
jurisdiction to adjudic ate the appellant’s discrimination claims. ID at 11 -12 (citing
Garcia , 437 F.3d at 1324 -25).
7
reasonable accommodation request. ID at 8 ; HCD (testimony of the human
resources specialist). We have reviewed the record, and we agree with the
administrative judge’s discussion of the l etter regarding the second reasonable
accommodation request.
¶13 Ultimately, we find that the appellant’s arguments regarding the
administrative judge’s weighing of the evidence amount to nothing more than a
disagreement with his conclusions, and we find no b asis to disturb these
findings.4 See, e.g., Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06
(1997) (finding no reason to dis turb 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) .
4 Following the close of the record on review, the appellant submitted a motion for
leave to file an additional pleading. PFR File, Tab 5. Pursuant to 5 C.F.R.
§ 1201.114 (k), once the record closes, no additional evidence or argument will be
accepted unless it is new and material, as defined under 5 C.F.R. § 1201.115 (d), and the
party submitting it shows that the evidence was not readily available before the record
closed. Here, the record closed on or around December 8, 2017, and the appellant
wishes to submit a Decem ber 22, 2017 Social Security Administration (SSA) Notice of
Disapproved Claim, which, he asserts, concluded, among other things, that although he
has medical limitations, he has “the capacity to perform the type of work as it is
normally performed in the national economy.” PFR File, Tab 5 at 2. Although this
document appears to be new, we find that it is not material. The document, as
described by the appellant, concerns his ability to perform work —not the availability or
denial of a reasonable accommoda tion, which are the primary considerations in an
involuntary disability retirement appeal. SanSoucie , 116 M.S.P.R. 149, ¶ 15; see
supra ¶ 9. Thus, the appellant has not sufficiently established that this new evidence
would affect the outcome of his appeal. See Cleaton v. Department of Justice ,
122 M.S.P.R. 296, ¶ 7 (2015) (explaining that the Board will not consider evidence
submitted for the first time on review absent a showing that the evidence is of sufficient
weight to warrant an outcome differe nt from that of the initial decision). Accordingly,
the motion for leave to file an additional pleading is denied. See 5 C.F.R.
§§ 1201.114 (k), 1201.115(d).
8
The appellant ’s allegation that the agency failed to follow its own policy
concerning reasonable accommodations does not provide a basis for review .
¶14 The appellant also argues on review that the agency failed to abide by its
own policy in handling reasonable accommodation requests. PFR File, Tab 1
at 2-9. Specifically, he argues that the agency violated the procedures set forth in
the Department of Ve terans Affairs (VA) Handbook 5975.1 and the Carl Vinson
VA Medical Center Reasonable Accommodation Policy. Id. at 2 -3, 6 -7.
Regarding the VA Handbook, we note that there is no copy of the handbook in the
record, nor has the appellant attempted to submit a copy into the record. Further,
although the appellant claims on review that he previously asserted that the
agency failed to follow its procedures , PFR File, Tab 4 at 2, we are unable to
locate those arguments in the record. Thus, it appears that the a ppellant raises
this argument for the first time on review. The Board has held that it generally
will not consider arguments raised for the first time on review absent a showing
that they are based on new and material evidence not previously available des pite
the party’s due diligence. Fleming v. Department of Labor , 97 M.S.P.R. 341 , ¶ 9
(2004) ; Banks v. Department of the Air For ce, 4 M.S.P.R. 268 , 271 (1980) . The
appellant has failed to make such a showing concerning the VA Handbook .
¶15 Regarding the Carl Vinson VA Medical Center Reasonable Accommodation
Policy, IAF, Tab 17 at 27 -38, the administrative judge found this document to be
irrelevant because the appellant did not work at the Carl Vinson VA Medical
Center in Du blin, Georgia, HCD (statements of the administrative judge) ; IAF,
Tab 6 at 8 . Therefore, the document was not accepted into the record . We have
reviewed the statements on the hearing disc concerning this ruling, and we agree
with the administrative judge that the policy i s not relevant to the instant case.
See 5 C.F.R. § 1201.41 (b); Brown v. U.S. Postal Service 81 M.S.P.R. 16, 21 n.4
(1999) (finding that ruling on the admissibility of evidence and its relevance is
within an administrative judge’s sound discretion). Therefore, any argument
relying on this policy attempting to show t hat the agency did not follow
9
reasonable accommodation procedure s does not show that the appellant’s
retirement was involuntary. Moreover, absen t an otherwise appealable action, the
Board lacks jurisdiction over the appellant’s claim that the agency commi tted
harmful error by violating this policy . See Penna v. U.S. Postal Service ,
118 M.S.P.R. 355 , ¶ 13 (2012) (finding that the Board lacked jurisdiction over the
appellant’s harmful error claim absent an appealable underlying action) .5
¶16 Based on the foregoing, we conclude that the appellant has not established
any basis for granting his petition for review, and we affirm the initial decision.
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 courts will rule regarding which cases fall within their
jurisdiction. If you wish to 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.
5 To the extent the appell ant argues that there is a 30 -day timeframe to process
accommodation requests, PFR File, Tab 1 at 3; IAF, Tab 17 at 39, the reasonable
accommodation coordinator testified that each request is handled differently and can
require different timeframes based o n the complexity of the disability and request.
HCD (testimony of the reasonable accommodation coordinator). Thus, it is not clear
that the 30 -day timeframe policy even applies here. To the extent the appellant is
arguing that the agency committed harmf ul procedural error in failing to follow this
policy, as noted above, the Board would lack jurisdiction over any such claim. See
Penna , 118 M.S.P.R. 355 , ¶ 13.
6 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.
10
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final B oard order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Pl ace, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appella nts,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://w ww.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept rep resentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
11
were affected by an action that is appealable to the Board and that such action
was based , in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you 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:
12
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited 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).
7 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.
13
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeal s
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circ uit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk o f the Board | MARABLE_JEFFREY_P_AT_0752_16_0521_I_1_FINAL_ORDER_2037773.pdf | 2023-06-05 | null | AT-0752 | NP |
3,049 | https://www.mspb.gov/decisions/nonprecedential/TAYLOR_GLENDA_M_AT_0841_16_0788_I_1_FINAL_ORDER_2037785.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GLENDA M. TAYLOR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
GERALD L. HIGGS , JR. ,
Intervenor.
DOCKET NUMBER
AT-0841 -16-0788 -I-1
DATE: June 5, 2023
THIS FINAL ORDER IS NONPRECEDENT IAL1
Glenda M. Taylor , Jacksonville, Florida, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1 A nonprec edential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follo w or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 appellant ha s filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her the decedent’s Federal Employee s’ Retirement System
(FERS) lump -sum death benefits. Generally, we grant petitions such as this one
only in the following circumst ances: 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 ru lings 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 i s available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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, whi ch is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The decedent was a Federal emplo yee enrolled in FERS before her death in
August 2015. Initial Appeal File ( IAF), Tab 4 at 26 , 28 . According to the
designation of beneficiary form that OPM received prior to her death , the
decedent designated one person to receive 100% of her lump -sum death benefits
and cancelled all prior designations. IAF, Tab 11 at 4. The d esignation form also
contained signatures from two witnesses certifying that the decedent had signed it
in their presence. Id.
¶3 After the decedent’s death and upon application by the designee , OPM
issued a lump -sum payment of the decedent’s death benefits to the designee on
3
October 16, 2015. IAF, Tab 4 at 19-24. The appellant, the decedent’s sister, also
applied to OPM for those benefits. Id. at 13 -18. In a July 26, 2016
reconsideration letter, OPM denied the appellant’s application based on the
deceden t’s designation of a different beneficiary . Id. at 6-7.
¶4 The appellant filed this appeal challenging OPM’s reconsideration decision,
asserting that she and her brother were the rightful beneficiaries. IAF, Tab 1 at 3,
5. She claimed that the designee fra udulently obtained those benefits . Id. She
further claimed that those she spoke with at OPM and “other government entities”
identified her and her brother as the beneficiaries of the decedent’s benefits ;
however, she did not produce a designation form in dicating as such. Id. at 3. The
decedent’s brother later joined the appeal as an intervenor.2 IAF, Tab 9 at 1.
¶5 The administrative judge identified the only issue on appeal as the
authenticity of the designation form , notified the appellant and the inter venor of
their burden of proof on that issue , and held the appellant’s requested hearing.3
IAF, Tab 1 at 2, Tab 9 at 2, Tab 16, Initial Decision (ID) at 2. In her testimony,
the appellant argued that to her , the designation form appeared to be “cut and
sliced” together; that the address listed for the dec edent on the form was in
Buffalo, New York , where she had not lived for several yea rs; and that the
decedent had been discharged from the hospital and “basically was dying when
she signed” the designation form. IAF, Tab 11 at 4 , Tab 15, Hearing Compact
Disc ( HCD ) at 3:30 -3:50, 5:40 -6:00, 8:00 -8:40 (testimony of the appellant ); ID
at 2-3. The intervenor testified that between November and December 2016, one
of the purported witnesses to the signing told h im via Facebook Instant
2 The administrative judge notified the designated beneficiary that she had a right to
participate in the appeal as an intervenor, IAF, Tab 5, but she did not respond to the
notice or file a request to interv ene in this matter.
3 The administrative judge held two telephonic hearings in this matter. ID at 2 n.1. The
first telephonic hearing was held on November 22, 2016. The recording from that
hearing was either destroyed or not preserved due to a technical malfunction. Id. A
second telephonic hearing was held on March 23, 2017. Id. Any reference to the
hearing in this order refers to the March 23, 2017 hearing. Id.
4
Messenger that she had not signed the form and that the address listed for her was
not her home address . HCD at 17:10-17:45 , 22:40 -24:00 (testimony of the
intervenor) ; ID at 3 . The intervenor further testified that he had sent ano ther
message to the witness prior to the hearing, but had no t received a response.
HCD at 24:00-24:3 5 (testimony of the intervenor) ; ID at 3. He did not produce
the written conversations because, according to him, he needed a subpoena to
obtain those mes sages. HCD at 19:25 -20:00 (testimony of the intervenor). He
also testified that the decedent’s ex -husband told him that , in his opinion, the
decedent’s signature on the designation form was forged. Id. at 10:50 -11:15 .
¶6 The administrative judge found the proffered evidence insufficient to
establish that the designation form was inauthentic , and thereby agreed with OPM
that it was required to pay the lump -sum death benefit s to the designated
beneficiary . ID at 4. She concluded that the designation form di d not appear to
be altered , as al leged by the appellant. Id. She also found that the intervenor’s
testimony as to wh at the witness said was hearsay and evaluated the probative
value of that evidence under the standard s set forth in Borninkhof v. Departme nt
of Justice , 5 M.S.P.R. 77, 87 (1981). ID at 4. She found that the hearsay
evidence was not sufficient to prove that the designation form w as inauthentic
because it was unsworn. Id. Accordingly, she found that the appellant and the
intervenor did not meet their burden of proving by preponderant evidence
entitlement to any portion of the benefits sought. Id.
¶7 The appellant has filed a brief petition for review, in which she does not
challenge the admi nistrative judge’s findings, raise any arguments, or present any
evidence, despite stating that s he has “more to add to the case. ” Petition for
Review (PFR) File, Tab 1 at 2. The agency has s ubmitted a response. PFR File,
Tab 4.
5
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 Under 5 U.S.C. § 8424 (d), if an employee dies and is not survived by an
individual entitled to a FERS annuity benefit , lump -sum death benefits must be
issued in order of precedence, first to the beneficiary designated by the employee
in a signed and witnessed writing received by OPM before the employee’s death.
5 U.S. C. §§ 8401 (28), 8424(d) ; 5 C.F.R. § § 843.20 3(a), 843.205 . The appellant
has identified no error in the administrative judge’s finding s that the appellant
failed to prove that the desig nation form was not authentic and that OPM was
required to pay out the death benefits as designated . ID at 4. Specifically, t he
appellant provided no evidence in support of her contention that the designatio n
form had been cut and pasted together. IAF, Tab 11 at 4. Moreover, even
crediting her claim that the decedent had not lived in Buffalo, New York , for a
number of years, this fact alone does not cast doubt on the authenticity of the
designation form . FERS provisions do not require the decedent to list her home
address as the return address on the designation form . See generally 5 U.S.C.
§ 8424 (d) (explaining that a designation must be signed and witnessed , and
received by OPM prior to the employee’s death) ; 5 C.F.R. § 843.205 (setting
forth these and other requirements for the designation) . The decedent’s signature
on the form appears to be consistent with her signature on other documents
contained in the record. IAF, Tab 4 at 10 , Tab 11 at 4; see Starr v. U.S. Postal
Service , 80 M.S.P.R. 59, ¶ 6 (1998) (explaining that identification of handwriting
is to be determined by the trier of fact, concluding that two signatures were
inconsistent with each other, and therefore finding that they were not signed by
the same person).
¶9 The administrative judge did not address the appellant’s testimony that the
decedent was terminally ill when she signed the form. HCD at 8:10 -8:37
(testimony of the appellant). Nonetheless, we have considered this testimony and
find no reason to disturb the initial decision . While the appellant appears to
suggest that the decedent’s medical condition when she designated her
6
beneficiary would have rendered her incompetent, she neither alleged nor
presented any evidence that the decedent lacked the requisite capacity to make a
valid election. See Stubblefield v. Office of Personnel Management , 60 M.S.P.R.
455, 459 (1994) (explaining that an individual is presumed to be competent when
making an annuity election, absent contrary evidence) ; Panter v. Department of
the Air Force , 22 M.S.P.R. 281 , 282 ( 1984) (finding that an adjudicatory error
that is not prejudicial to a party’ s substantive rights provides no basis for reversal
of an initial decision ).
¶10 As for the intervenor’s testimony that a purported witness to the designation
of beneficiary denied si gning the form, it is hearsay because it is an out -of-court
statement that the intervenor offered as proof of the matter asserted —that the
designation form was inauthentic.4 See Taylor v. U.S. Postal Service ,
75 M.S.P.R. 322 , 325 (1997) (citing the definition of hearsay set forth in Fed. R.
Evid. 801(c)). Hearsay is admissible in Board proceedings and may be accepted
as preponderant evide nce even without corroboration; however, it “must be
evaluated on a case -by-case basis to determine if [it] is inherently truthful and
more credible than the evidence offered against it. ” Social Security
Administration v. Long , 113 M.S.P.R. 190 , ¶¶ 26 -27 (2010) (quoting Sanders v.
U.S. Postal Service , 801 F.2d 1328 , 1331 (Fed. Cir. 1986)) , aff’d , 635 F.3d 526
(Fed. Cir. 2011). As properly identified by the admi nistrative judge, t he Board
evaluates the probative value of hearsay evidence under the factors identified in
Borninkhof , 5 M.S.P.R. at 87, including such factors as the availability of persons
with firsthand knowledge to testify at the hearing, whether th e out -of-court
statements were sworn, whether the declarants were disinterested, the consistency
of the out -of-court statements with other statements and evidence, whether there
4 The administrative judge did not make an express finding as to the intervenor’s
credib ility and whether he testified accurately to the substance of the conversation
between him and the witness. ID at 2 -3. However, we assume for the purposes of our
analysis that the administrative judge implicitly found the intervenor to be credible.
7
is corroboration or contradiction in the record, and the credibility of the
declarant. Id.
¶11 We agree with the administrative judge’s finding that the hearsay evidence
was not sufficiently probative . ID at 3-4. Weighing in the intervenor’s favor is
the fact that the witness was seemingly disinte rested because she was not a
benefic iary. IAF, Tab 11 at 4; see Bruhn v. Department of Agriculture ,
124 M.S.P.R. 1 , ¶ 14 (2016) (assigning significant probative value to the hearsay
evidence, a local police report, in part because of the drafter’s lack of interest in
the matter). However , we decline to disturb the administrative judge ’s finding
that this lack of interest was outweighed by other factors . ID at 4. T he statement
was unsworn ; the intervenor presented no evidence corroborating his claim that
the witness did not sign the form ; he presented no evidence of the witness’s
credibility; the witness also signed the decedent’s will a few days before signing
the des ignation , undermining her alleged statement that she did not sign the
designation of beneficiary ; and although the intervenor testified that he was
unable to reconnect with the witness , there is no indication that the witness was
unavailable to testify or that the intervenor made a sufficient effort to obtain a
signed statement, such as by subpoenaing the witness .5 IAF, Tab 4 at 11, Tab 11
at 4; HCD at 11:55 -13:20, 22:45 -24:40 (testimony of the intervenor); see Vojas v.
Office of Personnel Management , 115 M.S.P.R. 502 , ¶ 13 (2011) (finding that the
absence of corroborating evidence and the lack of evidence indicating that the
declara nts were unavailable to testify at the hearing or that the appellant had
attempted, but was unable, to obtain sworn statements weighed against assigning
5 The intervenor also believed that the designation form was forged because the
witnesses were listed as having the same address, even though they do not
live together. HCD at 11:55 -13:20 (testimony of the intervenor). The relevancy of
their living situation is unclear because the address listed for both witnesses seems to
be a business address for a Department of Veterans Affairs facility, not their
home addresses. IAF, Tab 11 at 4; see U.S. Department of Veterans Affairs,
Veterans Health Administration Off ice of Community Care , Denver, Colorado
https://www.va.gov/directory/guide/facility.asp?id=2015 (last visited June 5, 2023 ).
8
significant probative weight to the declarants ’ unsworn statements ); Krbec v.
Department of Transportat ion, 21 M.S.P.R. 239 , 242 (1984) ( observing that an
agency’s failure to subpoena witnesses with firsthand knowledge weighed against
assign ing significant probative value to the hearsay evidence) , aff’d , 770 F.2d 180
(Fed. Cir. 1985) (Table) . Therefore , we agree with the administrative judge’s
finding that this hearsay evidence is not sufficiently reliable or trustworthy to be
afforded signi ficant probative value.
¶12 Accordingly, we find that the administrative judge properly determined that
the designation form on file with OPM was authentic and that OPM was required
to pay the entirety of the decedent’s FERS death benefits to the designee as
provided therein . See Office of Personnel Management v. Richmond , 496 U.S.
414, 416, 424, 434 (1990) (finding that OPM may only distribut e funds from the
Civil Service Retirement and Disability Fund as permitted by Congress ,
regardless of equitable considerations ). We therefore deny the appellant’s
petition for review and affirm the initial decision.
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 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
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below t o decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule , an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the 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.
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 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
Protectio n Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation b y a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Stre et, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for r eview “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.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 revi ew of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. N o. 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
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 | TAYLOR_GLENDA_M_AT_0841_16_0788_I_1_FINAL_ORDER_2037785.pdf | 2023-06-05 | null | AT-0841 | NP |
3,050 | https://www.mspb.gov/decisions/nonprecedential/HICKS_BRENDA_D_AT_0752_16_0105_B_1_FINAL_ORDER_2037895.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRENDA D. HICKS,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
AT-0752 -16-0105 -B-1
DATE: June 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronnie Hubbard , Jackson, Mississippi, for the appellant.
Hyacinth M. Clarke and Joshua N. Rose , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a pe tition 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 de cision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
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 . Except as expressly MODIFIED by
this Final Order to make findings on the appellant ’s allegations of race
discrimination , we AFFIRM the initial decision.
BACKGROUND
The initial appeal
¶2 Effective October 29, 2015, the agency removed the appellant from her
Food Inspector position based on a single charge of conduct prejudicial to the
best interests of the service s upported by two specifications. MSPB Docket
No. AT-0752 -16-0105 -I-1, Initial Appeal File (IAF), Tab 7 at 14 -19. In
specification one, the agency alleged that, on April 30, 20 14, after the a ppellant ’s
supervisor informed her that he had denied her leave reques t, the appellant called
her supervisor over to her vehicle at the end of her shift, pulled what appeared to
be a gun from under the seat of her car, and showed it to him. Id. at 15, 25. In
specification two, the agency alleged that, on May 6, 2014, the appellant came to
the door of an a gency office, asked for her supervisor , and then pointed her finger
at him and made a noise as if she were firing a gun. Id.
¶3 The appellan t filed a Board appeal challenging her removal and raised
affirmative defenses of a denial of due process in connection with an agency
investigation of the charge, harmful procedural error, and discrimination based on
race. IAF, Tab 1 at 2, Tab 13 at 4, Tab 15 at 7 -8, Tab 20 at 2 -7. After holding
3
the requested hearing, the administrative judge issued an initial decision reversing
the appellant ’s removal on due process grounds not raised by the appellant,
without addressing w hether the agency proved the charge. IAF, Tab 22, Initial
Decision (ID) . The administrative judge based this conclusion on the deciding
official ’s testimony that he considered the appellant ’s misconduct as “threats,” an
offense different from and more se rious than the charged offense of conduct
prejudicial to the best int erests of the service. ID at 4. The administrative judge
further found that the deciding official ’s consideration of the appellant ’s conduct
as threats constituted an ex parte communica tion that introduced new and material
information to which the appellant was not afforded an o pportunity to respond.
ID a t 5-7. The administrative judge declined to address the appellant ’s
affirmative defense of harmful procedural error, having reversed her removal on
due process grounds, but found that she failed to prove her affirmative defense of
racial discrim ination . ID at 8.
¶4 The agency filed a petition for review of the init ial decision in which it
argued that the administrative judge erred in fi nding that it violated the
appel lant’s due process rights . Hicks v. Department of Agriculture , MSPB
Docket No. AT -0752 -16-0105 -I-1, Petition for Review File, Tab 1. The Board
agreed with the agency . Hicks v. Department of Agriculture , MSPB Docket
No. AT-0752 -16-0105 -I-1, Remand Order, ¶¶ 10-16 (Sep t. 22, 2016) (Remand
Order) . The Board found that, although the agency did not charge the appellant
with making a threat, the penalty section of the proposal notice quoted agency
policies regarding firearms and wor kplace violence, which prohibit threats, and
addressed the same type of alleged misconduct that formed the basis for t he
appellant ’s removal. Id., ¶ 14. It found further that the proposal notice did , or
should have , put the appellant on notice tha t the agency viewed her alleged
misconduct as analogous to a threat. Id., ¶¶ 14-15. The Board vacated the initial
decision and remanded for the administrative judge to issue a new initial decision
that made further findings regarding the charge, the appe llant ’s affirmative
4
defenses, n exus, and the penalty. Id., ¶ 17. The Board noted that the
administrative judge may adopt his original finding regarding the appellant ’s
affirmative defense of race discrimination . Id.
The remand appeal
¶5 On re mand, the administrative judge found that the Board reinterpreted the
charge of conduct prejudicial to the best interest of the service as making a threat,
and he found that the agency met its burden to prove that the appellant ’s
misconduct in specifications one and two were thre ats. Hicks v. Department of
Agriculture , MSPB Docket No. AT -0752 -16-0105 -B-1, Remand File, Tab 6 ,
Remand Initial Decision ( RID) at 7-10. As to specification one , he found that the
appellant ’s supervisor testified credibly that the appel lant showed him a gun and
the appellant ’s testimony that she showed him a bottle of liquor was not
believable . RID at 6. As to specification two, the administrative judge credited
the version of events based on the testimony of several witness es to the incident
over the ap pellant ’s version of events. RID at 8-9. He also found that the agency
established nexus and that the removal penalty was reasonable. RID at 10 -11.
Additionally, he readopted his finding that the appellant failed to prove he r
affirmative defense of race discrimination, and found that she failed to prove her
affirmati ve defense of harmful error. RID at 12.
¶6 In her petition for review,2 the appellant argues that the agency did not
provide her adequate notice that it viewed the charge as involving a threat , that
the administrative judge erred in finding her supervisor credible, and that the
more than 1 -year delay between the charged misconduct and the initiation of the
agency action harmed her ability to defend against the ac tion. Hicks v.
2 Attached to the appellant ’s peti tion are a number of documents. Hicks v. Department
of Agriculture , MSPB Docket No. AT -0752 -16-0105 -B-1, Remand Petition for Review
File, Tab 1 at 9 -18, 23 -26. The parties submitted all of these documents below. IAF,
Tab 8 at 25-26; Tab 11 at 12 -16, 19-21; Tab 17 at 7; Tab 18 at 7. Because these
documents are alread y part of the record, they do not constitute new evidence. See
Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980).
5
Department of Agriculture , MSPB Docket No. AT -0752 -16-0105 -B-1, Remand
Petition for Review (RPFR) File, Tab 1 at 5-8, 21. The appellant also argues that
the administrative judge erred in applying the legal criteria for determining
whether there had been a threat , that the real reason for the agency action was her
tardiness , that it was legal under Mississippi law to have a weapon in her vehicle,
and that the administrative judge erred by not considering a charge set forth in the
proposal no tice that the deciding official did not sustain.3 Id. at 4, 7 -8, 19 -21.
DISCUSSION OF ARGUME NTS ON REVIEW
The law of the case doctrine precludes Board review of the appellant’s argument
that she was not on notice that the agency charge was analogous to a charge of
making a threat.
¶7 As noted, in its remand decision, the Board found that the proposal notice
did, or should have, put the appellant on notice that the agency viewed the alleged
misconduct as analogous to a threat. Remand Order , ¶ 15. Under the law of the
case doctrine, a tribunal generally will not reconsider issues that already have
been decided in an appeal unless there is new and material evidence adduced at a
subsequent trial, controlling authority has made a contrary deci sion of law, or the
prior decision was clearly erroneous and wou ld work a manifest injustice. Jonson
v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 454, ¶ 11 n .8 (2015)
3 The appellant timely filed her petition for review on October 28, 2016. RPFR File,
Tab 1. The Clerk of the Board informed the agency that it could file a response on or
before November 22, 2016. RPFR File , Tab 2. The agency fil ed its response on
November 28, 2016. RPFR File , Tab 5. With it s response, the agency filed a r equest to
waive the filing deadline. Id. at 18. Th e agency declared that, on November 17, 2016,
it placed the correctly addressed package containing the response in a Federal Express
pick up box, and, on November 28, 2016, learned from Federal Express that it failed to
deliver the package containing the r esponse. Id. at 20. Attached to the request is a
copy of a Fed eral Express label addressed to the Board and dated November 17, 2016.
Id. at 21. Additional support for the agenc y’s assertion that it sent the r espon se to the
Board on November 17, 2016 , is provided by the appellant, who filed a reply to th e
agency’s response on November 22, 2016, prior to the Board’s receipt of the response.
RPFR File, Tab 3. Under these circumstances, we accept the agency’s response to the
petition for review.
6
(quoting Messe nger v. Anderson , 225 U.S. 436 , 444 (1912) ). The doctrine
“merely expresses the practice of courts generally to refuse to reopen what has
been decided, [and is] not a limit to their power.” Jonson , 122 M.S.P.R. 454,
¶ 11 n. 8; see Mendenhall v. Barber -Greene Co., 26 F.3d 1573 , 1582 -83 (Fed. Cir.
1994) (observing that a c ourt’s decision to apply the law of the case doctrine is
within its discretion). The purpose of the doctrine is to ensure consistency,
thereby avoiding the expense and vexation of multiple lawsuits, conserving the
Board ’s resources, and fostering reliance on the Board by avoiding inconsistent
decisions. See Hoover v. Department of the Navy , 57 M.S.P.R. 545 , 552 (1993)
(setting forth this rationale in the context of litigation in general).
¶8 On review , the appellant argues that she had no knowledge that the agency
viewed the charge as analogous to a threat charge. RPFR File, Tab 1 at 5-6.
However, she has not shown that new an d material evidence was present at the
remand hearing. Nor has she shown that controlling authority has made a
contrary decision of law or that the Board ’s decision that the penalty section of
the proposal notice quoted agency policies regarding f irearms and wor kplace
violence, which prohibit threats, see Remand Order, ¶¶ 14-15, was clearly
erroneous and wou ld work a manifest injustice. We find that the appellant has
not shown error in our prior decision , and therefore we a pply the law of the case
doctrine to our finding that the appellant knew or should have known that the
agency viewed the alleged misconduct as a threat . Under the circumstances of
this case, the law of the case doctrine preclude s relitigating whether the proposal
letter gave the appellant adequate notice that the agency considered the agency
charge as analogous to a charge of making a threat.
The appellant failed to show error in the administrative judge ’s credibility
determination.
¶9 In her petition for review, the appellant reiterates the argument she made to
the administrative judge that her supervisor stated in his workplace violence
statement that he was not sure he had seen a gun. RPFR File, Tab 1 at 7. In
7
making his credibility determination, t he administrative judge note d that the
supervisor and the appellant were the only witnesses to the acts alleged in
specification 1 . RID at 4. Thus, the administrative judge found that his
determination as to whether the agency proved that specification turned on which
version of ev ents, that of the supervisor or that of the appellant, he found more
credible. Id. Applying the criteria of Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987) , to his assessment of the credibility of the two
witnesses, he found that the supervisor ’s statement that the appellant slid out into
view what appeared to be a pistol in a holster was more credible than the
appellant ’s statement that she pulled a small bottle of whiskey or vodka in a paper
bag from u nder her car seat. RID at 4-6. In finding the supervisor more credible
than the appellant, the administrative judge did not distinguish between the
demeanor of the supervi sor and the appellant, finding that demeanor di d not favor
one or the other. RID at 6.
¶10 The Board must afford special deference to an administrative judge’s
credibility findings when he or she relies expressly or by necessary implication
on witness demea nor. Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 ,
1372 (Fed. Cir. 2016). Likewise, the Board is not free to overturn an
administr ative judge’s credibility findings merely because it disagrees with those
findings. Haebe v. Department of Justice , 288 F.3d 1288 , 1299 (Fed. C ir. 2002).
In the remand initial decision, the administra tive judge considered the
supervisor ’s workplace violence statement that he was not sure he had seen a gun ,
and found that it was a prior inconsistent statement that weig hed in the
appellant ’s favor. RID at 5. He fou nd that the appellant ’s testimony that she
harbored no ill feelings toward her supervisor is contradicted by evidence
reflecting that she was “written up ” by him for absence without leave (AWOL)
mere hours before their encounter near her car. Id. He also found that a
coworker testified t hat the appellant was upset for having been “written up” by
her supervisor earlier in the day on which she allegedly showed him the gun . Id.
8
Further, the administ rative judge found that the sup ervisor testified that when he
saw the gun, he told the appellant, “If you ’re going to shoo t me, shoot me
between the eyes. ” Id. In addition, t he admi nistrative judge found that , a we ek
before the incident with her supervisor , the appellant told a coworker that she
carried a gun in her car. RID at 6. Finally, t he administrative judge found it
inherently improbable , as the appellant asserted, that she would offer her
supervisor a gift of a bottle of liquor within hours after he “wrote her up” up fo r
being AWOL. Id. Under the circumstances, we find no reason to reweigh the
evidence , and we defer to the administrative judge ’s findings here on credibility
issues. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997)
(finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same); see also Haebe , 288 F.3d at 1302 .
The appellant did not show that she was harmed by the agency ’s delay in bringing
the removal action .
¶11 The equitable defense of laches bars an action when an unreasonabl e or
unexcused delay in bringing the action has prejudiced the party against whom the
action is taken. Pueschel v. Department of Transportation , 113 M.S.P.R. 422 , ¶ 6
(2010); Social Security Administration v. Carr , 78 M.S.P.R. 313 , 330 (1998),
aff’d , 185 F.3d 1318 (Fed. Cir. 1999); Talakowski v. Department of the Army ,
50 M.S.P.R. 18 , 22 (1991). The party asserting laches must prove both
unreasonable delay and prejudice. Pueschel , 113 M.S.P.R. 422 , ¶ 6; Carr ,
78 M.S.P.R. at 330. The mere fact that time has elapsed from the date a cause of
action first accrued is not sufficient to bar an agency disciplinary action as such a
delay does not e liminate the prejudice prong of the laches test. Cornetta v.
United States , 851 F.2d 1372 , 1378 (Fed. Cir. 1988) (en banc). As to prejudice,
there are two types that may stem from the delay in initiating an action. Id. First,
“defense” prejudice may arise by reason of a defendant’ s inability to present a
9
full and fair defense on the merits due to the loss of records, the death of a
witness, or the unreliability of memories of long past events , thereby undermining
the Board’ s ability to judge the facts. Id. The second type, economic prejudice,
may arise where a party and possibly others will suffer the loss of monetary
investments or incur dam ages , which likely would have been prevented had the
action been initiated earlier. Id.
¶12 Here , the acts of misconduct that formed the basis for the agency action
occurred in April and May 2014, and the agency proposed th e appellant’s removal
on August 10, 2015, and effected the removal on October 29, 2015. IAF, Tab 7
at 15-19, 24 -30. Thus, approximately 18 months passed from the time of the
conduct to the disciplinary action. The appellant asserts that because of the
delay , some of her coworkers who may have been able to testify in her defense
had transferred or received promotions to other work areas. RPFR File, Tab 1
at 21. She also asserts that those coworkers who remained had probably forgotten
the specifics of what might have transpired. Id.
¶13 The Board has held that a 3 -year period between the misconduct that formed
the basis for a disciplinary action and the initiation of the action was not
unreasonable. Carr , 78 M.S.P.R. at 330 -31 (finding that it was not unreasonable
for the agency to incl ude in its disciplinary action misconduct that occurred more
than 3 years earlier); Special Counsel v. Santella , 65 M.S.P.R. 452 , 465-66 (1994)
(finding that the Office of Special Counsel’s 3 -year delay in bringing a
disciplinary action after it learned of possible prohibited personnel practices was
not unreasonable). Thus, the appellant has not shown that the delay was
unreasonable. Furthermore, the appellant did not identify any particular
individual whom she was unable to locate or contact to testify in her defense
because of the delay, and she did not show that anyone who testified was unable
to recall the specifics of the events that formed the basis of the agency’s charge
against her. Thus, we find that the appellant has not shown that her ability to
defend against the charge was prejudiced in any manner by the agency’s delay .
10
Therefore, we find that the appellant has not shown that this action is barred by
the doctrine of laches .
The appellant’s other arguments on review do not establish error in the initial
decision .
¶14 On review, the appellant asserts that the administrative judge erred in
applying the test to determine whether an employee has made a threat stated in
Metz v. Department of the Treasury , 780 F.2d 1001 , 100 2 (Fed. Cir. 1986). RPFR
File, Tab 1 at 19. She contends that the administrative judge failed to consider
that her supervisor said that the appellant never made any threatening statements.
Id. Under Metz , in deciding whether a statement constitute s a threat, the Board is
to apply the reasonable person criterion, cons idering the listeners’ reaction and
apprehension, the wording of the statement, the speaker’s intent, and the
attendant circumstances. Metz , 780 F.2d at 1002.
¶15 Here, the administrative judge considered whether the appellant made an
actionable threat by showing a gun to her supervisor , and subsequently making a
gun shape with her hand, pointing her hand at her supervisor, and making a
shooting noise, not by uttering threatening words. Under the circumstances, th e
supervisor’s statement that the appellant did not utter threatening words is
immaterial to the administrative judge’s finding that , under all the attendant
circumstances, the appellant ’s actions constituted a threat.
¶16 The appellant also asserts that the agency was really removing her because
of her tardiness . RPFR File, Tab 1 at 21. The appellant does not point to anything
to support this assertion and the notice of proposed removal and the decision
notice make no mention of her tardiness. In any event, the Board i s required to
review the agency’ s decision on an adverse action solely on the grounds invoked
by the agency; the Board may not substitute what it considers to be a more
adequate or proper basis. See Fargnoli v. Department of Commerce ,
123 M.S.P.R. 330, ¶ 7 (2016). Thus, we find the appellant’s claim that the
11
agency removed her based on her leave record unavailing. IAF, Tab 7 at 15-19,
24-30.
¶17 The appellant also argues on review that Mississippi state law permits the
open carrying of a handgun in a motor vehicle without a permit or license. RPFR
File, Tab 1 at 7 -8, 19 -20. The appellant has not explained how t he fact that she
could have a gun in her vehicle under state law would prevent the agency from
charging her with conduct prejudicial to the best interest of the service by, among
other things, displaying the gun to her supervisor only a few hours after he wrote
her up for being AWOL .
¶18 Next , the appellant asserts that the administrative judge erred by not
considering a charge set forth in the proposal notice that the deciding official did
not su stain. Id. at 4-5. The appellant does not cite any legal authority to support
her argument that the administrative judge must consider a charge mentioned in
the proposal notice when it is not sus tained by the deciding official, and w e are
unaware of any such requirement.
The appellant failed to prove her affirmative defens e of racial discrimination .
¶19 Finally, although the administrative judge adopted his original finding that
the appellant failed to prove race discrimination, he did not res tate those findings
in the remand decision. Despite the fact that the appellant did n ot disagree with
those findings in her petition for review, b ecause the Board vacated the initial
decision in which the administrative judge made the finding that the appellant
failed to meet her burden to prove race discrimination, we make findings on tha t
affirmative defense.
¶20 Title VII of the Civil Rights Act of 1964 , as amended, requires that
personnel actions “shall be made free from any discrimination based on race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e -16(a). An appellant
may prove an affirmative defense under this subsection by showing that
prohibited discrimi nation or reprisal was a motivatin g factor in the contested
action, i.e. that discrimination or reprisal played “any part” in the agency ’s action
12
or decision. Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 21,
30. Nevertheless, while an appellant who proves motivating factor and nothing
more may be entitled to injunctive or other forward -looking relief, in order to
obtain the full measure of relief available under the statute, including status
quo ante relief, compensatory damages, or other forms of relief related to the end
result of an employment decision, he must show that discrimination or reprisal
was a but -for cause of the employment outcome. Id., ¶ 22.
¶21 At the hearing , the appellant proffered no evidence of discrimination based
on race . She did not demonstrate in any way that she was treated more harshly
than an indivi dual who was not a member of her protect ed group , nor did she
provide any other kind of evidence indicating that the agency’s action was based
on discriminatory intent. See Godesky v. Department of Health and Human
Services , 101 M.S.P.R. 280 , 285 (2006) . Therefore, we find that the appellant has
not met her burden of proving that the prohibited consi deration of race
discrimination was a motivating factor in the contested personnel action and thus
failed to establish her affirmative defense of race discrimination . Pridgen ,
2022 MSPB 31 , ¶¶ 20 -22.
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
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
4 Since t he issuance of the initial decision in this matter, the Board may have updated
the notice 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
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
14
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(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,
and your representative receives this decision before you do, then you must file
15
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
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may 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
5 The original stat utory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently all ows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review A ct is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono 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/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HICKS_BRENDA_D_AT_0752_16_0105_B_1_FINAL_ORDER_2037895.pdf | 2023-06-05 | null | AT-0752 | NP |
3,051 | https://www.mspb.gov/decisions/nonprecedential/PEARSON_LEON_NY_0752_17_0050_I_1_FINAL_ORDER_2037962.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEON PEARSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-0752 -17-0050 -I-1
DATE: June 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leon Pearson , New York , New York, pro se.
Managing Counsel , New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged constructive suspension appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 due
diligence, was not availabl e when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On December 1, 2016, t he appellant, a Mail Handler, filed an appeal in
which he challenged the agency’s ac tion placing him in an emergency off -duty
status for more than 14 days , effective August 3, 2016 , based on its determination
that he could be injurious to himself or others. Init ial Appeal File (IAF), Tab 1
at 3, 14. The appellant indicated that he was e ntitled to veterans’ preference , id.
at 2, and submitted evidence showing that he served on active duty with the Army
from November 6, 1980 , to November 5, 1984 , and received an honorable
discharge, id. at 20-21. He requested a hearing. Id. at 2. In ack nowledging the
appeal, the administrative judge noted that, because the appellant is a Postal
Service employee, the Board might not have jurisdiction over his appeal, and
directed him to file evidence and argument on that issue . 39 U.S.C. § 1005 (a);
5 U.S.C. § 2108 ; IAF, Tab 2. The admin istrative judge also issued an order to
show c ause, setting forth the require ments for the appellant to e stablish that he is
a preference eligible, 5 U.S.C. § 2108 (3)(A) -(H), and ordering him to address the
matter by filing evidence and argument , IAF, Tab 3 , but t he appella nt did not
respond.
3
¶3 In an initial decision based on t he written record ,2 the administrative judge
dismissed the appeal for lack of jurisdiction.3 IAF, Tab 4, Initial Decision (ID)
at 1, 4. He found it undisputed that the appellant held a craft position; that is, not
a management or supervisory position , and that therefore he must establish that
he is a preference eligible to appeal to the Board. 39 U.S.C. § 1005 (a); 5 U.S.C.
§ 2108 . The administrative judge found, however, that, notwithstanding the
appellant’s 4 years of military service from 1980 to 1984 , he did not claim that he
served during a war, in a ca mpaign or expedition for which a campaign badge has
been authorized, and that, therefore, he failed to raise a nonfrivolous allegation
that he is a preference eligible. ID at 4.
¶4 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, and a supplement thereto, PFR File, Tab 3 .
ANALYSIS
¶5 A nonmanagement or nonsupervisory Postal employee or an employee who
is not engaged in certain personnel work who seeks to appeal an adverse action to
the Board must be a preference -eligible vete ran. 5 U.S.C. § 7511 (a)(1)(B);
39 U.S.C. § 1005 (a)(4)(A). Pursuant to 5 U.S.C. § 2108 (1), (3), t he definition of
preference eligibility is limited to those veterans who:
(A) served on active duty in the armed forces during a war, in a
campaign or expedition for which a campaign badge has been
authorized, or during the period beginnin g April 28, 1952, and
ending July 1, 1955 . . . .4
2 Finding that the appellant failed to establish a factual dispute bearing on the issue of
jurisdiction, the administrative judge did not convene the requested hearing. IAF,
Tab 4, Initial Decision (ID) at 1.
3 Based on this disposition, the administrative judge did not address the timeliness of
the appeal. ID at 4 n.2.
4 Subparts (B), (C), and (D) refer to veterans who served on active duty during other
specific timeframes which do not include the 1980s and therefore do not apply to this
case.
4
¶6 The appellant does not allege that he served during a war or during the
period beginning April 28, 1952 , and ending July 1, 1955. Rather, he claims on
review that he “served during the Falkland War for which a campaign badge was
authorized.”5 PFR File, Tab 1 at 1. Not only has the appellant failed to support
this claim, but the “Falkland War” is not among the U.S. Campaign s and
Expedition s of the Armed Forces W hich Qualify for Veterans’ P reference as set
forth in the Office of Personnel Management’s (OPM’s) Veterans ’ Guide
Appendix A . See U.S. Office of Personnel Management, Vet Guide for HR
Professionals , https://www.opm.gov/policy -data-oversight/veterans -services/vet -
guide -for-hr-professionals/#9 . The appellant also has submitte d on review a copy
of a Postal Service Form 50 generated during his tenure with the agency,6 but it
indicates that he does n ot have veterans’ preference.7 PFR File, Tab 1 at 6.
¶7 In the supplement to his petition, the appellant has submitted a copy of his
DD-214, Cer tificate of Release or Discharge from Active Duty.8 PFR File, Tab 3
5 The appellant did not raise this claim below, but we have considered it because it
relates to the dispositive jurisdictional issue in this case.
6 Although the a ppellant did not submit this document during the proceeding below, we
have considered it because it bears on the jurisdictional issue in this case.
7 With his petition, the appellant has submitted a number of other documents, including
a Confidential Witne ss Affidavit. PFR File, Tab 1 at 34-37. Although th is document
appears to be new in that it is dated after the close of the record below, it has no bearing
on the dispositive jurisdictional issue of this case and therefore we have not considered
it. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ( finding that the
Board will generally not grant a petition for review based on new evidenc e absent a
showing that it is of sufficient weight to warrant an outcome different from that of the
initial decision) . As to the other documents the appellant has submitted on revie w,
including one that appear s to relate to his efforts to secure other employment, PFR File,
Tab 1 at 40, one from a n unidentified website, id. at 45, and one from the Department
of Veterans Affairs regarding his coverage under the Affor dable Care Act, id. at 46,
they are neither new nor material , Avansino v. U.S. Postal Ser vice, 3 M.S.P.R. 211 , 214
(1980); Russo , 3 M.S.P.R. at 349 , and we have not considered them .
8 We have considered this document because it appears that the appellant did not
receive it until after the record closed below and he did submit evidence showing that
he was attempting to secure a copy. PFR File, Tab 1 at 3 -5. Moreover, it bears on the
dispositive jurisdictional issue of this case.
5
at 3. The document further supports the appellant’s claim that he served on active
duty from November 6, 1980 , to November 5, 1984 , but it does no t establish that
he ever received a campaign badge or served in a campaign or expedition for
which a cam paign badge has been authorized. Id.; see Perez v. Merit Systems
Protection Board , 85 F.3d 591 , 594 (Fed . Cir. 1996) ( observing that a military
record must be afforded controlling weight). Although the appellant’s DD -214
shows that he was awarded an “Overseas Service Ribbon, Army Service Ribbon,
[and] Marksman (M -16 Rifle),” PFR File, Tab 3 at 3, only certain badges qualify
as campaign badges as designated by OPM’s Veterans’ Guide , and these are not
among them , see, e.g. , Dabney v. Merit Systems Protection Board , 566 F. App’x
920 (Fed. Cir. 2014) .9
¶8 Because the appellant has not established that he is a preference eligible,
the Board does not have jurisdiction over the appeal of his alleged constructive
suspension and the administrative judge properly dismissed it on that basis.
NOTICE OF APPEAL RIGHTS10
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement 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 The Board may rely on unpublished Federal Circuit decisions if , as here, it finds the
court’s reasoning persuasive. Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513 , ¶ 12
(2011).
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.
6
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possibl e choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issu ance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on 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:
8
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.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)( B).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, sign ed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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/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 | PEARSON_LEON_NY_0752_17_0050_I_1_FINAL_ORDER_2037962.pdf | 2023-06-05 | null | NY-0752 | NP |
3,052 | https://www.mspb.gov/decisions/nonprecedential/PEARSON_LEON_NY_0752_17_0051_I_1_FINAL_ORDER_2037975.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEON PEARSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-0752 -17-0051 -I-1
DATE: June 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leon Pearson , New York , New York, pro se.
Anthony V. Merlino , 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 re view of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous a pplication 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 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).
BACKGROUND
¶2 On December 1, 2016, t he appellan t, a Mail Handler, filed an appeal in
which he challenged the agency’s action removing him from his position ,
effective December 9 , 2016 , based on the char ge of Misconduct (Improper Use o f
Postal Identification) . Initial Appeal File (IAF), Tab 1 at 3, 15-18. The appellant
indicated that he was entitled to veterans’ preference , id. at 2, and submitted
evidence showing that he served on active duty with the Army from November 6,
1980 , to November 5, 1984 , and received an honorable discharge, id. at 20-21.
He requested a hearing. Id. at 2. In acknowledging the appeal, the administrative
judge noted that, because the appellant is a Postal Service employee, the Board
might not have jurisdiction over his appeal, and directed him to file evidence and
argument on that issue . 39 U.S.C. § 1005 (a); 5 U.S.C. § 2108 ; IAF, Tab 2. The
administrative judge also issued an order to show c ause, setting f orth the
requirements for the appellant to e stablish that he is a preference eligible,
5 U.S.C. § 2108 (3)(A) -(H), and ordering him to address the matter by filing
evidence and argument , IAF, Tab 3 , but t he appellant did not respond. The
agency moved that the appeal be dismissed for lack of jurisdiction on the basis
3
that the appellant was not a preference -eligible Postal Service employee entitled
to appeal his removal to the Board. IAF, Tab 5.
¶3 In an initial decision based on t he written record ,2 the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID)
at 1, 4. He found it undisputed that the a ppellant held a craft position; that is, not
a management or supervisory position , and that therefore he must establish that
he is a preference eligible to appeal to the Board. 39 U.S.C. § 1005 (a); 5 U.S.C.
§ 2108 . The administrative judge found, however, that, notwithstanding the
appellant’s 4 years of military service from 1980 to 1984 , he did not claim that he
served during a war, in a ca mpaign or expedition for which a campaign badge has
been authorized, and that, therefore, he failed to raise a nonfrivolous allegation
that he is a preference eligible. ID at 4.
¶4 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, and a supplement thereto, PFR File, Tab 3 .
ANALYSIS
¶5 A nonmanagement or nonsupervisory Postal employee or an employee who
is not engaged in certain personnel work who seeks to appeal an adverse action to
the Board must be a preference -eligible vete ran. 5 U.S.C. § 7511 (a)(1)(B);
39 U.S.C. § 1005 (a)(4)(A). Pursuant to 5 U.S.C. § 2108 (1), (3), t he definition of
preference eligibility is limited to those veterans who:
(A) served on active duty in the armed forces during a war, in a
campaign or expedition for which a campaign badge has been
authorized, or during the period beginnin g April 28, 1952, and
ending July 1, 1955 . . . .3
2 Finding that the appellant failed to establish a factual dispute bearing on the issue of
jurisdiction, the administrative judge did not convene the requested heari ng. IAF,
Tab 6, Initial Decision at 1.
3 Subparts (B), (C), and (D) refer to veterans who served on active duty during other
specific timeframes which do not include the 1980s and therefore do not apply to this
case.
4
¶6 The appellant does not allege that he served during a war or during the
period beginning April 28, 1952 , and ending July 1, 1955. Rather, he claims on
review that he “served during the Falkland War for which a campaign badge was
authorized.”4 PFR File, Tab 1 at 1. Not only has the appellant failed to support
this claim, but the “Falkland War” is not among the U.S. Campaign s and
Expedition s of the Armed Forces W hich Qualify for Veterans’ P reference as set
forth in the Office of Personnel Management’s (OPM’s) Veterans ’ Guide
Appendix A . See U.S. Office of Personnel Management, Vet Guide for HR
Professionals , https://www.opm.gov/policy -data-oversight/veterans -services/vet -
guide -for-hr-professionals/#9 . The appellant also has submitte d on review a copy
of a Postal Service Form 50 generated during his tenure with the agency,5 but it
indicates that he does n ot have veterans’ preference.6 PFR File, Tab 1 at 2 .
¶7 In the supplement to his petition, the appellant has submitted a copy of his
DD-214, Cer tificate of Release or Discharge from Active Duty.7 PFR File, Tab 3
4 The appellant did not raise this claim below, but we have considered it because it
relates to the dispositive jurisdictional issue in this case.
5 Although the appellant did not submit this document during the proceeding below, we
have considered it because it bears on the jurisdictional issue in this case.
6 With his petit ion, the appellant has submitted a number of documents, including a
Confidential Witness Affidavit . PFR File, Tab 1 at 34-37. Although the document
appears to be new in that it is dated after the close of the record below, it has no bearing
on the dispos itive jurisdictional issue of this case and therefore we have not considered
it. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ( findi ng 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) . As to the other documents the appellant has submitt ed on review ,
including one that appear s to relate to his efforts to secure other employment, PFR File,
Tab 1 at 40, one from a n unidentified website, id. at 45, and one from the Department
of Veterans Affairs regarding his coverage under the Affor dable Care Act, id. at 46,
they are neither new nor material , Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980); Russo , 3 M.S.P.R. at 34 9, and we have not considered them .
7 We have considered this document because it appears that the appellant did not
receive it until after the record closed below and he did submit evidence showing that
he was attempting to secure a cop y, PFR File, Tab 1 at 3-5, and because it bears on the
dispositive jurisdictional issue of this case.
5
at 3. The document further supports the appellant’s claim that he served on active
duty from November 6, 1980 , to November 5, 1984 , but it does no t establish that
he ever received a campaign badge or served in a campaign or expedition for
which a cam paign badge has been authorized. Id.; see Perez v. Merit Systems
Protection Board , 85 F.3d 591 , 594 (Fed . Cir. 1996) ( observing that a military
record must be afforded controlling weight). Although the appellant’s DD -214
shows that he was awarded an “Overseas Service Ribbon, Army Service Ribbon,
[and] Marksman (M -16 Rifle),” PFR File, Tab 3 at 3 , only certain badges qualify
as campaign badges as designated by OPM’s Veterans’ Guide , and these are not
among them , see, e.g. , Dabney v. Merit Systems Protec tion Board , 566 F. App’x
920 (Fed. Cir. 2014).8
¶8 Because the appellant has not established that he is a preference eligible,
the Board does not have jurisdiction over the appeal of his removal and the
administrative judge properly dismissed it on that basis.
NOTICE OF APPEAL RIG HTS9
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
8 The Board may rely on unpublished Federal Circuit decisions if , as here, it finds the
court’s reasoning persuasive. Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513 , ¶ 12
(2011).
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights incl uded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (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.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your dis crimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this d ecision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district c ourts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 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.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 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.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective 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 | PEARSON_LEON_NY_0752_17_0051_I_1_FINAL_ORDER_2037975.pdf | 2023-06-05 | null | NY-0752 | NP |
3,053 | https://www.mspb.gov/decisions/nonprecedential/KANTOROWICZ_DEBBY_L_AT_0752_21_0395_I_1_FINAL_ORDER_2037978.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBBY L. KANTOROWICZ ,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0752 -21-0395 -I-1
DATE: June 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Esquire, Mt. Pleasant, South Carolina, for the
appellant.
Christopher Hawthorne , Esquire, Joint Base Andrews, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal for misconduct . On petition for review, the
appellant argues , among other things, that the agency’s charges against her lacked
specificity , the deciding official’s consideration of ex parte conversations
violated her due process rights and constituted harmful error , and the agency
failed to train her adequately in violation of merit systems principles . 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 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 supplement the administrative
judge’s findings related to the negligent performance of duties charge and the
appellant’s due process and harmful error claims, to address the appellan t’s new
argument that her alle ged lack of training violated 5 U.S.C. § 2301 (b)(7) , and to
supplement the administrative judge’s penalty analysis, we AFFIRM the initial
decision .
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In August 2019, the agency non competitively appointed the ap pellant to the
position of Non appropriated Fund (NAF) Human Resources Officer (HRO) under
3
the Schedule A appointment authority , for which the appellant claimed eligibility
base d on a disability . Initial Appeal File ( IAF), Tab 5 at 99, Tab 15 at 22-24,
Tab 27 at 51 -53. As the NAF HRO, the appellant was responsible for managing
an installation NAF HR office and executing its programs, including ensuring
such programs followed re gulations and policies. IAF, Tab 5 at 86 -89. Her
specific duties included the recruitment and placement of NAF employees, which
required knowledge of laws, regulations, and policies related to recruitment and
staffing. Id. at 87 -88. Prior to her appointment as NAF HRO , the appellant
gained several years of experience in recruiting and staffing and interpreting
policy and regulations working in HR for the agency, including during a previous
appointment as a NAF HRO from 2017 to 2018. Id. at 72 -75.
¶3 In September 2019, the appellant received 1 week of in -person training at
the Air Force Services Center (AFSVC), which provided technical support to
installation HR offices on USA Staffing —a software application integrat ed with
the USA Jobs website which the agency adopted in December 2019 as its hiring
platform for NAF positions. IAF, Tab 5 at 106, 138, Tab 12 at 89 , Tab 15 at 205.
AFSVC provided each attendee with the agency NAF USA Staffing User Guide
(USA Staffing Guide). IAF, Tab 5 at 135 -212, Tab 15 at 253 -54. From its
adoption until approximately September 2020, the appellant’s office used USA
Staffing to advertise and fill positions. IAF, Tab 28 , Hearing Recording Day 1
(HR-1) (testimony of the appellant’s subordinate), Tab 30 , Hearing Recording
Day 2 (HR -2) (testimony of the appellant), Tab 32 at 4-6. In August or
September 2020, the subordinate to whom the appellant had assigned USA
Staffing responsibilities left the agency. HR-2 (testimony of the appellant).
¶4 In September 2020, the appellant and the NAF HR office began filling
positions through a shortened process by soliciting paper résumé s mainly through
word -of-mouth, providing those résumé s to hiring managers , and hiring
employees directly without competing vacancies through USA Staffing . HR-1
(testimony of the appellant’s subordinat e). The appellant informed her supervisor
4
that she obtained permission from AFSVC to fill vacancies by directly appointing
individuals using paper résumé s in this manner because positions at the
installation were “hard -to-fill.” IAF, Tab 5 at 59 -60, 130, HR-1 (testimony of the
appellant’s supervisor). Six employees were hired through this procedure . IAF,
Tab 5 at 129, 238-43, HR-1 (testimony of the appellant’s supervisor ).
¶5 After learning these procedures were incorrect, the agency removed the
appellant based on two charges of misconduct: (1) negligent performance of
duties, for failing to announce vacancies and directly hiring candidates without
competition in violation of agenc y policy ; and (2) lack of candor, for telling her
supervisor that AFSVC gave her permission to accept paper résumé s from
applicants and h ire directly because positions at the installation were hard to fill.
IAF, Tab 5 at 16-29, 109 -114. The appellant app ealed her removal to the Board.
IAF, Tab 1.
¶6 After affording the appellant her requested hearing, the administrative judge
affirmed the appellant’s removal, finding that the agency proved its charges by
preponderant evidence, that the appellant failed to prove her affirmative defenses
of race, sex, or disability discrimination, that the appellant failed to show she was
denied minimum d ue process, and that the agency proved a nexus between its
action and the efficiency of the service and the reasonableness of its penalty.
IAF, Tab 39, Initial Decision (ID) at 3 -21. On review , among other contentions,
the appellant reiterates her argument that the charges’ lack of specificity violated
her due process rights and constituted harmful error . Petition for Review ( PFR )
File, Tab 1 . The appellant also raises a new argument that the agency’s alleged
failure to adequately train her violated the merit systems principle in 5 U.S.C.
§ 2301 (b)(7) . Id. at 12-15. The agency filed a response. PFR File, Tab 3.
¶7 Upon review, we agree with the administrative judge’s findings in the
initial decision. However, the administrative judge did not analyze several issues
raised during the course of the appeal which me rit discussion —namely, the
agency’s allegation in the negligent performance of duties charge that the
5
appellant violated the NAF Personnel Guide , and the appellant’s allegations that
the lack of candor charge ’s insufficient specificity and the de ciding off icial’s
consideration of ex parte communications violated her due process rights and
constituted harmful error. Accordingly, in addition to the appellant’s new
allegation that her purported lack of training violated 5 U.S.C. § 2301 (b)(7) , we
address these contentions here.
The appellant’s conduct described in the negligent performance of duties charge
violated the agency ’s NAF Personnel Guide .
¶8 In the negligent performance of duties charge, the agency alleged that the
appellant’s conduct was negligent because she failed to adhere to agency policies,
namely the NAF Personnel Guide3 and the USA Staffing Guide. IAF, Tab 5
at 109. In finding that t he agency proved this charge, the administrative judge
discussed how the appellant knew or should have known of her responsibility to
follow agency policy in the USA Staffing Guide but failed to do so . ID at 7.
Specifically, the administrative judge note d that the record reflects that the
appellant was given a copy of the USA Staffing Guide and attended training on
the process in September 2019, nearly a year before giving a direction to initiate a
“direct hire” or “straight hire” process. Id. The administrative judge did not
discuss the appellant’s alleged violation of the agency’s NAF Personnel Guide ,
and accordingly we do so here.
¶9 Although the administrative judge was correct to find that the appellant ’s
conduct violated the USA Staffing Guid e, ID at 4, 7 -8, the June 2019 NAF
Personnel Guide contains the instruction that most aptly captures the scope of the
appellant’s violation of agency hiring policy . Section 4.5.1 of the NAF Personnel
3 This document is referenced by its full title, th e Nonappropriated Fund Personnel
Program Management and Administration Procedures Guide, or other abbreviations
thereof, at other points in the record. See, e.g. , IAF, Tab 5 at 115, 233. Although the
document itself is not in the record, it is publicly a vailable on the internet and the
Board may take official notice of publicly available documents. Graves v. Department
of Veterans Affairs , 123 M.S.P.R. 434 , ¶ 19 n.3 (2016).
6
Guide states in relevant part: “ NAF -HR Section is resp onsible for ensuring: . . .
4.5.1.3. All positions open for recruitment are announced via the authorized
web-based system. There is no restriction in using other recruitment sources
as well; however, applicants must be directed to make application
via the authorized website .” U.S. Air Force, NAF Personnel Program
Management and Administration Procedures Guide , § 4.5.1 (June 2019),
https://www.lafss.com/wp -content/uploads/docs/naf -human -resources/naf -
guide.pdf . The appellant’s undisputed conduct —hiring employees based on
applicants’ paper résumé s without posting announcements through USA Staffing,
the agency’s authorized web -based h iring system, HR-2 (testimony of the
appellant) —violated this provision .4 Further, a s her own correspondence shows ,
the appellant was aware of her obligation to follow the NAF Personnel Guide at
the time of her misconduc t. IAF, Tab 12 at 50 -51.
¶10 Culpable 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. Velez v. Department of Homeland Security , 101 M.S.P.R. 650 ,
¶ 11 (2006) , aff’d , 219 F. App’x 990 (Fed. Cir. 2007) . Accordingly , in addition
to the appellant’s violation of the USA Staffing Guide as found by the
administrative judge, the appellant’s failure to follow the NAF Personnel Guide
despite her knowledge of her duty to do so , her responsibility, as NAF HRO, to
ensure her office’s progr ams adhered to policy , and her years of experience,
support s the administrative judge’s finding that the agency proved the negligent
performance of duties charge . See id., ¶¶ 11 -24 (finding that an appellant ’s
4 Though he disputed that the appellant’s conduct was negligent, as noted by the
administrative judge, the appellant’s representative essentially conceded the factual
accuracy of the depiction of the a ppellant’s conduct in the negligent performance of
duties charge at the hearing. ID at 7; HR -2 (the appellant’s representative’s closing
argument).
7
violation of an agency’s policy of which he was aware constituted negligent
performance of duties).
The charges provided the appellant with sufficient ly specific notice of the reasons
for her removal.
¶11 The appellant argues that, because the charges omitted details such as the
dates of her misconduct and names of the indivi duals she improperly hired, the
proposal notice did not provide her with a meaningful opportunity to reply in
violation of her due process rights and constituted harmful error .5 PFR File,
Tab 1 at 10 -11. Due process in removal proceedings requires notice of the
charges, an explanation of the agency’s evidence, and an opportunity to respond.
Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985). Under
5 U.S.C. § 7513 (b), an employee against whom an adverse action is proposed is
entitled to be informed of the specific reasons for the agency’s proposed act ion.
Ragolia v. U.S. Postal Service , 52 M.S.P.R. 295 , 301, aff’d , 983 F.2d 1086 (Fed.
Cir. 1992) (Table). Section 7513(b) requires that the information provided by the
agency be sufficiently specific to permit the employee to properly respond to the
agency’s charge. Id. The Board has held that the notice requirement is satisfied
when the proposal and any attachments to it, taken together, provide the employee
with specific notice of the charges so that she can make an informed and
meaningful reply. Alvarado v. Department of the Air Force , 97 M.S.P.R. 389 ,
¶ 15 (2004).
¶12 Reversal of an action for harmful error is warranted when a procedural
error, whether regulatory or statutory, likely had a harmful effect upon the
outcome of the c ase before the agency. Stephen v. Department of the Air Force,
47 M.S.P.R. 672 , 681 (1991). Harmfu l error cannot be presumed; the Board will
5 The appellant also alleges that the lack of specificity in the negligent performance of
duties charge vi olated agency policies and procedures, PFR File, Tab 1 at 17 -18, but
does not identify what these policies and procedures were. Thus, we have no basis to
consider this claim further.
8
reverse an action for harmful error only when the record shows that the
procedural error was likely to ha ve caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Id. at 681, 685.
¶13 The administrative judge addressed the appellant’s due process and harmful
error arguments with respect to the negligent performance of duties charge,
correctly finding them unsupported because the appellant was notified of the
employees she improperly hir ed in the evidence file provided with the proposal
notice , and her replies to the proposal notice indicated that she understood and
addressed the charge.6 ID at 17 -19; see Alvarado , 97 M.S.P.R. 389, ¶ 15. The
appellant provides no basis to disturb these findings.
¶14 The appellant’s claim that the lack of candor charge lacked sufficient
specificity , which the administrati ve judge did not address, is also unsupported .
The lack of candor charge notified the appellant of the approximate date of her
statement, “in or around” September 2020, the name of her supervisor to whom
she made the statement, a description of the statement that lacked candor, that
AFSVC gave her permission to accept paper résumé s and to make direct hires,
and an explanation as to why that statement lacked candor , because the appellant
never actually receive d such permission . IAF, Tab 5 at 109. The proposal notice
was also accompanied by a statement from the appellant’s supervisor further
describing the appellant’s statement and its context, as well as other evidence
supporting the charge , including stateme nts from AFSVC representatives stating
that the claimed permission would not have been given . Id. at 127 -30, 213 -14,
233.
6 Though the administrative judge purported to only address the appellan t’s due process
argument, he analyzed the appellant’s claim that the negligent performance of duties
charge lacked sufficient specificity as alleged violations of both the appellant’s due
process rights and 5 U.S.C. § 7513 (b). ID at 17 -19; see Loudermill , 470 U.S. at 546;
Ragolia , 52 M.S.P.R. at 301.
9
¶15 Finally , the appellant’s written reply —in which she explained that the
inaccuracies in her statement that formed the basis of the c harge were not due to
her lack of candor , but to her mishearing an AFSVC representative’s statement
about paper résumé s during the USA Staffing training because of noise in the
room , or her misunderstanding of the difference between résumé s and
applications caused by her lack of training , id. at 102 —evidenced that she
understood the charge . Thus, the appellant fails to demonstrate how the lack of
candor charge violated her due process rights or 5 U.S.C. § 7513 (b). See
Alvarado , 97 M.S.P.R. 389 , ¶¶ 8 -15 (finding that under either the requirements of
minimum due process or 5 U.S.C. § 7513 (b), an appellant received sufficient
notice in a careless workmanship charge which referred to discrepancies listed in
attached documentation, and attached to the notice was a chart listing his
discrepancies, which the appellant understood as evidenced by his reply). Even if
either of the charge s lacked the specificity required by 5 U.S.C. § 7513 (b), there
is no indication in the record that the appellant would have responded to the
charges differently or that the deciding official would have reached a different
result had either charge been set forth with more specificity . Accordingl y, no
harmful erro r result ed.
The deciding official’s consideration of ex parte communications did not violate
the appellant’s due process rights or constitute harmful error .
¶16 The appellant also contends that th e deciding official’s consideration of ex
parte communications about her proposed removal violated her due process rights
and constituted harmful error .7 PFR File, Tab 1 at 9 -10, 16. Because the
administrative judge did not address th ese argument s, we do so here.
7 The appellant’s contention that the deciding official was “biased” appears merely to
rephrase her argument that his consideration of ex parte commun ications violated her
due process rights . IAF, Tab 11 at 7; PFR File, Tab 1 at 10 .
10
¶17 The record indicates that the deciding official engaged in ex parte
communications with several installation employees , including the appellant’s
supervisor and other members of the civilian personnel office, regarding the
appellant’s proposed removal prior to issuing his decision notice . IAF, Tab 18
at 9-15, 23 -31, 92 -96, HR-1 (testimony of the appellant’s supervisor and of the
deciding official), HR-2 (testimony of the proposing official). He stated that
some of these conversations were prompted by his need for clarification on hiring
procedures and th e proposal “package .” IAF, Tab 18 at 13 , 21 , 94 , HR-1
(testimony of the deciding official) . He also stated that, prompted by the
appellant’s claim in her reply that her Schedule A letter put the agency on notice
that she was disabled and in need of a rea sonable accommodation, he spoke with
an HR official who informed him that the appellant had not requested a
reasonable accom modation , that a request for a reasonable accommodation
needed to be supported by medical documentation, and that the appellant’s
Schedule A letter , which stated the nature of her disability but did not provide
further detail , was insufficient to support a request for a reasonable
accommodation . IAF, Tab 5 at 99, 103, Tab 18 at 75, 77 -81, HR-1 (testimony of
the deciding official). Lastly, t he appellant’s supervisor asked the deciding
official between the issuance of the proposal notice and the deciding official’s
decision for permission to speak to AFSVC about issues resulting from the
appellant’s misconduct and to fund assistance of the NAF HR office .8 IAF,
Tab 18 at 234, HR-1 (testimony of the appellant’s supervisor) , HR-2 (testimony
of the proposing official) .
¶18 Pursuant to the decision s of the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) in Ward v. U.S. Post al Service, 634 F.3d 1274 , 127 9-80
8 The deciding official also spoke to his supervisor about the appellant’s proposed
removal and related matters prior to the issuance of his decision notice , but it is unclear
what information, if any, he received during those conversations. IAF, Tab 18 at 23 -31.
11
(Fed. Cir. 2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d
1368 , 1376 -77 (Fed. Cir. 1999), a deciding official viola tes an employee’ s due
process rights when he relies upon new and material ex parte informat ion as a
basis for h is decisions on the merits of a proposed charge or penalty . In Stone,
the Federal Circuit identified three factors to be used to determine if ex parte
information is new and material: (1) whether the ex parte information introduced
cumulative, as opposed to new, information; (2) whether the employee knew of
the information and had an opportunity to respond; and (3) whether the
communication was of the type likely to result in undue pressure on the deciding
official to rule in a particular manner. 179 F.3 d at 1377. The ultimate inquiry in
determining whether a due process violation occurred is whether the ex parte
communication is so substantial and so likely to cause prejudice that no employee
can fairly be required to be subjected to a deprivation of pr operty under such
circumstances. Id. The agency does not dispute that the appellant was not
notified of the information the deciding official obtained during his ex parte
communications, and thus only the first and third Stone factors are at issue. IAF,
Tab 18 at 14; see PFR File, Tab 3 at 7 -8.
¶19 Ward, Stone , and their progeny recognize that not all ex parte
communications rise to the level of due process violations . Thus, a deciding
offici al does not violate an employee’ s right to due process when he considers
issues raised by an employee in her response to the proposed adverse action and
then rejects those arguments in reaching a decision. Grimes v. Department of
Justice, 122 M.S.P.R. 36 , ¶ 13 (2014). Further , a deciding official does not
violate an employee’s due process rights by initiating an ex parte communication
that only confirms or clarifies information already contained in the record. Blank
v. Department of the Army, 247 F.3d 1225 , 1229 (Fed. Cir. 2001) . In Blank , the
Federal Circuit found that a deciding official’s investigatory interviews to
determine whether there were inconsistencies in the agency’s case and to
ascertain the veracity of an appellant’s affirmative defenses only confirmed and
12
clarified information already in the record without introducing new and material
inform ation, and therefore did not violate the appellant’s due process rights . Id.
at 1227, 1229 -30.
¶20 In Mathis v. Department of State , 122 M.S.P.R. 507, ¶¶ 6 -16 (2015), we
considered whether a deciding official’s ex parte communications regarding
assertions an appellant made in reply to a proposed removal for unacceptable
performance introduced new, as opposed to cumulative, information. In her reply
to her proposed removal, the appellant in Mathis attributed her low production
rate to computer outages and work on complex cases, and alleged that the agency
ignored her requests for a reasonable accommodation. Id., ¶ 3. The deciding
offic ial investigated these alleged mitigating circumstances by ema iling an HR
representative, who responded that the agency made allowances for significant
computer outages, that complex cases were part of the normal work of the
appellant’ s position , and that the appellant never sent any information to the
agency’s reasonable accommodation division despite being informed of the
reasonable accommodation process . Id., ¶ 4. We found that t he deciding
official ’s consideration of this information did not introduce new information
because the HR representative’s response merely clarified or confirmed whether
the allegations raised in the appellant’s reply were supported by the facts , and
was consistent with information already in the record . Id., ¶ 12.
¶21 Here , the deciding official’s ex parte communications did not introduce new
information for the reasons we described in Mathis . The communications in
which the deciding official obtained clarification of hiring procedures and
information in the pro posal package are firmly under the ambit of investigatory
communications that do no more than confirm or clarify the record , and
consistent with Blank and Mathis , did not violate the appellant’s due process
rights . See Blank, 247 F.3d at 1229 -30; Mathis , 122 M.S.P.R. 507 , ¶ 12. Indeed,
descriptions of proper hiring practices were already contained in the record the
agency relied on t o take its action and which was provided to the appellant . IAF,
13
Tab 5 at 115, 127-130, 213, 233. As in Mathis , the deciding official’s ex parte
communications regarding the absence of a request for, or documentation to
support, a reasonable accommodation from the appellant merely clarified or
confirmed whether the disability discrimination allegation raised in the
appellant’s reply was supported by facts. Further, the content of these
communications comported with the absence of any actual reasonable
accommodation request or supporting medical documentation in the record . IAF,
Tab 18 at 74 -75, 83, HR-1 (testimony of the appellant’s supervisor and of the
deciding official ). There is also no indication in the record that the deciding
official received any new information from the appellant’s supervisor during her
request s for permission to speak to AFSVC or to fund assistance for the NAF HR
office . Accordingly, t he deciding official’s ex parte communications did not
introduce new information under the fir st Stone factor.
¶22 Regarding the third Stone factor, we follow our holding in Mathis , in which
the information contained in the ex parte communications was of the same
character as the information at issue here , and was found to be not of the type
likely to result in undue pressure upon the deciding official to rule in a particul ar
manner. 122 M.S.P.R. 507 , ¶ 15. This case is dissimila r from instances in which ,
for example, deciding officials placed decisive weight on new information
obtained in ex parte communications or considered aggravating factors which
were not contained within the agencies’ proposal notices without giving the
appellants an opportunity to respond. See, e.g. , Young v. Department of Housing
and Urban Development, 706 F.3d 1372 , 1377 (Fed. Cir. 2013) (finding that ex
parte communication s constituting a “huge” departure from the record contained
more than confirming and clarifying information, and were new and material
because they played a significant and overwhelming role in the removal
decision ); Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶¶ 9 -10 (2012) (ex
parte information consisted of deciding official’ s consideration of appellant being
Giglio -impaired) .
14
¶23 Thus, weighing all of the Stone factors, we find that the information
contained in the ex parte communication s was not “so substantial and so likely to
cause prejudice that no employee can fairly be required to be subjected to a
deprivation of pr operty under such circumstances, ” Stone, 179 F.3d at 1377 , and
conclude that the deciding official’s consideration of ex parte communications
did not violate the appellant’s due process rights . We also find that, to the extent
that the deciding official’s ex parte communications may have constituted
procedural error,9 there is no indication in the record that any such error was
harmful in that it was likely to have caused the agency to reach a conclusion
different from the one it would have reached absent the error . See Tom v.
Department of the Interior , 97 M.S.P.R. 395, ¶ 43 (2004).
The appellant’s claim that she was not adequately trained in violation of the merit
system principle in 5 U.S.C. § 2301 (b)(7) does not warrant relief.
¶24 Finally, the appellant contends that deficiencies in the AFSVC in-person
USA Staffing training and USA Staffing Guide and her unheeded requests for
training to her supervisors affected her ability to perform her duties. PFR File,
Tab 1 at 7 -8, 12-14. Although the administrativ e judge appropriately credited the
testimony of other witnesses who refuted the appellant’s arguments that the USA
Staffing training or guide were inadequate, ID at 12 n.6 (citing HR -1 (testimony
of the AFSVC representative and of the Goodfellow NAF HRO) ), the appellant
raises these issues on review to argue for the first time that the agency violated
the merit system principle in 5 U.S.C. § 2301 (b)(7), which states “[e]mployees
should be provided effective education and training in cases in which such
education and training would result in better organizational and individual
performance.” PFR File, Tab 1 at 12 -13. Because she fails to show that this new
9 Though the appellant alleges that the deciding official’s consideration of ex parte
communications violated the agency’s policies and procedures, PFR File, Tab 1
at 17-18, she fails to identify what these policies and procedures were. Thus, we need
not consider this claim further.
15
argument is based on new and material evidence not previously available despite
her due diligence, we need not consider it. Clay v. Department of the Army ,
123 M.S.P.R. 245 , ¶ 6 (2016).
¶25 However, even if we were to consider the argument, it would fail on the
merits because t he Board has long held that the merit systems principles set forth
in 5 U.S.C. § 2301 are not self -executing an d that, absent evidence that an agency
violated a law, rule , or regulation implementing the merit system principle, i.e.,
committed a prohibited personnel practice, an alleged violation thereof does not
give rise to an affirmative defense to an adverse action. LeBlanc v. Department
of Transportation , 60 M.S.P.R. 405, 417 (1994), aff’d , 53 F.3d 346 (Fed. Cir.
1995) (Table) . Because the appellant has not identified a law, rule, or regulation
implementing section 2301(b)(7 ) that the agency violated, let alone alleged that
the agency committed a pro hibited personnel practice, her allegation that the
agency violated section 2301(b)(7) fails.10
10 Aside from the appellant’s claim under section 2301(b)(7), her argument that she was
inadequately trained by the agency is cont radicted by the weight of the evidence. We
agree with the administrative judge’s refutation of this argument , and also note that the
record shows that after the USA Staffing training, the appellant was allowed to release
job vacancies on USA Staffing only after AFSVC confirmed her ability to input
vacancies in to the platform. Tab 12 at 39-40, HR -1 (testimony of the AFSVC
representative). Further, the Goodfellow Air Force Base NAF HRO stated that in
August 2020, prior to the appellant’s misconduct, she pr ovided the appellant with a user
guide with step -by-step instructions for each section of USA Staffing she created and
kept up -to-date. IAF, Tab 18 at 128 -29. The appellant’s supervisor stated that she
never learned, from the appellant or elsewhere, that the USA Staffing training was
poorly conducted, that the USA Staffing Guide had any gaps, or that the appellant had
any difficulty understanding how to use USA Staffing. HR -1 (testimony of the
appellant’s supervisor). Contrary to the appellant’s asserti ons, t he proposing official
stated that she did not recall the appellant ever raising concerns with her about training.
HR-2 (testimony of the proposing official). Finally, even if the agency’s USA Staffing
training or USA Staffing Guide was deficient in any respect, the appellant could have
chosen to avail herself of assistance from AFSVC —which’s purpose was to assist
installations and with which she was in regular contact —or others in the agency to
operate USA Staffing rather than resort to misconduct. IAF, Tab 12 at 31, 35 -37,
50-51, 53 -54, 62 -63, 92, Tab 15 at 205, 234-37, 241, 257 -58, Tab 18 at 128-29, Tab 27
16
The penalty of removal is within the tolerable limits of reasonableness.
¶26 In assessing the agency's penalty determination, the administrative judge
found that the d eciding official had considered the relevant Douglas factors and
that the penalty of removal was within the tolerable limits of reasonableness. ID
at 19 -21. The administrative judge noted that the deciding official had considered
the appellant’s 11 years of service, clean disciplinary record, and positive
performance ratings as mitigating factors. ID at 20. Although we agree with the
administrative judge’s conclusion that the penalty of removal was within the
tolerable limits of reasonableness, we supplement his penalty analysis to consider
an additio nal potential mitigating factor .
¶27 Although the appellant h ad notice of the proper hiring procedures, her
office was understaffed and the staff members who were in place did not have
adequate training on hiring procedures. IAF, Tab 18 at 171 -77. The appellant
raised concerns with her supervisor but indicated tha t she was not getting much
help. Id. 177-78. After the appellant’s removal, the agency brought in a HRO
from another facility to assist with various human resources matters; she reported
to management that “after being present in the NAF HRO i t was clear the current
personnel on staff needed a foundational training on all things NAF HRO,”
including USA Staffing and the recruitment process. IAF, Tab 14 at 80. These
staffing and training issues may have contributed to the work environment in
which the app ellant filled positions without following the required procedures. If
the agency had only charged the appellant with negligent performance of her
duties, there might have been grounds for mitigation. However, in light of the
appellant’s lack of candor an d her failure to fully accept responsibility for her
actions, we find that the appellant’s supervisors reasonably lost trust and
at 47, HR -1 (testimony of the ASFVC representative), HR -2 (testimony of the
appellant).
17
confidence in her ability to carry out the duties of her position. We therefore find
that the penalty of removal was within th e tolerable limits of reasonableness.
NOTICE OF APPEAL RIG HTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is m ost appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review t he law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main pos sible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
18
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U. S. Court of Appeals for the Federal 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 th e services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were af fected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a c ivil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Per ry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
19
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
20
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Fede ral
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
12 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Boar d appellants before the 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 | KANTOROWICZ_DEBBY_L_AT_0752_21_0395_I_1_FINAL_ORDER_2037978.pdf | 2023-06-05 | null | AT-0752 | NP |
3,054 | https://www.mspb.gov/decisions/nonprecedential/DOULETTE_TIMOTHY_M_NY_0752_17_0060_I_1_FINAL_ORDER_2038022.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY M. DOULETTE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-0752 -17-0060 -I-1
DATE: June 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Odarit V. Tirado , Carolina, Puerto Rico, for the appellant.
Anne M. Gallaudet , Esquire, and Leslie L. Rowe , 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
sustained his removal . On pet ition for review, the appellant argues that the
administrative judge erred in merging the absence without leave (AWOL) and
failure to follow leave policy charges, erred in making her credibility
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
determinations, erred in finding that he received the order to return to work from
administrative leave, and erred in finding that removal was a reasonable penalty
for his lengthy period of AWOL. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the adminis trative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence o r legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as express ly
MODIFIED to separately sustain the charges of AWOL and failure to follow
leave policy , we AFFIRM the initial decision , which is now the Board’s final
decision.
¶2 AWOL and failure to foll ow leave procedures generally are separate
charges wi th different el ements of proof. Valenzuela v. Department of the Army ,
107 M.S.P.R. 549 , 553 n.* (2007) . To prove an AWOL charge , the agency mu st
show that the employee was absent and that his absence was not authorized or
that his request for leave was properly denied. Wesley v. U.S. Postal Service ,
94 M.S.P.R. 277 , ¶ 14 (2003) . To prove a failure to follow leave -requesting
procedures , the agency must show that the employee failed to request leave for an
absence and that he wa s clearly on notice of leave -requesting requirements and
the likelih ood of discipline for failure to comply. Allen v. U.S. Postal Service ,
88 M.S.P.R. 491 , ¶ 10 (2001) .
3
¶3 Under some circumstances, the charges of failure to follow leave
procedures and AWOL merge. T he charges of failure to follow leave -requesting
procedures and AWOL must be merged when they do not involve different
misconduct or elements of proof; that is, when the charge of AWOL was based
solely on the appellant ’s failure to follow leave -requesting procedures .
Westmoreland v. Department of Veterans Affairs , 83 M.S.P.R. 625, ¶ 6 (1999),
aff’d , 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds as
recognized in Pickett v. Department of Agriculture , 116 M.S.P.R. 439, ¶ 11
(2011). Here, the agency charged the appellant separately , and the AWOL charge
is not based solely on the appellant’s failure to follow leave procedures. Thus,
under these circumstances, merger of the AWOL and failure to follow leave
policy charges was not appropriate .
¶4 However, because the agency proved both charges, any error by the
administrative judge in m erging these charges provides no basis to reverse the
initial decision . Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984 ) (holding that an adjudicatory error tha t is not prejudicial to a party’ s
substantive rights provides no basis for reversal of an initial decision) . The
agency established that the appellant was absent from his workplace for 45 work
days from January 23, 2016, through March 25, 2016, and that his absence was
not authorized . Additionally, the agency proved that the appellant failed to call
the agency’s leave -requesting system or inform his supervisors he would be
absent as specified under the charge of fa ilure to follow leave policy. See Allen ,
88 M.S.P.R. 491 , ¶ 10 ; Initial Appeal File (IAF) , Tab 1 at 17. The appellant has
provide d no basis for disturbing the administrative judge’s well -reasoned finding
that, as a sup ervisor who was trained in time -and-attendance procedures, he was
aware of the process he had to follow to obtain approved leave. IAF, Tab 32,
Initial Decision at 14. Accordingly , we find that the agency proved both its
charges of AWOL and failure to follow leave policy.
4
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claim s determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the 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 limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to 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).
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 Appeal s for 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 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 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 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
7
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DOULETTE_TIMOTHY_M_NY_0752_17_0060_I_1_FINAL_ORDER_2038022.pdf | 2023-06-05 | null | NY-0752 | NP |
3,055 | https://www.mspb.gov/decisions/nonprecedential/EDWARDS_JOHN_B_SF_1221_16_0811_W_1_FINAL_ORDER_2037319.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN B. EDWARDS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-1221 -16-0811 -W-1
DATE: June 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald P. Ackerman , Esquire, Culver City, California, for the appellant.
Trenton Bowen , Keyport, 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
denied corrective action in his individual right of action (IRA) appeal. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
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 pr ocedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; 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 initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant raises a number of procedural arguments that he
claims “resulted in unfavorable conditions for a proper decision to be made in this
case.” P etition for Review (P FR) File, Tab 1 at 6. First, he alleg es that the
hearing had to be postponed for a month because one of the witnesses was
unavailable and that the time gap may “have made it difficult for the
administrative judge to decipher between disputed testimony and fact.” Id. This
is inaccurate. T he administrative judge afforded the parties a choice between
going forward with the hearing as scheduled and reconvening at a later date to
take the unavailable witness’s testimony or rescheduling the entire hearing and
the parties chose the former. Initia l Appeal File, Tab 29. Moreover,
administrative judges must frequently conduct hearings on nonconsecutive days
or reconvene hearings to take the testimony of previously unavailable witnesses.
The appellant’s mere speculation that the administrative judge ’s adjudication of
the case might have been compromised by the time gap between witnesses is not a
sufficient reason to disturb the initial decision.
¶3 Second, the appellant asserts that it took more than 180 days from the
conclusion of the hearing to the is suance of the initial decision, and he implies
that the case was too complicated for the administrative judge to grasp because of
3
all the jargon and idiosyncratic regulations involved. PFR File, Tab 1 a t 6-7. A
delay between the date of the hearing and t he issuance of the initial decision,
without some evidence of prejudice, is not a basis for disturbing the initial
decision. As to the complexity of the case, we disagree with the appellant’s
assumption that the unfamiliar jargon and rules in this case we re materially more
difficult than in the Board’s other cases, and we do not find the legal issues in
this appeal to be unusually complex.
¶4 Third, it appears that the appellant argues that the testimony of key
witnesses for the agency went unrebutted becau se the appellant’s counsel decided
not to interpose objections “for fear of appearing confrontational or
disrespectful.” PFR File, Tab 1 at 7. We see no prejudice to the appellant’s
substantive rights because he had an opportunity to cross -examine the ag ency’s
witnesses if he preferred not to interpose objections. Counsel’s tactical decisions
concerning how to handle witnesses for the agency and the consequences flowing
therefrom are his own responsibility and are not a reason to set aside the initial
decision. Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981) (stating
that the appellant is responsible for the errors of his chosen representative ).
¶5 Fourth, the appellant submits what he contends i s new and material
evidence in the form of an Inspector General report, issued 2 months after the
conclusion of the hearing and received 1 month later, concluding that three of the
appellant’s four disclosures were substantiated. PFR File, Tab 1 at 7 & co py of
report. The report was available to the appellant 3 months before the date of the
initial decision , and the appellant has not explained why he did not send the
report to the administrative judge. Under 5 C.F.R. § 1201.115 (d), the Board
generally will not consider evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the record was closed
despite the party ’s due diligence . Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980). The report is also not material because the issue in an IRA
appeal is not whether the agency committed waste , fraud , abuse, etc., but whether
4
the agency retaliated against the appellant for reporting waste , fraud , and abuse.
The Board generally will not grant a petition for review based on new evidence
absent a showing that it is of s ufficient weight to warrant an outcome different
from that of the initial decision . Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980).2
¶6 The appellant also alleges that the administrative judge erred by finding that
the agency proved by clear and convincing evidence that it would have terminated
him absent any protected activity. We have reviewed the record and the
appellant’s arguments, in particular his argument about changing electronic
inventory entries . We find these arguments unpersuasive and conclude that the
appellant ha s provided no basis to disturb the initial decision.3
NOTICE OF APPEAL RIG HTS4
You may obtain review of this fina l decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the right s described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 After the record closed on review, the appellant filed a motion for leave to file an
additional pleading in which he states that he has a 2018 “document and URL” that are
pertinent to his case. PFR File, Tab 8. He does not describe the contents of the
document he wishes to submit or explain how it might affect the outcome of his appeal.
Russo , 3 M.S.P.R. at 349. Furthermore, although he states that the document was not
available when his petition for review was d ue in 2017, he does not explain why he
waited until April 28, 2022 , to file a motion for leave to submit it. We therefore deny
the appellant’s motion. 5 C.F.R. §§ 1201.114 (k), .115(d).
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.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully f ollow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guid e for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, y ou may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6
Board neither endorses the services provided by any attorney nor warran ts that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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 representative in this case,
and your representative receives this decision before you do, then you must file
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method 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 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.5 The court of appeals must receive your petition for
5 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 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
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 TH E BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | EDWARDS_JOHN_B_SF_1221_16_0811_W_1_FINAL_ORDER_2037319.pdf | 2023-06-02 | null | SF-1221 | NP |
3,056 | https://www.mspb.gov/decisions/nonprecedential/WALSH_SHEILA_AT_1221_17_0746_W_1_REMAND_ORDER_2037394.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHEILA WALSH,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -17-0746 -W-1
DATE: June 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
Bobby R. Devadoss , Esquire, and Megan Zeller , Esquire, Dallas, Texas, for
the appellant.
Bradley Flippin , Esquire, Nashville, Tennessee , 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 petition for review , VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
initial decision, and REMAND the case to the Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is a GS -14 Human Resources Officer for the agency. Initial
Appeal File (IAF), Tab 1 at 10. On August 29, 2017, she filed the in stant IRA
appeal and requested a hearing. Id. at 2, 4 -6. She alleged that, in early 2017, the
agency took several personnel actions against her, including a reassignment, in
retaliation for protected disclosures that she had made between June and
Decembe r 2016. IAF, Tab 5 at 5 -10. After apprising the appellant of her
jurisdictional burden and ordering her to file evidence and argument on the issue,
IAF, Tab 3, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdic tion on the basis that the appellant failed to show she
exhausted her administrative remedies with the Office of Special Counsel (OSC) ,
IAF, Tab 14, Initial Decision (ID).
¶3 The appellant has filed a petition for review, arguing among other things ,
that the administrative judge erred in her exhaustion analysis. Petition for
Review (PFR) File, Tab 1 at 14. The agency has filed a response. PFR File,
Tab 3.
ANALYSIS
¶4 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative r emedies before OSC and makes n onfrivolous allegation that
(1) she engaged in activity protected under 5 U.S.C. § 2302 (b)(8) or (b)(9)(A)(i),
(B), (C), or (D); and (2) the activity was a contributin g factor in the agency’s
decision to take, fail to take, or threaten to take a personne l action as defined by
5 U.S.C. § 2302 (a)(2)(A) . Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 6
(2014) . The substantive requirements of exhaustion are met when an appellant
has provided OSC with sufficient basis to pursue an investigation that might lead
to corrective action. Chambers v. Department of Homeland Security , 2022 MSPB
3
8, ¶ 10. The appellant bears the burden of proving exhaustion by a preponderance
of the evidence. Diefe nderfer v. Department of Transportation , 108 M.S.P.R.
651, ¶ 28 (2008); 5 C.F.R. § 1201.57 (c)(1).
¶5 In this case, we agree with the administrative judge that the protected
disclosures that the appellant identifi ed in her jurisdictional pleading do not
match with the issues that she raised in her OSC whistleblower complaint. ID
at 3-4. In her jurisdictional pleading, the appellant appears to have identified
disclosures that (1) an agency official was blackmailin g the Network Director and
Deputy Director , (2) there was fraud being committed in processing recruitment
and relocation incentives , (3) the agency was attempting to terminate a physician
without cause, and possibly (4) an agency official physically intimidated her .2
IAF, Tab 5 at 5 -7. In her March 13, 2017 OSC whistleblower complaint, the
appellant alleged that the agency retaliated against her for making three protected
disclosures:
1. Whistleblower Retaliation for reporting Senior Executive Serv ice
(SES) officials’ misconduct including: prohibited acts against
[Central Alabama Health Care System (CAVHCS)] employees for
absolutely no reason at all. These malicious acts were unwarranted,
unjustified, illegal, and violated several Civil Rights laws , VA
Handbooks, VA policies, and/or regulatory guidelines. I reported
these illegal acts to the Office of Accountability and Review (OAR)
and the Office of the Under Secretary of Veterans Affairs.
2. Whistleblower Retaliation for supporting and standing up for the
employee rights of a CAVHCS’ Physician who is being harassed and
bullied by SES officials for filling [sic] a Workers’ Compensation
Claim, CA -2 Report. The submission of Worker’s Compensation
Claim (CA -2 Form, Notice of Occupational Disease and Claim for
Compensation) to the Department of Labor (DOL) is a Federal
2 The administrative judge specifically instructed the appellant to submit her
jurisdictional statement in list format, but the appellant submitted a narrative account
instead. IAF, Tab 3 at 7, Tab 5 at 5 -10. It is therefore not entirely clear to us what she
is claiming as protected disclosures and what she is claiming as retaliatory personnel
actions. Nevertheless, we have fully considered the appellant’s jurisdictional
submissions and have attemp ted to construe them in the light most favorable to her. See
Luecht v. Department of the Navy , 87 M.S.P.R. 297 , ¶ 8 (2000).
4
Employee’s right, and therefore to retaliate against him for
exercising his rights in the workplace is retaliation. Likewise, it is
also retaliation for Management Officials to retalia te against me for
assisting the Physician with the submission and processing of his
Workers’ Compensation Claim and related actions.
3. Whistleblower Retaliation for opposing unlawful discrimination. I
have stood up for acts of harassment against other Se rvice Chiefs in
the facility when they were targeted by Senior Officials in [Veterans
Integrated Service Network] 7 and CAVHCS.
IAF, Tab 5 at 20 -21, 24. Having carefully reviewed the appellant’s OSC
complaint, we agree with the administrative judge that t hat complaint does not
appear to encompass the disclosures that the appellant identified in her pleading .
ID at 3 -4.
¶6 Arguably, the appellant’s disclosure concerning the agency’s attempt to
terminate a physician without cause could fall under the rubric of “prohibited acts
against CAVHS’ employees for absolutely no reason at all.” IAF, Tab 5 at 6, 24.
However, the appellant’s description of this disclosure in her OSC complaint was
so vague that we are unable to determine what she meant by it; she did no t
explain the nature of these alleged “prohibited acts” even in a general way, she
did not identify the employees who were supposedly subjected to those acts, and
she did not identify the alleged perpetrators beyond stating that they were in the
Senior Exe cutive Service. IAF, Tab 5 at 24. Furthermore, the disclosure date
that the appellant listed in her OSC complaint does not match with the dates that
she listed for the termination without cause disclosure in her jurisdictional
pleading . IAF, Tab 5 at 6, 13, 24, Tab 7 at 27. In any event, even if the appellant
were attempting to raise the termination withou t cause disclosure to OSC, we fi nd
that she did not articulate it w ith sufficient clarity and precision to provide OSC
with a basis to pursue an inves tigation. See Ellison v. Merit Systems Protection
Board , 7 F.3d 1031 , 1036 (Fed. Cir. 1993) .
¶7 The appellant a rgues on petition for review that the administrative judge’s
exhaustion analysis was too restrictive. She suggests that the administrative
5
judge could have limited the issues in this case to those contained in her OSC
complaint, but “a blanket refusal to give any jurisdiction, p eriod, is ent irely
incorrect.” PFR File, Tab 1 at 7. As an initial matter, we again note that the
appellant did not follow the administrative judge’s order to list the elem ents of
her claim in a specific format . IAF, Tab 3 at 7. She has still not done so on
review. IRA appeals involving multiple disclosures and multiple personnel
actions can be very complex, and an administrative judge may require that an
appellant formulate her claims in a manner that will allow for a clear
identification and efficient adjudicatio n of those claims. See Luecht v.
Department of the Navy , 87 M.S.P.R. 297 , ¶ 8 (2000). Nevertheless, we have
considered the all eged disclosures identified in the appellant’s OSC complaint,
and considering the record as a whole, we find that she has established
jurisdiction over her appeal as to her disclosure regarding the workers’
compensation claim.3 IAF, Tab 5 at 24; see Luech t, 87 M.S.P.R. 297 , ¶ 8 .
¶8 The record contains a January 3, 2017 email in which the appellant
disclosed that she discovered a workers’ compensation incident report had been
altered to change the name of the evaluating physician . IAF, Tab 7 at 14. We
find that the appellant could h ave reasonably believed that somebody falsified
this form, which in turn could have constituted a violation of 18 U.S.C.
§ 1001 (a)(3).4 We therefore find that the appellant made a nonfrivolous
3 Regarding the “prohibited acts” disclosure, as explained above, even assuming that
this disclosure was protected, the appellant’s OSC complaint failed to describe it in
sufficient detail to satisfy the exhaustion requirement. Supra ¶ 6; IAF, Tab 5 at 24.
Regarding the disclosure about unlawful discrimination, not only is the appellant’s
description of this disclosure too vague to satisfy the exhaustion requirement, it is well
settled that disclosures concerning discrimination are not covered under the
Whis tleblower Protection Enhancement Act and cannot serve as the basis for an IRA
appeal. IAF, Tab 5 at 24; Edwards v. Department of Labor , 2022 MSPB 9 , ¶¶ 22-23.
4 The appellant also appears to allege that she suffered retaliation for assisting this
employee in filing h is workers’ compensation claim. IAF, Tab 5 at 24. This, however,
does not constitute protected activity under the Whistleblower Protection Enhancement
Act. Marcell v. Department of Veterans Affairs , 2022 MSPB 33 , ¶ 6.
6
allegation that she made a protected disclosure under 5 U.S.C. § 2302 (b)(8)(A).
See Rice v. Department of Agriculture , 97 M.S.P.R. 501 , ¶ 9 (2004) . Subsequent
email correspondence shows that the appellant ’s supervisor became aware of this
disclosure on January 9, 2017. IAF, Tab 7 at 12 -14. Shortly thereafter, on
Janu ary 27, 2017, the appellant ’s supervisor subjected her to a reassignment,
which is a personnel a ction under 5 U.S.C. § 2302 (a)(2 )(A)(iv). We find that
these facts constitute a nonfrivolous allegat ion under the knowledge/timi ng test of
5 U.S.C. § 1221 (e)(1) that the disclosure was a contributing factor in the
appellant ’s reassignment. Finally, we find that the appellant ’s description of this
disclosure to OSC was sufficiently clear to satisfy the exhaustion requirement.
The appellant identified the general subject matter of the disclosure, the date of
the disclosure, the recipients of the disclosure, and the details of the allegedly
retaliatory reassignment with sufficient detail to allow OSC to conduct an
investigation into the matter if it chose to. IAF, Tab 5 at 24 -27.
ORDER
¶9 For the reasons discussed abov e, we remand this case to the Atlanta
Regional Office for furth er adjudication in accordance with this Remand Order.5
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
5 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order. | WALSH_SHEILA_AT_1221_17_0746_W_1_REMAND_ORDER_2037394.pdf | 2023-06-02 | null | AT-1221 | NP |
3,057 | https://www.mspb.gov/decisions/nonprecedential/MARRISETTE_DOUGLAS_AT_0752_15_0680_B_1_FINAL_ORDER_2037416.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DOUGLAS MARRISETTE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -15-0680 -B-1
DATE: June 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Norman Jackman , Esquire, Cambridge, Massachusetts, for the appellant.
Luis E. Ortiz , Orlando, Florida, 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 remand initial decision,
which dismissed for lack of jurisdiction the appeal of his removal pursuant to a
last chance agreement (LCA) . On petition for review, the appellant reasserts his
closing arguments and resubmits e vidence . Compare Marrisette v. Department 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
Veterans Affairs , MSPB Docket No. AT -0752 -15-0680 -B-1, Remand Petition for
Review (RPFR) File, Tab 1 , with Marrisette v. Department of Veterans Affairs ,
MSPB Docket No. AT -0752 -15-0680 -B-1, Remand File (RF), Tab 16 . The
agency has filed a response. RPFR File, Tab 3.2 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 erron eous
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 un der section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to address the scope and applicability of the waiver of appeal rights
in the LCA , we AFFIRM the remand initial dec ision.
¶2 The appellant’s re assertion of his closing arguments on review , without
more, does not provide a reason to disturb the administrative judge’ s finding s that
the appellant failed to show that he did not voluntarily enter into the LCA or that
he complied with the LCA . RPFR File, Tab 1 at 4 -7; RF, Tab 17, Remand Initial
Decision at 4 -9; see Rhett v. U.S. Postal Service , 113 M.S.P.R. 17 8, ¶ 13 (2010)
(explaining that, to establish that a waiver of appeal rights in an LCA should not
be enforced, an appellant must show one of the following: (1) he complied with
the LCA; (2) the agency materially breached the LCA or acted in bad faith; (3) he
did not voluntarily enter int o the LCA; or (4) the LCA resulted from fraud or
2 We have not considered the agency’s submission of evidence on review because it is
immaterial to the outcome of this appeal.
3
mutual mistake). Further , the evidence attached to the appellant’s petition for
review is already a part of the record, and we find it does not contain any
information of sufficient weight to change the out come . RPFR File, Tab 1
at 8-10; RF, Tab 16 at 8-10; see Meier v. Department of the Interior , 3 M.S.P.R.
247, 256 (1980) ; 5 C.F.R. § 1201.115 (a), (d) .
¶3 However, we modify the remand initial decision , as follows, to address the
scope and applicability of the waiver of appeal rights in the LCA. See Rhett ,
113 M.S.P.R. 178, ¶ 17. It is well settled that a waiver of a statutory right must
be clear, unequivocal, and decisive. Hamiter v. U.S. Postal Service , 96 M.S.P.R.
511, ¶ 15 (2004). Here, the LCA concerned the agency’s November 12, 2012
decision to remove the appellant. Marrisette v. Department of Veterans Affairs ,
MSPB Docket No. AT -0752 -15-0680 -I-1, Initial Appeal File , Tab 7, Subtab 4f
at 1. Under the LCA, the agency agreed to hold the effective date of his removal
in abeyance in return for h is compliance with the terms of the LCA for a 2 -year
period. Id. The appellant agreed that any violation of the LCA would result in
his removal becoming effective immediately upon notice of the violation , and he
further agreed to waive his right to appea l the November 12, 2012 removal
decision. Id. at 1 -2. We find that this language constitutes a clear and
unequivocal waiver of the appellant’s right to appeal the implementation of his
November 12, 2012 removal to the Board. See Bruhn v. Department of
Agriculture , 124 M.S.P.R. 1 , ¶¶ 20-22 (2016) (finding that the appellant waived
his right to appeal the implementation of his prior removal under the terms of the
LCA) . Accordingly, we affirm the dismissal of this appeal for lack of
jurisdiction.
4
NOTICE OF APPEAL RIGHTS3
The initial decision, as su pplemented 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 state ment of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requireme nts. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen 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
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 m ay have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such ac tion
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
6
race, color, religion, sex, national origin, or a disabling condition, you 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 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
7
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C ), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for 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
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 de cisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 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 | MARRISETTE_DOUGLAS_AT_0752_15_0680_B_1_FINAL_ORDER_2037416.pdf | 2023-06-02 | null | AT-0752 | NP |
3,058 | https://www.mspb.gov/decisions/nonprecedential/SANDERS_CECIL_ALLEN_AT_0843_17_0575_I_1_FINAL_ORDER_2037422.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CECIL ALLEN SANDERS, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0843 -17-0575 -I-1
DATE: June 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cecil Allen Sanders, Jr. , Palm Beach Gardens, Florida, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has fil ed a petition for review of the initial decision, which
dismissed his appeal from the initial decision of the Office of Personnel
Management (OPM) denying his application for a Federal Employees Retirement
System (FERS) survivor annuity for lack of jurisdi ction . On petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 appellant argues that the Board has jurisdiction to review the merits of his
application for those benefits because OPM has improperly delayed issuing a
final decision and that he is entitled to a FERS survivor annuity based on his
deceased wife’s Federal service. Petition for Review ( PFR ) File, Tab 1 at 1. In
support, the appellant submits nearly 400 pages of documents pertaining to the
decedent’s Federal employment. Id. at 2-393. He further alleges, for the first
time on review, that OPM is discriminating against him because he is
Korean -American. Id. at 1.
¶2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the ini tial 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 cons istent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when t he record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitione r 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 jurisdictional arguments and evidence submitted on
review , we AFFIRM the initial decision.
¶3 We consider t he appellant ’s new argument and evidence submitted on
petition for review to the extent that it relates to the jurisdictional issue . PFR
File, Tab 1. The appellant did not receive sufficient opportunity to meet his
jurisdictional burden below before the initial decision’s issuance . Initial Appeal
File, Tab 7, Initial Decision (ID) at 2; see Burgess v. Merit Systems Protection
Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (finding that an appellant must
3
receive explicit information on what is required to establish an appealable
jurisdictional issue) . However, the administrative judge’s error does not provide
a basis for review because she notified him of his burden in the initial decision,
thus affording him an opportunity to meet his burden on review . See Parker v.
Department o f Housing and Urban Developmen t, 106 M.S.P.R. 329 , ¶ 8 (2007)
(explaining that an administrative judge’ s failure to provide Burgess notice can be
cured if the agency’ s pleadings or the initial decision contain the notice that was
lacking, thus affording the appellant an opportunity to establish jurisdiction on
review ); Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984)
(finding that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis fo r reversal of an initial decision) .
¶4 The appellant is entitled to a jurisdictional hearing if he raises a
nonfrivolous allegation of Board jurisdiction. Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325 , 329 (1994). To establish Board jurisdiction over an OPM
action affecting an appellant’s rights or interests under FERS in the absence of an
OPM reconsideration decision, as is the case here, the appellant must show that
OPM has refused to issue that decision or excessively delayed issuing it despite
his diligent efforts . Okello v. Office of Personnel Management , 120 M.S.P.R.
498, ¶¶ 14-15 (2014); see 5 U.S.C. § 8461 (e)(1).
¶5 We find that the appellant has not met his burden. It is undisputed that
OPM did not issue a reconsideration decision on his application for a FERS
survivor annuity. The appellant’s assertions on review indicate that OPM is in
the process of reviewing his request for reconsideration. PFR File, Tab 1 at 1 .
The appellant has failed to provide any evidence showing that OPM has refused
to issue a reconsideration decision , state the duration of the purported delay , or
explain his efforts to contact OPM in the interim . Cf. Okello , 120 M.S.P.R. 498 ,
¶ 15 (finding that OPM’s failure to act for 6 years constituted an appealable
administrative action because the appellant diligently sought a f inal decision
4
during that time period) . We therefore agree with the administrative judge , ID
at 1-3, that the Board lacks jurisdiction over this appeal.
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 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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 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
6
race, color, religion, sex, national origin, or a disabling c ondition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can b e found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision be fore you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
7
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in 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.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 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
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
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 w ebsites, 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 | SANDERS_CECIL_ALLEN_AT_0843_17_0575_I_1_FINAL_ORDER_2037422.pdf | 2023-06-02 | null | AT-0843 | NP |
3,059 | https://www.mspb.gov/decisions/nonprecedential/VALENZUELA_MARIO_R_SF_1221_17_0541_W_1_FINAL_ORDER_2037460.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARIO R. VALENZUELA,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-1221 -17-0541 -W-1
DATE: June 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David L. Ross , Esquire, Bever ly Hills, California, for the appellant.
David Malone , Long Beach, California, 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
dismisse d his individual right of action appeal for lack of ju risdiction because he
failed to nonfrivolously allege that he disclosed a substantial and specific danger
to health and safety, and even assuming that he did, he failed to nonfrivolously
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and a dministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
allege that any of the individuals involved in the alleged retaliatory personnel
actions were aware of such a disclosure. 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 t he 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 review, the appellant disputes the administrative judge’ s
finding that he failed to nonfrivolously allege that his disclosur e in January 2014
regarding a portal alert system malfunction at the Los Angeles International
Airport amounted to a disclosure of a substantial and specific danger to public
health or safety. Petition for Review (PFR) File, Tab 1 at 5, 11 -13.2 In support
2 He also argues that the administrative judge erred in failing to consider his filing of an
equal employment opportunity (EEO) complaint as a protected disclosur e under
5 U.S.C. § 2302 (b)(8) , in addition to protected activity under section 2302(b)(9) .
PFR File, Tab 1 at 5 -6, 12 -13. Such an argument, however, is unavailing. An alleged
disclosur e based o n a violation o f Title VII does not amount t o a protected disclosure
because disclosures that are limited to EEO matters that are covered under 5 U.S.C.
§ 2302 (b)(1) and (b)(9) are excluded from c overage under section 2302(b)(8). See
Edwards v. Department of Labor , 2022 MSPB 9 , ¶¶ 10 -17 (clarifying the Board’s
precedent tha t oppos ing practices made unlawful by Title VII does not constitute a
protected disclosure under section 2302(b)(8)); see also Redschlag v. Department of the
Army , 89 M.S.P.R. 589 , ¶ 84 (2001) (holding that purported disclosures that involve
alleged discrimination or reprisal for engag ing in activities protected by Title VII, even
if made outside of the grievance or EEO processes, d o not constitute protected
3
of his argument, h e summarily states that he dis closed “national safety concerns
involving deficiencies in the inspection of potentially dangerous cargo, especially
where the alarm system triggering notification of potential radioactive material or
explosives was malfunction ing.” Id. at 11 . However, h e fails to explain the
nature or details of what he disclosed, or how it amounted to a disclosure of
substantial and specific danger, or identify any error in the administrative judge’s
description or analysis of his alleged disclosure. Regardless, even a ssuming that
it amounted to a protected disclosure, the appellant does not challenge the
administrative judge’s finding s that he failed to nonfrivolously allege that it was a
contributing factor in any of the agency’s alleged retaliatory personnel actions.
Although he asserts generally that the administrative judge erred in finding that
his whistleblowing was not a contributing factor in the agency’s actions, he has
not identified any specific error in the administrative judge’s analysis. Thus, he
has not established any basis for reversing the initial decision.
¶3 The appellant also disputes the administrative judge’s finding that he failed
to nonfrivolously allege that his resignation was involuntary and amounted to a
constructive removal.3 PFR File, Ta b 1 at 6, 14 -15. In support of his claim that
he involuntaril y resigned, the appellant argued below that he “would not have
resigned but for the charges against him which were manufactured and the threat
of termination which the [a]gency initially carried out by its letter of termination
effective January 20, 2016, the EXACT day that he could first retire.” Initial
Appeal File (IAF) , Tab 4 at 12 . The administrative judge found that the appellant
failed to nonfrivolously allege that the agency lacked reas onable grounds to
terminate him. IAF, Tab 7, Initial Decision (ID) at 15 -16. In particular, she
found that the agency reasonably require d him to under go a fitness -for-duty
whistleblower activity under section 2302(b)(8) because they pertain to matters of
discrimination covered by section 2302(b)(1)(A)).
3 Although t he appellant refers to his claim as an involuntary resignatio n, it appears that
he may be alleging that he involuntarily retired. PFR File, Tab 1 at 8.
4
examination after he presented medical documentation indicating that he had
certai n limitations, and as a result of its determination that he was not fit for duty,
the agency was left with little alternative but to propose the appellant’s removal
for medical inability to perform his job duties. ID at 16. She also found that ,
prior to issuing the proposed removal, the agency provided the appellant with an
opportunity to be reassigned to another position within his medical restrictions ,
but he refused to engage in the process. Id.
¶4 On review, the appellant does not dispute these findings . Rather, he
contends that the administrative judge erred in finding that he resigned in lieu of
being terminated instead of considering his claim that he resigned due to
harassment. PFR File, Tab 1 at 14 -15. He argues that the hostile work
environment and harassment were the main reason s he was forced to resign. Id.
at 15. However, the administrative judge also considered the totality of the
circumstances, including all of the agency’s alleged retaliatory actions in moving
the appellant to the day shi ft, seeking disciplinary action before the Disciplinary
Review Board, and subjecting him to a fitness -for-duty exam, but found that such
actions did not render the appellant’s working conditions so intolerable that a
reasonable perso n would have felt compe lled to resign. ID at 15 -16. Thus, the
appellant’s argument s amount to mere disagreement with the administrative
judge’s findings and do not provide a basis for reversal. See, e.g. , Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (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).
5
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate 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 is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately revi ew the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three ma in possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the da te of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.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
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by fil ing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/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). Y ou must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this ca se,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices desc ribed in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 mu st 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 yo u are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Cir cuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any o ther circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 Eve rling
Acting Clerk of the Board | VALENZUELA_MARIO_R_SF_1221_17_0541_W_1_FINAL_ORDER_2037460.pdf | 2023-06-02 | null | SF-1221 | NP |
3,060 | https://www.mspb.gov/decisions/nonprecedential/TERRAZAS_GUSTAVO_DA_0752_17_0378_I_1_FINAL_ORDER_2037494.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GUSTAVO TERRAZAS,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-0752 -17-0378 -I-1
DATE: June 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Megan Zeller , Esquire, and Bobby R. Devadoss , Esquire, Dallas, Texas, for
the appellant.
Robert H. Moore , Esquire, Del Rio, 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 initia l decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation o f 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
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 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 Regul ations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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 Board’s recent decision in Singh v. U.S. Postal Service , 2022 MSPB
15, we AFFIRM the initial decision.
¶2 In his petition for review, the appellant contends that the administrative
judge erred in denying his motion to strike the agency’s closing bri ef, which was
filed 1 day after the deadline due to the agency’s inadvertent failure to send it by
overnight delivery. Initial Appeal File (IAF) , Tabs 22-25. We discern no abuse
of discretion on the part of the administrative judge, and the appellant has not
show n that his substantive rights were adversely affected by the ruling, which
also provided him a corresponding 1-day exte nsion to file a rebuttal . IAF,
Tab 26; see Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981)
(holding that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adverse ly affected a party ’s substantive
rights ). We have considered the appellant’s other arguments on review but find
they provide no basis for overturning the administrative judge’s findings and
conclusions of law.2 See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106
2 Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issu e of whether the appellant proved that discrimination or
retaliation was a “but -for” cause of the agency’s decisions. See Pridgen v. Office of
Management and Budget , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33.
3
(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).
¶3 In addressing appellant’s claim of disparate penalties, the administrative
judge cited Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010),
for the proposition that an appellant alleging disparate treatment must show that
there is enough similarity betwe en both the nature of the misconduct and other
relevant factors to lead a reasonable person to conclude that the agency treated
similarly situated employees differently but that the Board will not have hard and
fast rules regarding the “ outcome determinati ve” nature of those factors. Id.,
¶ 15; IAF, Tab 28, Initial Decision at 20. In our recent decision in Singh ,
2022 MSPB 15, ¶ 14, the Board overruled Lewis to the extent it is contrary to
Facer v. Depar tment of the Air Force , 836 F.2d 535 (Fed. Cir. 1988), in which
our revi ewing court held that the proper inquiry is whether the agency knowingly
treated employees “in a way not justified by the facts, and intentionally for
reasons other than the efficiency of the service,” id. at 536. The Board also
reaffirmed the standard set for th in Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 (1981) , which req uires that similarly situated employees
must hav e engaged in the same or s imilar offenses, and overruled case law to the
contrary, Singh , 2022 MSPB 15, ¶ 17. In addition, the Boa rd reiterated that
consistency of the penalty with thos e imposed on other employees for the same or
similar offenses is only one of many factors to be considered in determining an
appropriate penalty and is not necessarily outcome determinative. Id., ¶ 18.
¶4 For the same reasons the administrative judge found the appellant did not
meet his burden under Lewis , we conclude he did not meet his burden under the
standard set forth in Singh . The first of the three alleged comparators, Employee
A, was suspen ded for 2 days for conduct unbecoming based on an incident in
which he was involved in a public disturbance while publicly intoxicated, was
4
taken into custody for allegedly hitting a woman with his fist, and subsequently
“made facial gestures” at the woman while in custody. IAF, Tab 21 at 38 -43.
The charges against Employee A were later dropped, however, id. at 41, and he
was not charged with any misconduct involving a lack of candor. Thus, we find
he did not engage in the same or similar conduct as the appellant. Employee B
was suspended for 30 days for lack of candor, failure to follow procedures, and
conduct unbecoming. Id. at 45 -51. However, Employee B was not charged with
any crime and also had nearly twice as many years of service as the appellan t. Id.
at 47, 49. Again, we find the alleged comparator did not engage in the same or
simi lar conduct as the appellant. In the case of Employee C, who was charged
with failure to cooperate in an official investigation, conduct unbecoming, and
failure to report missing and recovered property, the agency sustained the
proposed removal action but permitted him to return to duty pursuant to a last
chance agreement. Id. at 58. However, with exceptions not applicable here, the
Board will not require an agenc y to explain lesser penalties imposed against
employees whose charges were resolved by settlements, despite apparent
similarities in circumstances. Hulett v. Department of the Navy , 120 M.S.P.R. 54 ,
¶ 7 (2013). Thus, we agree with the administrative judge ’s conclusion that the
appellant failed to identify any proper comparator s.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following
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 c annot advise which option is most appropriate in any matter.
5
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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services 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 representativ e receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, natio nal origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information fo r U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternati vely, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such re quest with the
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representati ve receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 o f Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have rai sed
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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 f or
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
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, yo u must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availab le at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securin g pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before th e Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.
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 B oard | TERRAZAS_GUSTAVO_DA_0752_17_0378_I_1_FINAL_ORDER_2037494.pdf | 2023-06-02 | null | DA-0752 | NP |
3,061 | https://www.mspb.gov/decisions/nonprecedential/DOUGLAS_KIMBERLY_D_AT_0752_17_0134_I_1_FINAL_ORDER_2037495.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KIMBERLY D. DOUGLAS,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
AT-0752 -17-0134 -I-1
DATE: June 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa M. Ross , Esquire, Jackson, Mississippi, for the appellant.
Jennifer Spangler , Esquire, Kansas City, Kansas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has f iled a petition for review of the initial decision, which
dismissed her appeal as settled. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consisten t with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the re cord closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant filed an appeal of the agency’s action removing her from her
Associate Warden ’s Secretary position at the agency’s Bureau of Prisons . Initial
Appeal File (IAF), Tab 1 , Tab 4 at 8 . The administrative judge suspended the
appeal for 30 days to allow time for the parties to either execute a tentative
settlement they had reached or proceed with the appeal. IAF, Tab 12. Two
weeks later, t he parties returned an executed settlement agreem ent to the
administrative judge. IAF, Tab 13. The administrative judge found that the
parties freely and voluntarily entered into the settlement agreement and that the
terms of the agreement were lawful on their face. IAF, Tab 14, Initial Decision
(ID) at 1. The administrative judge therefore approved the agreement and, in
keeping with the parties’ wishes, entered it into the record for enforcement
purposes and dismissed the appeal as settled . ID at 2.
¶3 In her May 8, 2017 petition for review, the appel lant states in a sworn
declaration that she did not freely and voluntarily sign the agreement because the
administrative judge only gave her 24 hours to decide whether to accept it.
3
Petition for Review (PFR) File, Tab 1 at 7, 10.2 The agency responds in
opposition to the appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 A party may challenge the validity of a settlement agreement if she believes
that it is unlawful, involuntary, or the result of fraud or mutual mistake .
Hinton v. Department of Veterans Affairs , 119 M.S.P.R. 129 , ¶ 4 (2013). To
establish that a settlement was fraudulent as a result of coercion or duress, a party
must prove that she involuntarily accepted the other party ’s terms, circumstances
permitted no other alternative, and such circumstances were the result of the other
party’s coercive acts. Id. The party challenging the validity of the settlement
agreement bears a “heavy burden.” Id. An appellant ’s post -settlement remorse or
change of heart cannot serve as a basis for setting aside a valid settlement
agreement. Id.; Henson v. Department of the Treasury , 86 M.S.P.R. 221 , ¶ 10
(2000).
¶5 Although the appellant now claims that the administrative judg e gave her
24 hours to decide whether to accept the settlement agreement and that this
coerced her to sign the agreement , the record reflects that the parties reached a
tentative agreement in February 2017 and that about 3 weeks later, the
administrative j udge suspended case processing to afford the parties enough time
to determine how to proceed. IAF, Tab 12. Although the administrative judge
instructed the appellant to respond immediately to indicate whether she agreed to
the terms of the parties’ tenta tive agreement, he also made clear that the appellant
retained the choice to continue her appeal and he set dates for prehearing
2 We find that the petition for review was timely filed. The appellant filed the petition
for review more than 35 days after the date of issuance of the initial decision . ID at 1,
3; see 5 C.F.R. § 1201.114 (e) (setting forth the deadlines for filing a petition for
review) . However, she has submitted a sworn declaration that she received the initial
decision on April 10, 2017, more than 5 days after its issuance, and the record reflects
that she filed her petition within 30 days of her April 10, 2017 receipt of the initial
decision. IAF, Tab 15; PFR File, Tab 1; see 5 C.F.R. § 1201.114 (e), (g).
4
submissions, a prehearing conference, and a video h earing if she decided to do so .
Id.
¶6 The parties submitted the agreement on March 27, 2017 , two weeks after
the administrative judge issued his order suspending the appeal. IAF, Tab 12,
Tab 13 at 7. Save for the sworn affidavit accompanying her petition for review,
PFR File, Tab 1 at 10, nothin g in the record supports the appellant’s assertion that
she felt pressured to sign the settlement agreement. Moreover, even if she had
been given only 24 hours to make her decision whether to settle the appeal, an
approaching deadline do es not mean that t he situation wa s coercive. The agency
was under no obligation to settle the case and the record reflects that neither the
choice itself nor the circumstances under which it s offer was made were the result
of improper agency action . See Parrott v. Merit S ystems Protection Board ,
519 F.3d 1328 , 1334-35 (Fed. Cir. 2008) (declining to find that an age ncy coerced
an employee into si gning a settlement agreement when it told him he must sign it
that day or the agency would proceed with his proposed removal) . Thus, the
appellant has not shown that she involuntarily accepted the agency’s terms, that
the circumstances per mitted her no other alternative, o r that such circ umstances
were the result of the agency’ s coercive act ions. See Hinton , 119 M.S.P.R. 129 ,
¶ 4.
¶7 Accordingly, we affirm the initial decision dismissing the appeal as settled.
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 summ ary of available appeal rights, the Merit
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
6
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
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
7
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D. C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’ s
disposition of allegations of a prohibited 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.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of ap peals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower repr isal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
8
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
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 | DOUGLAS_KIMBERLY_D_AT_0752_17_0134_I_1_FINAL_ORDER_2037495.pdf | 2023-06-02 | null | AT-0752 | NP |
3,062 | https://www.mspb.gov/decisions/nonprecedential/HOBSON_FAYE_R_CH_3330_20_0418_X_1_FINAL_ORDER_2037573.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FAYE R. HOBSON,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-3330 -20-0418 -X-1
DATE: June 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
Faye R. Hobson , Clarksville, Tennessee , pro se.
Emeka Nwofili , Esquire , and Melissa Martinez , Peachtree City, Georgia,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 In a May 26, 2021 compliance initial decision, the administrative judge
found the agency in noncompliance with the Board’s February 17, 2020 final
decision in the underlying Veterans Employment Opportunities Act of 1998
(VEOA) appeal on the basis tha t the agency had not removed the incumbent ,
M.O., of the Social Studies Teacher position during its reconstructed hiring
process and had “not shown that it undertook other efforts that would qualify as a
bona fide reconstruction process.” Hobson v. Depart ment of Defense , MSPB
Docket No . CH-3330 -20-0418 -C-1, Compliance File (CF), Tab 6, Compliance
Initial Decision (CID); Hobson v. Department of Defense , MSPB Docket No. CH -
3330 -20-0418 -I-1, Initial Appeal File (IAF), Tab 66, Initial Decision (ID).3
Accordin gly, the administrative judge ordered the agency “to again reconstruct
the hiring for the position of 0220 Middle School Social Studies at
[Fort] Campbell, Referral No. 081475 in accordance with the Board’s final order
and consistent with the case -law.” C ID at 10.
¶2 The agency thereafter filed a timely motion to extend the deadline to
submit a petition for review or statement of compliance.4 Hobson v. Department
3 The administrative judge’s February 17, 2020 init ial decision in the underlying appeal
became the final decision of the Board by operation of law on March 24, 2021, because
neither party filed a petition for review. ID at 10.
4 As noted in the compliance initial decision, the Board’s regulations provide that, upon
a finding of noncompliance, the party found to be in noncompliance must do the
following:
(i) To the extent that the party decides to take the actions required by
the initial decision, the party must submit to the Clerk of the Board,
within the time limit for filing a petition for review under
§ 1201.114(e) of this part, a statement that the party has taken the
actions identified in the initial decision, along with ev idence
establishing that the party has taken those actions. The narrative
statement must explain in detail why the evidence of compliance
satisfies the requirements set forth in the initial decision.
3
of Defense , MSPB Docket No. CH -3330 -20-0418 -X-1, Compliance Referral File
(CRF), Tab 3. The Board granted the motion over the appellant’s objection and
extended the agency’s deadline to July 30, 2021. CRF, Tab 5 at 1. The agency ,
however, did not file a petition for review or a statement of compliance by the
July 30, 2021 deadline. CRF, T ab 9 at 1. Consequently , the appellant’s petition
for enforcement has now been referred to the Board for a final decision on issues
of compliance pursuant to 5 C.F.R. § 1201.183 (c)(1). See CRF, Tab 9 at 2.
¶3 On August 4, 2021, the Office of the Clerk of the Board issued an
acknowledgement order in the instant proceeding ordering the agency to submit
evidence of compliance within 15 calendar days. Id. at 3. On August 19, 2021,
the age ncy submitted its statement , in which it represented that it was in full
compliance with the compliance initial decision. CRF, Tab 10. The appellant has
submitted several filings responding to the agency’s statement of compliance.
CRF, Tabs 11, 12, and 13. For the reasons discussed below , we now find the
agency in compliance and dismiss the petition for enforcement.
BACKGROUND
¶4 This proceeding arises out of the appellant’s nonselection for a position as
a teacher, 0220 Middle School Social Studies at Fort Campbell, Referral
No. 081475 (“the Social Studies Teacher position” or “subject position” ), with
the Department of Defense Education Activity in the Americas Region (DoDEA) .
On an unspecified date, the appellant applied to DoDEA using the agency’s
(ii) To the extent that the party decides not to take all of the actions
required by the initial decision, the party must file a petition for
review under the provisions of §§ 1201.114 and 1201.115 of this part.
5 C.F.R. § 1201.183 (a)(6) . The Board’s regulations further provide that if “a party
found to be in noncompliance under paragraph (a)(5) of this section does not file a
timely pleading with the Clerk of the Board as required by paragraph (a)(6) of this
section , the findings of non compliance become final and the case will be processed
under the enforcement provisions of paragraph (c)(1) of this section.” 5 C.F.R.
§ 1201.183 (b).
4
online Employment Application System (EAS) and indicated her interest in a
variety of teaching positions within the agency . IAF, Tab 1 at 30-38. “[E]AS is a
web-based application system that the agency uses to fill educator -position
vacancies; applicants enter personal and professional information into EAS and
identify ‘teaching categories and location preferences for which they would like
to be considered.’” ID at 2.
¶5 According to the agency’s submission, t he agency does not announce
vacant positions in DoDEA pursuant to 10 U.S.C. § 2164 . CRF, Tab 10 at 2.
Instead, t o fill a vacancy for a teacher position , an agency school administrator
submits a Request for Personnel Action (RPA) to the agency’s recruitment
division. Id. at 29. Once the recruitment division receives the RPA, a human
resources (HR) staffing specialist queries EAS for qualified candidates. Id.
at 29-30. At that time, EAS performs an automated review of the applicants ’ data
and assigns a score to each applicant that cannot be “manipulated ” by the HR
staffing specialist or the applicant . Id. at 30.
¶6 An external applicant claiming veterans ’ preference or derived veterans ’
preference may submit documentation supporting the claim through EAS . ID
at 2. EAS , however, does not determine eligibility for veterans ’ preference.
CRF, Tab 10 at 30. Rather, a n HR specialist will evaluate the supporting
documentation , determine whether the applicant is eligible for veterans ’
preference , and, if so, add the appropriate amount of veteran s’ preference points
to the applicant’s EAS -assigned score . Id.
¶7 After running the EAS query, a n HR specialist will then generate a
candidate ref erral list consisting of all internal candidates —who are not ranked or
scored by EAS —and the 25 highest -scoring external candidates, listed in the
5
order of their score from highest to lowest.5 Id. The referral list will then be
provided to a selecting official for consideration . Id.
¶8 On or about October 11, 2019, the agency completed the referral process
for the subject position . ID at 2; CRF, Tab 10 at 30. The referral list contained
52 candidates, consisting of 26 internal candidates and 26 exter nal candidates.
See CRF , Tab 10 at 19-21, 30-31. The EAS algorithm assigned the appellant a
score of 45 based on her answers to the questions in the online application . Id.
at 31-32. In connection with her application , the appellant identified her husb and
by name and submitted paperwork that the administrative judge later found
established her entitlement under the VEOA to a 10 -point preference as the
spouse of a service -connected disabled veteran who has been unable to qualify for
any appointment in th e civil service or in the government of the District of
Columbia. ID at 2 -5. The agency , however, found her documentation
insufficient and thus denied her the 10 -point preference to which she was entitled.
ID at 4. Based on this decision, the appellant was erroneously ranked number 14
on the external candidates list with a score of 45, when in fact, she should have
been ranked number 9 with a score of 55 . CID at 2; CRF, Tab 10 at 31 -32.
¶9 The selecting official decided to interview two candidates for the Social
Studies Teacher position : the top -ranked external candidate who had been
assigned a score of 71; and an internal candidate , M.O., whom, per procedure,
EAS did not score . CRF, Tab 10 at 19-21, 27. The selecting official origina lly
selected the top -ranked external candidate, but he declined the offer. Id. at 31.
The selecting official then selected M.O. who accepted the offer and was
appointed to the position on February 16, 2021. Id. The agency notified the
appellant that sh e had not been selected for the position in February 2021. ID
5 The agency will refer more than 2 5 external candidates if the 25th -ranked candidate’s
score ties th at of another candidate, as occurred here. See CRF, Tab 10 at 17.
6
at 4. The appellant sought relief from the Department of Labor, and when that
effort was unsuccessful, she appealed to the Board. Id.
¶10 In the underlying appeal, the administrative judge framed the principal
issue as “whether the appellant was entitled to . . . [derive d veterans ’]
preference,” which the administrative judge determined “should be answered in
the affirmative.” ID at 5. Since the appellant had shown that the agency had not
accorded the appellant her preference rights under the competitive examination
process and given her the correct ranking , the administrative judge found that the
agency had violated the VEOA and granted her request for corrective action.6 ID
at 9. Accord ingly, the administrative judge ordered the agency to reconstruct the
hiring for the Social Studies Teacher position within 30 days of March 24, 2021.
ID at 9 -10.
¶11 On March 19, 2021, the agency notified the appellant by letter that the
agency had “recons tructed the certificate of qualified candidates” for the Social
Studies Teacher position and given her the additional 10 points to which she was
entitled. CID at 2 -3. The agency concluded that the recalculated score “did not
[a]ffect the validity of the selection made by the hiring official” in the original
hiring process because the primary selectee ( the original top-ranked external
candidate ) remained the top -ranked external applicant, while the alternate
selectee ( M.O. ) was an internal candidate (and thus, the agency could select her
without regard to veterans ’ preference) who, the agency asserted , “ranked higher
on both the original and the reconstructed list .” CID at 3.
6 It is unclear whether this approach to the issue was entirely correct because , as
discussed infra at paragraphs 19 through 23, veterans ’ preference points do not apply
when an agency selects an internal candidate for a position through merit promotion
procedures, which is effectively what occurred in this case when the agency ultimately
selected the internal candidate , M.O. , for the subject position. However, since neither
party has challenged the initial decision, the decision is the law of th e case and we
address the compliance issues under the framework set forth in the initial decision and
the CID.
7
¶12 The appellant thereafter filed a petition for enforcement, which the
administra tive judge granted. The administrative judge found that the agency’s
reconstructed hiring process was deficient in four aspects. First, the agency had
not removed the incumbent , M.O., from her role while it conducted the
reconstructed process, as require d under Board precedent. CID at 7. Second, the
agency did not show that it actually presented the reconstructed certificate of
eligible candidates to a selecting official or did anything more than seek to justify
its past actions “instead of affording th e appellant the reconstructed hiring that
she was entitled to.” CID at 8. Third, the agency’s documentation did not show,
as the agency claimed in its letter, that M.O. had a superior ranking to the
appellant, and the administrative judge noted there was “no explanation why
[M.O. ] was selected, over the appellant or anyone else.” Id. Finally, the
administrative judge found that the agency had not provided the “external
vacancy announcement or other evidence indicating the legal rules that would
apply to a lawful selection process,” and indeed, did not present evidence
regarding its supposed reconstructed hiring process generally, opting instead to
rely primarily on its “lawyers’ words .” CID at 9 -10.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶13 In its August 19, 2021 statement of compliance, the agency states that it
has complied with the final decision because the evidence shows that it removed
the incumbent , M. O., from the position, had the same selecting official review
and rely on all candidates’ files available during the original selection process,
corrected the appellant’s score, and gave the appellant an opportunity to compete
for the vacancy at issue. CR F, Tab 10 at 7 -8. In support of its statement of
compliance, the agency provide s, inter alia , the sworn declaration of an agency
Supervisory HR Specialist , id. at 28-33; a memorandum signed by the selecting
official , id. at 27; and a Notification of Perso nnel Action (Standard Form 50)
8
reflecting M.O.’s August 1, 2021 reassignment from the subject position to
another teach ing position , id. at 24 .
¶14 The Supervisory HR Specialist’s declaration explain s EAS , the agency ’s
procedures for filling teacher vacancies, and the method by which the agency
assemble d the certificate of best qualified candidates for the selecting official in
this case . The declaration further states that on August 1, 2021, the agency
reassigned M.O. from the position at issue and manually reconstructed the
certificate of eligible candidates to ensure that the applicants’ scores appeared as
they were in October 2019. Id. at 32. The Supervisory HR Specialist then
provided the reconstructed certificate to the selecting official , wh o is the same
selecting official as in the original hiring process , and instructed her to review it
and document selections as if it were the only referral received. Id. at 27, 33.
The selecting official reviewed it and returned the referral with the sel ection of
M.O . Id. at 33. The selecting official did not re -interview M.O. or conduct any
further interviews. Id. at 27. The selecting official explained that she had
selected M.O. for an interview previously because of her “experiences as
reflected on her resume. ” Id. Based on this evidence, the agency requests that
the Board find it in compliance.
¶15 The appellant disputes virtually all the agency’s evidenc e of compliance .
She broadly accuses the Supervisory HR Specialist , the selecting official , and the
agency’s representative of lying to the Board and “falsifying documents,” CRF,
Tab 11 at 10, but has offered nothing to substantiate those allegations . More
specifically, she disputes her score and the score of the top -ranked external
candidate , who she suggests has been over -rated , see id. at 5, 8-9, and alleges that
the agency “manipulates the scoring rubric for their benefit.”7 Id. at 7. She
7 The appella nt asserts that she attached documents to support her allegations of score
manipulation, including a purported submission to the MSPB dated March 19, 2021 (of
which the MSPB has no record) , but her filings do not say what she claims they say.
For example, the appellant cites to a purported “Exhibit C 1 -97,” but the Exhibit C
9
further contends that the agency has not shown how they arrived at her score and
“has not shown by a preponderance of the evidence that [M.O. ] is the most
qualified and should have been selected over all, to include the [a]ppellant.” Id.
at 9. Additionally, the appellant observes that “ [t]he [a ]gency [has] yet to show
[M.O. ’s] rating and competencies score, but continue [s] to say hers[] is higher
than the [a]ppellant’s without any proof.” Id. at 11. She also disputes whether
M.O. was, in fact, reassigned from the position at issue. Id. at 8. Finally , she
contends that the agency violated her rights under the VEOA because “[a]ppellant
Hobson at the time of the agency’s selection for [the] stated case was [a]
preference -eligible applicant and she was passed over for not one, but two
non-prefere nce applicants.” CRF, Tab 12 at 5. The appellant requests sanctions
for the agency’s alleged noncompliance . CRF, Tab 11 at 13-14.
ANALYSIS
¶16 “The Board has jurisdiction to consider an appellant’s claim of agency
noncompliance with a Board order.” Phillips v. Department of the Navy ,
114 M.S.P.R. 19 , ¶ 7 (2010) . The Board’s power to compel compliance with its
orders “is broa d and far -reaching and functions to ensure that . . . applicants for
employment are returned to the status quo ante or the position that they would
have been in had the unlawful agency action not occurred.” Id. The agency bears
the burden of proving comp liance by a preponderance of the evidence. 5 C.F.R.
§ 1201.183 (d).
¶17 Unde r the VEOA, an appellant whose veterans ’ preference rights were
violated is entitled to a selection process “con sistent with law.” Weed v. Social
attached to her response contains only 3 pages and appears to concern a third party’s
EEO complaint and alleged involuntary resignation . See CRF, Tab 11 at 8 and 83-86.
The Board rev iewed the appellant’s exhibits attached to her submissions in this
proceeding and found nothing therein to support her claims that the agency manipulates
EAS ’s score assignments .
10
Security Administration , 110 M.S.P.R. 468 , ¶ 6 (2009). Critically, the outcome of
“a lawful selec tion process may benefit individuals other than the appellant,” id.
¶ 12, because an appellant is generally not entitled to a position with the agency.
See Phillips , 114 M.S.P.R. 19 , ¶ 21; Weed , 110 M.S.P.R. 468 , ¶ 6; see also
Scharein v. Department of the Army , 91 M.S.P.R. 329 , ¶ 10 (2002) (“The VEOA
does not guarantee a preference eligible a position but only an opportunity to
compete with the other candidates on the certificate of eligibles.”) . Accordingly,
to establish compliance, “the agency must show that its reconstruction of the
selection proce ss” for the position at issue “was in accordance with applicable
veterans’ preference laws and that any subsequent appointment . . . was the result
of fair and lawful consideration of the pool of candidates, including the appellant,
under an appropriate re construction.” See Phillips , 114 M.S.P.R. 19, ¶ 7.
¶18 A lawful reconstructed selection process requires the agency to begin by
removing the improperly appointed selectee from the subject position during the
reconstruction. E.g., Weed , 110 M.S.P.R. 468, ¶ 13. Further, to the extent
possible, the selecting official should be the same person as in the original hiring
process and should base their decision on the “circumstances at the time of the
original selections, including fill ing the same number of positions during the
reconstructed process as [the agency] did in the original one.” Phillips ,
114 M.S.P. R. 19, ¶ 19.
¶19 Once the agency has recreated the vacancy, the “agency has the discretion
to fill [the] 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) . “Merit promotion procedures constitute an authorized method for
evaluating and selecting from among internal candidates, and competitive
examination is an authorized method for evaluating and selecting from among
external candidates.” Id. (internal citati ons omitted). An agency may consider
both internal and external candidates for the same position simultaneously, and
“this results in both external and internal competitions.’” Id. When an agency
11
accepts applications both from external and internal appl icants , the agency must
provide a preference eligible the right to compete under merit promotion
principles as well . 5 U.S.C. § 3304 (f)(1). Regarding merit promotion
competition, we have observed :
Requirements governing merit promotion competition . . . differ
significantly from those applicable to open competitive
examinations. The regulatory provisions governing merit
promotion programs do not require selection from among the
three top -ranked candidates; instead, they provide for selection of
any of a group of ‘best qualified’ candidates . . . . These
authorities also do not provide for the addition of preference
points or for the other special preference -related
procedures . . . [required for] open competitive examinations. In
fact, regulations governing merit promotions seem to prohibit
such preferences. Finally, the Board has held that employees are
not entitled to veteran preference under merit promotion
regulations.
Brandt v. Department of the Air Force , 103 M.S.P.R. 671 , ¶ 16 (2006) (internal
citations omitted).
¶20 We are satisfied that the agency has shown by prepo nderant evidence that
its reconstructed selection process was in accordance with law. The agency has
presented documentary evidence that it removed M.O. from the subject position
by reassigning her to a different teaching position on August 1, 2021 , CRF,
Tab 10 at 23 -24, thereby creating a vacancy in the subject position.8 CRF, Tab 10
at 22. It then calculated the appellant’s correct score and ranking on the external
candidate list by adding 10 points representing the appellant’s derived veterans ’
prefer ence to her EAS -assigned score of 45 . See id. at 16. The agency then
8 Under our precedent s, it was not necessary for the agency to remove M.O. from
Federal service altogether to conduct a bona fide reconstruction ; rather, it was sufficient
to reassign her to another position within the agency . See, e.g. , Weed , 110 M.S.P.R.
468, ¶ 13 (“[T]he agency need not remove the individual from the federal service, but
need only remove the individual from the position he or she holds as the result of the
improper appointment.” ).
12
elected not to hire from the external list at all and instead decided to select an
applicant from the internal list, see id. at 17, which was lawful. See, e.g. , Joseph ,
505 F.3d at 1384 (affirming the Board ’s conclusion that the agency did not
violate VEOA where it gave the appellant 10 -point veterans ’ preference but
selected the internal candidate because “ no statute or regulat ory
provision . . . required the [agency], once it undertoo k to inaugurate the selection
process by following the alternative procedure, to limit itself to the competitive
examination process in making its final selection ”).
¶21 Thereafter, the same selecting official as in the original hiring process
considered the applications of the candidates on the certificate of best qualified
candidates , including the appellant’s, and selected M.O. based on her interview
and her experiences as reflected on her resume . CRF, Tab 10 at 27. Although the
reconstructed process did not alter the outcome, we find that the agency has
shown that it gave the appellant a bona fide opportunity to compete for the
subject position, which is what the VEOA requires. See, e.g. , Dean v. Consumer
Product Safety Commission , 108 M.S.P.R. 137 , ¶ 11 (2008) (finding no violation
of the applicant’s preference rights where he was placed on the referral list for
competitive and merit p romotion announcements, although he was not selected to
interview ); Brandt , 103 M.S.P.R. 671, ¶ 23 (same).
¶22 The appellant’s challenges to the agency’s evidence of compliance are
unavailing. Contrary to the appellant’s assertions, the agency has shown how it
arrived at her pre-veterans ’ preference score of 45: the EAS algorithm assigned it
based on her answers to application questions. The appellant has not presented
any evidence that would tend to show that the agency manipulated the EAS
algorithm to depress her score or to elevate others’ scores . While the appellant is
correct that the selecting official ref erred to M.O. as having “high scores ,” see
CRF, Tab 10 at 27, despite there being no evidence in the record regarding those
scores, the referral list and the Supervisory HR Specialist’s sworn declaration
13
both confirm that M.O. did not, in fact, receive a s core because she was an
internal candidate appointed under merit promotion procedures.
¶23 Although the appellant contends that the agency has not proven that M.O. is
“the most qualified” applicant, see CRF, Tab 11 at 9, the agency was not required
to prove t hat; rather, her selection was in accordance with law so long as she was
“among a group of best qualified candidates ,” see 5 C.F.R. § 335.103 (b)(4) ,
which she was by virtue of being on th e referral list of qualified candidates along
with the appellant and the other 5 0 applicants . See CRF, Tab 10 at 15 -17.
Finally, the appellant’s contention that she was “passed over” for M.O. , who is
not preference eligible, is inapposite because veterans ’ preference rules such as
the prohibition on passing over a preference eligible without dispensation from
the Office of Personnel Management , see 5 U.S.C. § 3318 (c)(1) , do not apply to
merit promotions. See Sherwood v. Department of Veterans Affairs , 88 M.S.P.R.
208, ¶ 10 (2001) (“The statutes that may have given the appellant an advantage in
a competitive examination were not violated because those statutes did not apply
to the selection at issue.”).
¶24 For the reasons stated above, we find the agency in compliance and dismiss
the petition for enforcement. This i s the final decision of the Merit Systems
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE OF APPEAL RIG HTS9
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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 information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
15
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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 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 229 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,
16
and your representative receives this decision be fore you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office o f Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have rai sed
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8) , or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition fo r
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
17
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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.
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.
18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOBSON_FAYE_R_CH_3330_20_0418_X_1_FINAL_ORDER_2037573.pdf | 2023-06-02 | null | CH-3330 | NP |
3,063 | https://www.mspb.gov/decisions/nonprecedential/DOE_JOHN_DA_0752_15_0420_A_1_FINAL_ORDER_2036927.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN DOE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0752 -15-0420 -A-1
DATE: June 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracie Jackson , Esquire, Houston, Texas, for the appellant.
Jeffrey T. Reeder , Esquire , Dallas, Texas, for the agency.
Thomas Herpin , Esquire, 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 addendum initial decision,
which awarded the appellant $28,104.92 in attorney fees and costs . In its petition
for review, the agency argues that, under the guidance provided by the U.S.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
Supreme Court’s decision in Hensley v Eckerhart , 461 U.S. 424 (1983), the
attorney fees award should be reduced on two grounds: (1) the appellant failed to
prove that the work performed on his involuntary retirement appeal , on which he
was not successful, substantially advanced the appellant’s interest in his appeal of
a denial of a within -grade increase, on which he was successful; and (2) the
appellant failed to prove the relief granted was subs tantial in comparison to the
relief requested. 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 interpreta tion 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 ab use of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the agency has not
established any basis under section 1201.11 5 for granting its petition for review.
Therefore, w e DENY the petition for review . Except as expressly MODIFIED to
find that fees are awarded under 5 U.S.C. § 7701(g)(2) , we AFFIRM the
addendum initial decision.
¶2 The administrative judge found that fees were warra nted under 5 U.S.C.
§ 7701 (g)(1) , which authorizes the award of fees under an interest of justice
standard and does not allow for an award of costs . However, the administrative
judge found during the merits phase of the appellant’s appeal that the appellant
established that the agency had discriminated against him on the basis of sex,
which is prohib ited under Title VII of the Ci vil Rights Act of 1964 . Doe v.
Department of Veterans Affairs , MSPB Docket No. DA-0752 -15-0420 -I-1, Initial
Decision at 19 -25 (Sept. 26, 2016) . Whe n there is a finding of unlawful
3
discrimination, the award of attorney fees is properly made under 5 U.S.C.
§ 7701 (g)(2). Specifically, that provision states that if an employee “is the
prevailing party and the decision is based on a finding of discrimination
prohibited under section 230 2(b)(1) of [Title 5], the payment of attorney fees
shall be in accordance with the standards prescribed under section 706(k) of the
Civil Rights Act of 1964 (42 U.S.C. § 2000e -5(k)).” 5 U.S.C. § 7701 (g)(2). The
provision at 42 U.S.C. § 2000e -5(k) states that the court, “in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee . . . as part of the
costs . . . .” As noted, the Board is provi ded with the authority to award fees
under that provision by 5 U.S.C. § 7701 (g)(2). Thus, fees may be awarded by the
Board under section 7701(g)(2) if the appellant is the prevailing party. There is
no application of the interest of justice standard to such a fee award. Th erefore ,
the administrative judge erred in determining whether attorney fees were
warranted under the interest of justice standard of section 7701(g)(1).
¶3 Despite the error dis cussed above, the administrative judge found that the
appellant met the interest of justice standard entitling him to fees and also
acknowledged that the appellant was entitled to costs under section 7701(g)(2).
Thus, notwithstanding the administrative ju dge’s error in determining the fee
award under the interest of justice standard of section 7701(g)(1), the appellant
has received all the fees and costs to which he was entitled under the more
inclusive standard of section 7701(g)(2). Accordingly, we find that the
administrative judge’s error did not harm the appellant’s substantive rights and
thus is not a basis to reverse the initial decision. 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 fo r reversal of an
initial decision).
4
ORDER
¶4 We ORDER the agency to pay the attorney of record $28,104.92 in fees and
costs . The agency must complete this action no later than 20 days after the date
of this decision. Title 5 of the United States Code, sec tion 1204(a)(2) ( 5 U.S.C.
§ 1204 (a)(2)).
¶5 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 attorney to provide all necessary information that the agency requests to help
it carry out the Board ’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶6 No later than 30 days after the agency tells the appellant or the attorney that it
has fully carried out the Board ’s Order, th e appellant or the attorney may file a
petition for enforcement with the office that issued the initial decision on this
appeal, if the appellant or the attorney believes that the agency did not fully carry
out the Board ’s Order. The petition should conta in 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 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 appro priate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
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
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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If 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.
6
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
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may 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.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
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the 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 | DOE_JOHN_DA_0752_15_0420_A_1_FINAL_ORDER_2036927.pdf | 2023-06-01 | null | DA-0752 | NP |
3,064 | https://www.mspb.gov/decisions/nonprecedential/RIOS_EDITH_M_NY_0752_15_0229_I_1_FINAL_ORDER_2037080.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDITH M. RIOS,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
NY-0752 -15-0229 -I-1
DATE: June 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edith M. Rios , Guaynabo, Puerto Rico, pro se.
Katherine Meng , Katherine Stewart , and Lillian Monfort , 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 involuntary retirement appeal for lack of jurisdiction . Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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 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 to address the appellant’s claim that
the agency denied her adequate notice and opportuni ty to respond to the
management -directed reassignment (MDR) and motion to exclude evidence , we
AFFIRM the initial decision.
¶2 The appellant argues that the Board has jurisdiction over her involuntary
retirement appeal. Petition for Review ( PFR ) File, Tab 1 at 1-3. She disagrees
with the administrative judge’s findings that she failed to prove that he r
retirement was involuntary under the unsustainable threatened action theory. Id.
at 3-5. She further argues that the administrative judge erred in finding that the
agency did not discriminate against her based on her age. Id. at 4, 8-9. She also
prov ides a list of prohibited personnel practice provisions and merit systems
principles and asserts, without argument, that the agency violated each provision.
Id. at 1-2. These allegations do not provide a basis for review . See 5 C.F.R.
§ 1201.115 .
¶3 We also consider the appellant’s argument s that the agency failed to
properly notify her of the selection criteria, to provide her enough time to respond
and submit ev idence indicating that she was the most senior Industry Operations
Investigator (her former position) before issuing the MDR, or to suspend the
MDR order pending an investigation into her allegations of discrimination and
3
claims of error. PFR File, Tab 1 at 10. Although the appellant raised those
allegations below, the administrative judge did not consider them as a challenge
to the legitimacy of the agency’s action. Initial Appeal File ( IAF), Tab 7,
Exhibit B at 3, 6-7, Tab 19 at 7 -8; see generally Jord an v. Office of Personnel
Management , 108 M.S.P.R. 119, ¶ 19 (2008) (explaining that the Board constr ues
pro se pleadings liberally) .
¶4 An agency must ensure that an MDR was based on a legitimate management
reason and that the employee was given adequate notice of the reassignment. See
generally Krawchu k v. Department of Veterans Affairs , 94 M.S.P.R. 641 , ¶ 9
(2003) (explaining that to take an adverse action based upon an employee’s
failure to accept a n MDR, the agency must show that the reassignment was based
upon a legitimate management reason, the employee was given adequate notice of
the reassignment, and the employee refused to accept the reassignment). The
administrative judge found that the MDR was taken for bona fide management
reasons; we have no basis to disturb that finding. IAF, Tab 30, Initial Decision
(ID) at 8-13. We further find that the appellant also received adequate notice of
her MDR because the agency advised her that she would be reassigned from the
Puerto Rico Satellite Office to the Miami VI Field Office nearly 4 months before
the December 14, 2014 effective date of her reassignment. See Wear v.
Department of Agriculture , 22 M.S.P.R. 597, 598 -99 (1984) (notifying an
employee of the MDR 1 month before the effective date of the reassignment is
adequate) ; O’Connor v. Department of the Interior , 21 M.S.P.R. 687 , 689 (1984)
(interpreting adequate notice as having sufficient time between when the
employee is notified of the MDR and his reporting date) . The appellant has not
shown that she was entitled to any f urther notice or opportunity to respond. See
generally 5 U.S.C. § 7513 (granting the enumerated statutory due process rights
only to those adverse actions listed under 5 U.S.C. § 7512 , of which a n MDR
without a loss in grade or pay i s not a part). Thus, the appellant has not shown
that the administrative judge’s failure to consider those claims affected her
4
subs tantive rights . Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984) ( explaining that an adjudicatory error that is not pre judicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
¶5 Finally , the appellant alleges that the administrative judge erred by
considering evidence relating to her personal and family situation that she
requested be excluded from the record . PFR File, Tab 1 at 7 -8. Although the
appellant raised her apparent motion in limine as an objection to the status
conference summary , IAF, Tab 22 at 5 , the administrative judge did not rule on
her motion and instead addressed th at ev idence in the initial decision, ID at 23.
To the extent this was error, it is not reversible. Because the administrative judge
found that the appellant’s personal considerations for refusing the reassignment
did not factor into whether the agency’s actions were coercive , there is no
indication that she would have reached a different result had the evidence been
removed from the record. ID at 23; see Renville v. Department of Health and
Human Services , 21 M.S.P.R. 737 , 739 -40 (1984) (finding that the appellant’s
retirement was not coerced because his reasons for retiring in lieu of being
reassigned were personal and not attributable to any agency action) , aff’d ,
790 F.2d 93 (Fed. Cir. 1986) (Table) . Accordingly, we find that the appellant has
not shown that she was prejudiced by that potential error. Karapinka v.
Department of Energy , 6 M.S.P.R. 124 , 127 (1981) (finding that the
administrative judge’s procedural error was of no legal consequence unless it was
shown to have adve rsely affected a party’s substantive rights).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 appropri ate
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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
6
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
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed th rough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you recei ve
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Was hington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5 SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no ch allenge 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
8
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 Circui t, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor wa rrants that
any attorney will accept representation in a given case.
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | RIOS_EDITH_M_NY_0752_15_0229_I_1_FINAL_ORDER_2037080.pdf | 2023-06-01 | null | NY-0752 | NP |
3,065 | https://www.mspb.gov/decisions/nonprecedential/SHANNON_BAILEY_LAURIE_PH_0714_21_0012_I_1_FINAL_ORDER_2037115.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAURIE SHANNON -BAILEY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0714 -21-0012 -I-1
DATE: June 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ibidun Roberts , Esquire, Columbia, Maryland, for the appellant.
Mark E. Frassinelli , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are 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
¶2 After the filing of the petition for review, the appellant submitted a
document entitled “SETTLEMENT AGREEMENT ,” signed by both parties on
May 18, 2023 . PFR File, Tab 19 at 4 -10. The document provides, among other
things, that the appellant will withdraw any appeals with the Board, including
this one, id. at 4, in exchange for certain promises made by the agency , id. at 5-6.
The parties have further agreed for the agreement to be entered into the record
for enforcement. Id. at 3, 6 -7.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they under stand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into i t. 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 . We further find that the agreement is lawful on its
face and freely entered into, and we accept the settlement agreemen t into the
record for enforcement purposes. 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.
¶5 This is the final decision of the Me rit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
3
promptly filing a petition for enforcement with the office that issued the initial
decision on this appea l. 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 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
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 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 informati on about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pra ctice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono r epresentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revi ew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If s o, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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
5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling c ondition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can b e found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision be fore you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you h ave raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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 230 2(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 peti tion 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 Circu it, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is av ailable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
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.
7
If you are interested in se curing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befo re the 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 | SHANNON_BAILEY_LAURIE_PH_0714_21_0012_I_1_FINAL_ORDER_2037115.pdf | 2023-06-01 | null | PH-0714 | NP |
3,066 | https://www.mspb.gov/decisions/nonprecedential/FOSTER_FLOURNOY_YOLANDA_A_AT_0752_17_0479_I_1_FINAL_ORDER_2036430.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
YOLANDA A. FOSTER -FLOURNOY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -17-0479 -I-1
DATE: May 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl Hudson , Atlanta, Georgia, for the appellant.
Roderick D. Eves , 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 initial decision, w hich
dismissed her removal appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneo us 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 i nvolved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Co de of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F. R.
§ 1201.113 (b).2
¶2 On review, the appellant again argues that she was entitled to leave under
the Family and Medica l Leave Act (FMLA) on the dates listed in the agency’s
removal notice, and that her 404.5 hours of administrative leave should be
counted tow ard the 1,250 hours of service required for FMLA eligibility. See
29 U.S.C. § 2611 (2); 29 C.F.R. § 825.110 . In support of he r position, she cites
Ricco v. Potter , 377 F.3d 599 (6th Cir. 2004), in which the U.S. Court of Appeals
for the Sixth Circuit held that time that an employee would have worked but for
an unlawful termination may count toward the 1,250 hours of service
requirement. Id. at 605 -06; but see Plumley v. Southern Container , Inc., 303 F.3d
364, 372 (1 st Cir. 2002) (holding that hours of service “include only those hours
actually worked in the service and at the gain of the em ployer” ); Hamilton v. U.S.
Postal Service , 84 M.S.P.R. 635, ¶ 16 (1999) (citing Robbins v. Bureau v. Nat’l
Affairs, Inc. , 896 F. Supp. 18, 20 -21 (D.D.C. 1995) ).
2 After the record closed on review, the appellant submitted a designation of
representative form and a motion to waive the deadline for filing her petition for
review. Petition for Review File, Tab 4. Because the administrative judge correctly
dismissed this appeal for lack of jurisdiction, we find it unnecessary to resolve the
apparent untimeliness of the appellant’s petition for review.
3
¶3 While we generally are bound to follow decisions by the U.S. Court of
Appeals for the Federal Circuit, we generally are not bound to follow decisions
by other circuit courts, though they may serve as persuasive authority. Morris v.
Department of the Navy , 123 M.S.P.R. 662, ¶ 15 n.12 (2016) . Assuming for the
sake of argument that we would adopt the reasoning of Ricco in an appropriate
case, the case before us is distinguishable, as the appellant has not shown that her
placement on administrative leave was the result an unlawful termination.
Rather, by entering into the last chance agreemen t, she agreed that the May 6,
2016 removal action was “affirmed as just and proper,” and waived her right to
appeal it. Initial Appeal File , Tab 4 at 85. Even under Ricco , the appellant’s
subjective belief that the termination was improper would not supp ort a finding
that she was entitled to FMLA credit for the 404.5 hours of administrative leave.
See Pirant v. U.S. Postal Service , 542 F.3d 202 , 207-08 (7 th Cir. 2008). Thus, we
find Ricco does not compel a different result in this case.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of ava ilable appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall wit hin their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the a ppropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by 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, 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, the n you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you m ay be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at thei r respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal E mployment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) ot her than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. 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.
Contact information for the courts of appeals can be 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 | FOSTER_FLOURNOY_YOLANDA_A_AT_0752_17_0479_I_1_FINAL_ORDER_2036430.pdf | 2023-05-31 | null | AT-0752 | NP |
3,067 | https://www.mspb.gov/decisions/nonprecedential/SKEEN_SARAH_SF_1221_17_0579_W_1_FINAL_ORDER_2036467.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SARAH SKEEN,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
SF-1221 -17-0579 -W-1
DATE: May 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sarah Skeen , Sacramento, California, pro se.
Courtney Gianturco , Lakewood, Colorado, for the agency.
Silvio Jose Morales , Baltimore, Maryland, 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 as untimely filed.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the cour se 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 th e petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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 argues on review that her IRA appeal should be considered
timely because she received the Office of Spe cial Counsel’ s close -out letter later
than presumed by the agency due to out -of-town travel for a medical appointment
and training that was directly related to her position with the agency. Petition for
Review File, Tab 1 at 5 -6. We have considered the a ppellant’s argument on
review and find that she has not provided any information that would extend the
filing deadlin e pursuant to 5 C.F.R. § 1209.5 (a)(1) or that would warrant
equitable t olling of the statutorily imposed filing deadline. See 5 U.S.C.
§ 1214 (a)(3)(A)(ii); Heimberger v. Department of Commerce , 121 M.S.P.R. 10,
¶¶ 9-10 (2014); 5 C.F.R. § 1209.5 (b). Further, even considering the appellant’s
reasons for her travel, she has failed to show that she diligently pursued her rights
upon returning from travel and receiving her mail or that she was unable to make
a timely filing. See 5 C.F.R. § 1209.5 (b).
¶3 Accordingly, we deny the petition for review and affirm the initial decision.
3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of h ow courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Fai lure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have q uestions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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 w hich option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pro bono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or i n part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federa l Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry 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
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 b e found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision be fore you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 peti tion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websi te, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representati on for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed throug h 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 | SKEEN_SARAH_SF_1221_17_0579_W_1_FINAL_ORDER_2036467.pdf | 2023-05-31 | null | SF-1221 | NP |
3,068 | https://www.mspb.gov/decisions/nonprecedential/PHILLIPS_LISA_A_NY_0752_18_0003_I_1_FINAL_ORDER_2036509.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA A. PHILLIPS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -18-0003 -I-1
DATE: May 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa A. Phillips , East Orange, Ne w Jersey, pro se.
Paul V. Usera , Esquire, Bedford, Massachusetts, 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 removal appeal as untimely filed without good cause shown . On
petition f or review, the appellant raises arguments on the merits of the appeal ,
and she claims that her appeal was timely filed . Petition for Review (PFR) File,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB ca se law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opi nion and 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
Tab 1 at 1-2. Generally, we grant pe titions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the p etition for review and AFFIRM the initial decision,
which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
¶2 With her petition for review, the appellant has submitted a copy of the
initial d ecision and documentation that wa s a part of the record before the
administrative judge. PFR File, Tab 1 at 17, 42 -61; Initial Appeal File (IAF) ,
Tab 1 at 20-25, 28; see Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256
(1980) (finding that evidence that is already a part of the record is not new). In
addition, the appellant has submitted documentation for the first time on revi ew.
PFR File, Tab 1 at 3-16, 18 -41. We decline to consider such documentation
because the appellant has failed to explain why she was unable to provide such
evidence before the record closed despite her due diligence. See Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (finding that the Board generally
will not consider evidence submitted for the first time with the petition for revi ew
absent a showing that it was unavailable before the record was closed despite the
party’s due diligence) .
¶3 After considering the appellant’s arguments on review, we discern no
reason to disturb the administrative judge’s well -reasoned findings that the
3
appellant’s appeal was untimely filed and that she failed to show good cause to
excuse her untimely filing . PFR File, Tab 1 at 1 -2; IAF, Tab 13, Initia l Decision
at 3-6; see 5 C.F.R. § 12 01.56 (b)(2)(i)(B) (providing that an appellant bears the
burden of proving by preponderant evidence the timeliness of her appeal) ; see
also 5 C.F.R. § 1201.22 (c) (explaining that the Bo ard will dismiss an untimely
filed appeal unless a good reason for the delay is shown) . Moreover, we find that
the appellant’s arguments on the merits of the appeal are irrelevant to the
dispositive timeliness issue , and thus, they provide no reason to di sturb the initial
decision . PFR File, Tab 1 at 1 -2.
¶4 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 to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fa ll within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of 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
5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after y ou
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your r epresentative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, exclu ding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your repres entative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
6
If you sub mit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposi tion of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 r eview of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicia l review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub . L. No. 115 -195,
132 Stat. 1510.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | PHILLIPS_LISA_A_NY_0752_18_0003_I_1_FINAL_ORDER_2036509.pdf | 2023-05-31 | null | NY-0752 | NP |
3,069 | https://www.mspb.gov/decisions/nonprecedential/TERWILLIGER_MARSHANN_AT_3443_16_0622_I_1_FINAL_ORDER_2036520.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARSHANN TERWILLIGER ,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-3443 -16-0622 -I-1
DATE: May 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marshann Terwilliger , Moncks Corner, South Carolina, pro se.
Riva A. Parker , 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 her appeal as barred by the doctrine of collateral estoppel. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findi ngs of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the i nitial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due dilige nce, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, w e 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 Upon her June 1991 resignation from the agency , the appellant requested
and received a refund of her retirement contributions. Terwilliger v. Merit
Systems Protec tion Board , 638 F. App’x 1010 (Fed. Cir. 2016) ; Initial Appeal
File (IAF), Tab 4 at 17 -22. She resumed employment with the agency in
October 2004 and, after submitting an application to redeposit the refunded
retirement deductions, she began to repay them . Terwilliger , 638 F. App’x
at 1010. In 2006 , she received benefit estimates erroneously indicating that she
had received credit for the service covered by those deductions . Id. The Office
of Personnel Management (OPM) and the agency then mistakenly advised her that
she would be better served by taking an actuarial reduction when she retired
instead of continuing to repay the deductions and accrued interest and, based on
that advice, she ceased making the redeposit payments. Id. at 1010 -11. The
appell ant later learned that she would not receive credit for the period covered by
her refunded retirement contributions unless she repaid them with interest before
she retired. Id. at 1011. She then filed several appeals regarding the repayment
of her retire ment contributions , including a 2014 Board appeal against the
3
agency , MSPB Docket No. AT-3443 -15-0037 -I-1, which the administrative judge
dismissed for lack of jurisdiction and the U.S. Court of Appeal s for the Federal
Circuit affirmed . Id. at 1010 -12. In the present appeal , the appellant similarly
challenges the repayment of her retirement contributions and seeks to hold the
agency responsible for its error in advising her to cease making redeposit
payments and instead take an actuarial deduction at ret irement. IAF, T ab 1
at 4-5. She did not request a hearing. Id. at 2.
¶3 The agency filed a motion to dismiss the appeal as barred by the doctrine of
collateral estoppel. IAF, Tab 4. The appellant filed a response to the agency’s
motion and the administ rative judge issued a jurisdictional order advising the
parties that the appeal may be barred by the doctrine of collateral estoppel and
ordering the appellant to file a response on the applicability of the doctrine here .
IAF, Tabs 5 -6. In response to th e administrative judge’s order, the appellant
requested that her claim be heard as a constructive adverse action. IAF, Tab 7.
The administrative judge subsequently gave the appellant notice of the elements
and burdens of establishing jurisdiction over a constructive adverse action. IAF,
Tab 8. In her response, the appellant conceded that the hardship placed on her by
the agency’s actions does not meet the definition of a constructive adverse action,
with the possible exception of a reduction in pay. IA F, Tab 9 at 4.
¶4 The administrative judge dismissed the appeal as barred by the doctrine of
collateral estoppel, finding that the jurisdictional issue in this appeal was actually
litigated in the appellant’s previous appeal, that the determination on the
jurisdictional issue was necessary to the resulting judgment, and that the
appellant had a full and fair opportunity to litigate the issue in the prior action.
IAF, Tab 10, Initial Decision (ID) at 5 -6. The administrative judge also
determined that the ap pellant failed to establish jurisdiction over her appeal as a
constructive adverse action, finding no evidence that her pay had been reduced.
Id.
4
¶5 In her petition for review, the appellant does not contest the administrative
judge ’s finding s that her app eal is barred by the doctrine of collateral estoppel
and is not a constructive reduction in her pay. Petition for Review (PFR) File,
Tab 1. She instead requests that the Board reopen her appeal to hold the agency
accountable for its error. Id. The agency did not respond.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 Collateral estoppel, or issue preclusion, is appropriate when : (1) an issue is
identical to that involved in the prior action ; (2) the issue was actually litigated in
the prior action ; (3) th e determination on the issue in the prior action was
necessary to the resulting judgment ; and (4) the party against whom issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party to the earlier action or as one whose interests were
otherwise fully represented in that action . Hardy v. U.S. Postal Service ,
104 M.S.P.R. 387, ¶ 13, aff’d , 250 F. App’x 332 (Fed. Cir. 2007) . Collateral
estoppel may bar a party from relitigating an issue in a second action even when ,
as here, the prior appeal was dismissed for lack of jurisdiction. Noble v. U.S.
Postal Service , 93 M.S.P.R. 693, ¶ 8 (2003).
¶7 Because , as set forth below, we find that all of the required elements for
application of the doctr ine of collateral estoppel are present in this appeal , we
agree with the administrative judge ’s determination that the doctrine of collateral
estoppel bars the appellant from relitigating the jurisdictional issue . First, as the
administrative judge correc tly found, the issue in this appeal, i.e., jurisdiction
over the appellant’s claim that the agency’s administrative error requires it to pay
a redeposit of retirement contributions and interest to OPM on her behalf, is
identical to the one involved in the previous action. ID at 4 -5; see T erwilliger ,
638 F. App’x at 1012. Second, the jurisdictional issue was actually litigated in
the earlier appeal. Terwilliger , 638 F. App’x at 1012 ; see Fisher v. Department
of Defense , 64 M.S.P.R. 509 , 514 (1994) ( finding that the actually litigated
5
criterion requires that the issue be contested by the parties and resolved by an
adjudicator). Third, the Board’ s determination that it lacked jurisdiction in the
earlier appeal was its sole justification for dismissing the first appeal, i.e., it was
necessary to the final judgment. Terwilliger , 638 F.App’x at 1012. Fourth, the
appellant, though pro se, had a full and fair opportunity to litigate the
jurisdictional issue in the earlier appeal. See Fisher , 64 M.S.P.R. at 515 (finding
that a party ’s pro se status does not preclude the application of collateral estoppel
when the party had a full and fair opport unity to litigate the issue in question ).
¶8 Accordingly, we affirm the administrative judge’s finding that the appeal is
barred by the doctrine of collateral estoppel and the Board, therefore, is precluded
from examining the appellant’s arguments concernin g the agency’s errors related
to her retirement contributions .
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 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.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
6
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
7
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, 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, the n you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you m ay be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018 , permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TERWILLIGER_MARSHANN_AT_3443_16_0622_I_1_FINAL_ORDER_2036520.pdf | 2023-05-31 | null | AT-3443 | NP |
3,070 | https://www.mspb.gov/decisions/nonprecedential/CARDONE_OLIVIA_LEE_DC_0752_17_0722_I_1_FINAL_ORDER_2036539.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
OLIVIA LEE CARDONE,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DC-0752 -17-0722 -I-1
DATE: May 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristen Farr , Esquire, and Rosemary Dettling , Esquire, Washington, D.C.,
for the appellant.
Steve Roque , 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 her removal based on her failure to maintain a security clearance. On
petition for review, the appellant continues to argue that the agency should be
equitably estopped from removing her “in the interest of justice.” She also claims
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
that the administrative judge prejudicially excluded certain witnesses and
evidence concerning alleged representations made by her supervisor and the
feasibility of a potential reassignment . Generally, we gr ant 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 th e law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The administrative judge found, and the appellant does not d ispute, that
there is no policy, statute, or regulation requiring the reassignment of an agency
employee who ha s failed to maintain a security clearance . Initial Appeal File,
Tab 16, Initial Decision (ID) at 5, 12. The administrative judge therefore
correctly determined that the Board does not have the authority to review the
appellant’s argument that the agency should be equitably estopped from removing
her given her supervisor’s alleged misrepresentations . ID at 11-12; see Griffin v.
Defense Mapping Ag ency , 864 F.2d 1579 , 1580 -81 (Fed. Cir. 1989) (finding that,
in the absence of a statute, regulation, or policy mandating the transfer or
reassignment of an employee who is denied a security clearance, “the Board has
no role ” in reviewing whether an employee should have been reassigned instead
of rece iving an adverse action) . In this regard, we find no abuse of discretion by
the administrative judge when she excluded testimony or evidence relating to this
3
argument. See Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48, ¶ 12
(2004) (finding that, to obtain reversal of a n initial decision on the ground that
the administrative judge abused his discretion in excluding evidence, the
petitioning party must show on review that relevant evidence, which could have
affected the outcome, was disallowed) , aff’d , 121 F. App’x 865 (Fed. Cir. 2005) ;
Franco v. U.S. Postal Service , 27 M.S.P.R. 322 , 325 (1985) .
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
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 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
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
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 only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your rep resentative 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. 2050 7
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. 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.
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.
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 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 | CARDONE_OLIVIA_LEE_DC_0752_17_0722_I_1_FINAL_ORDER_2036539.pdf | 2023-05-31 | null | DC-0752 | NP |
3,071 | https://www.mspb.gov/decisions/nonprecedential/MARSHALL_BRUCE_C_AT_0752_18_0096_X_1_FINAL_ORDER_2036547.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRUCE C. MARSHALL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -18-0096 -X-1
DATE: May 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bruce C. Marshall , Cordova, Tennessee, pro se.
W. Robert Boulware , Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 On Septembe r 6, 2019, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding the agency
not in compliance with the Board’s October 12, 2018 final decision in the
underlying appeal. Marshall v. Depa rtment of Veterans Affairs , MSPB Docket
No. AT -0752 -18-0096 -C-1, Compliance File (CF), Tab 16, Compliance Initial
Decision (CID); Marshall v. Department of Veterans Affairs , MSPB Docket
No. AT-0752 -18-0096 -I-1, Initial Appeal File, Tab 24, Initial Decision (ID). For
the reasons discussed below, we find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 On September 27, 2017 , the appellant appealed to the Board, alleging that
his January 3, 2017 retirement from the agency was involuntary due to material
misinformation provided to him by the agency. IAF, Tab 1, Tab 5 at 4. On
October 12, 2018, the administrative judge issued an initial decision finding that
the agency constructively removed the appellant and reversed the agency’s action.
ID. The administrative judge ordered the agency to cancel the appellant’s
retirement and retroactively restore him, effective January 3, 2 017; and to pay the
appellant the appropriate amount of back pay, with interest, as well as adjust the
appellant’s benefits with appropriate credits and deductions. ID at 8 -9. That
initial decision became the final decision of the Board on November 16, 2 018,
after neither party petitioned the full Board for review. ID at 10 -11.
¶3 On January 31, 2019, the appellant filed a petition for enforcement of the
Board’s order, alleging that, upon restoration, the agency placed him in a
secretary position, which was not the position he previously held when employed
by the agency. CF, Tab 1 at 2 -3. The appellant further alleged that the agency
had failed to provide him with the required back pay, interest, and benefits. Id.
On September 6, 2019, the administrative judge issued a compliance initial
3
decision granting the petition for enforcement because the agency failed to prove
that the position to which it assigned the appellant was sufficient to restore his
employment to the status quo ante and failed to demonstr ate it had paid the
appellant his back pay, interest, and benefits. CID at 4. The administrative judge
ordered the agency to: (1) explain why the appellant’s new position was correct,
including in its response a detailed narrative explaining the process it used to
determine the appropriate position for the appellant; (2) pay the appellant the
appropriate amount of back pay and interest, or, if the agency was waiting on the
Defense Finance Accounting Service (DFAS) to determine the amount of back
pay owed , explain its efforts thus far to calculate the back pay owed to the
appellant; and (3) submit the name, title, grade, and address of the agency official
charged with complying with the Board’s order. CID at 4 -6.
¶4 On September 13, 2019, the agency filed a statement of compliance
pursuant to 5 C.F.R. § 1201.183 (a)(6)(i) providing the identity of the agency
official charged with compliance. Marshall v. Department of Veterans Affairs ,
MSP B Docket No. AT -0752 -18-0096 -X-1, Comp liance Referral File (CRF),
Tab 1. On September 26, 2019, the agency submitted an additional pleading
stating that the appellant had been transferred to a Human Resources Assistant
position and that the agency underst ood the appellant to be satisfied with the new
position. CRF, Tab 2 at 4. The agency further explained that it was waiting for
DFAS to finish processing its request for the appellant’s back pay and interest for
the year 2017 and included a summary of its efforts to have DFAS complete the
process. Id. at 4-5. The agency also noted that DFAS had processed the
appellant’s back pay and interest for 2018 but did not provide any evidence as to
whether these funds had yet been paid to the appellant. Id.
¶5 On July 30, 2020, the Clerk of the Board issued an order stating that, since
the agency’s September 26, 2019 submission, neither party had yet to make any
further submission regarding compliance. CRF, Tab 4 at 2 -3. The Clerk of the
Board directed the age ncy to submit a statement explaining whether it had paid
4
the appellant all back pay and interest owed, including in its submission a full
accounting of the funds, along with a narrative explanation of the methodology
used to determine the amount of back pa y and interest. Id. The Clerk of the
Board’s order further directed the agency to include in its statement a narrative
explanation as to why the appellant’s new position constitutes restoration in
compliance with the Board’s order. Id.
¶6 On August 20, 2 020, the agency responded to the Clerk of the Board’s
July 30, 2020 order. CRF, Tab 5. The agency stated that the appellant had been
paid all back pay owed to him. Id. at 4. The agency also reasserted that the
appellant had been reassigned to a Human R esources Services position effective
June 24, 2019, and it was the agency’s understanding that the appellant was
satisfied in the new position. Id.
¶7 On April 21, 2021, the Clerk of the Board issued an order stating that, since
the agency’s August 20, 20 20 submission, the appellant had not filed any
response indicating whether he agreed with the agency’s statements regarding
compliance. CRF, Tab 6 at 2. The Clerk of the Board directed the appellant to
file a response within 21 days of the date of the or der explaining whether he
agreed with the agency’s assertion that it was in full compliance. Id. The Clerk
of the Board further stated that, if the appellant did not respond within the 21 -day
period, the Board would presume the appellant was satisfied an d dismiss the
petition for enforcement. Id. The appellant did not respond to the April 21, 2021
order.
ANALYSIS
¶8 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
5
comp liance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture ,
116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325, ¶ 5 (2010).
¶9 The agency’s outstanding compliance issues were its obligations to:
(1) restore the appellant, effective January 3, 2017; and (2) pay the appellant the
appropriate amount of back pay, with interest, and adjust the appellant’s benefits
with appropriate credits and deductions. On September 26, 2019, and August 20,
2020, the agency informed the Board that it had restored the appell ant to a
position he considered satisfactory and paid him all back pay and benefits owed.
CRF, Tab 2 at 4 -5, Tab 5 at 4. The appellant was provided two opportunities to
respond to the agency’s assertions of compliance, but did not respond on either
occas ion. Accordingly, we assume he is satisfied. See Baumgartner v.
Department of Housing and Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009).
¶10 Given the agency’s assertions that it has fully restored the appellant and
provided him with all back pay and benefits owed and appellant’s failure to
respond, we find that the agency is now in compliance and dismiss the petition
for enforc ement. This is the final decision of the Merit Systems Protection Board
in this compliance proceeding. Title 5 of the Code of Federal Regulations,
section 1201.183(b) ( 5 C.F.R. § 1201. 183(b)).
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
6
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIG 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 c arefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result 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
3 Since the issuance of the initial decision in thi s matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 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
8
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative i n this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. ma il, 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, i t must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option a pplies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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 practic es described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 app eals must 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 Ap peals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court 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.
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 judic ial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. P ub. L. No. 115 -195,
132 Stat. 1510.
10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Pro tection Board appellants before the 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 a t 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 | MARSHALL_BRUCE_C_AT_0752_18_0096_X_1_FINAL_ORDER_2036547.pdf | 2023-05-31 | null | AT-0752 | NP |
3,072 | https://www.mspb.gov/decisions/nonprecedential/PERRY_JOHNNIE_N_AT_0831_17_0520_I_1_FINAL_ORDER_2036553.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHNNIE N. PERRY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -17-0520 -I-1
DATE: May 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Johnnie N. Perry , Jacksonville, Florida, pro se.
Jane Bancroft , 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 revie w of the initial decision, which
affirmed the final decision of the Office of Personnel Management finding that he
had received a refund of his retirement contributions to the Civil Service
Retirement System following his removal from Federal service in 1991 .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 erro neous 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 erro r affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under sectio n 1201.115 for granting the petition for revie w.
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 review , the appellant submits three nearly identical petitions. Petition
for Re view (PFR) File, Tabs 1, 3, 5. He does not contest any specific finding by
the administrative judge concerning the record evidence or telephonic hearing2
testimony. Although the appellant’s petitions for revi ew are difficult to decipher,
he appears to raise a discrimination claim regarding his 1991 removal for the first
time on review. PFR File, Tab 1 at 1, Tab 3 at 2. The appellant submits a 1994
memorandum regarding alleged discrimination by the Department of the Navy in
his removal . PFR File, Tab 1 at 2, Tab 3 at 5, Tab 5 at 4. He also submits his
February 1991 application for the refund of his retirement deductions, a copy of
which the agency submitted into the record below. PFR File, Tab 3 a t 3, Tab 5
2 A telephonic hearing in this appeal was held on July 20, 2017, but we are unable to
locate the recording of the hearing. Because the appellant does not contend that the
administrative judge’s characterization of his testimony differed from that which he
presented at the hearing, we find that the regrettable unavailability of the recording has
not prejudiced the appellant’s substantive rights, and a rehearing is therefore
unnecessary. See Harp v. Department of the Army , 791 F.2d 161 , 163 (Fed. Cir. 1986 ).
3
at 2. The appellant stat es generally in each of his petitions that the initial
decision contained erroneous findings of material fact, but he provides no
additional argument or explanation of the findings to which he refers. PFR File,
Tab 1 at 1, Tab 3 at 2, Tab 5 at 1. Finally, the appellant makes a general
argument regarding “new weight” without any explanation. PFR File, Tab 5 at 1.
¶3 The Board generally will not consider an argument raised for the first time
in a petition for revie w 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); 5 C.F.R.
§ 1201.115 (d). To constitute new and material evidence, the information
contained in the documents, not just the documents 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). The appellant has not made
such a showing regarding the allegations of discrimination he raises for the first
time on review. The evidence concerning his 1991 removal is not new, as it
predates his Board appeal and the close of t he record bel ow by more than
25 years. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980)
(stating that, under 5 C.F.R. § 1201.115 , the Board generally will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despi te the party’s due
diligence). In any event, the appellant’s new arguments are not relevant to the
issue in the present appeal.3
¶4 The appellant’s remaining general arguments and documents provide no
basis for overturning the administrative judge’s well -reasoned findin g tha t he
failed to meet his burden of proving by preponderant evidence his entitlement to
3 The administrative judge clearly informed the parties during a prehearing conference
that the only issue that would be considered in the appeal was the appellant’s eligibility
for a retirem ent annuity unless the parties made a request in writing to modify the
issues. I nitial Appeal File, Tab 6 at 1. The appellant filed no such request.
4
the retirement benefits he seeks. Initial Appeal File , Tab 10, Initial Decision at 4;
see Fox v. Office of Personnel Management , 50 M.S.P.R. 602 , 605 (1991);
5 C.F.R. § 1201.56(b)(2)(ii) .
NOTICE OF APP EAL 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 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).
4 Since the issuance of the initial decision in this matter, the Board may have u pdated
the notice 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. 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
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 th rough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you recei ve
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Was hington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5 SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 ch allenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circui t, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblow er claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions i n certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 wa rrants 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 | PERRY_JOHNNIE_N_AT_0831_17_0520_I_1_FINAL_ORDER_2036553.pdf | 2023-05-31 | null | AT-0831 | NP |
3,073 | https://www.mspb.gov/decisions/nonprecedential/MUHAMMAD_AMATULLAH_R_AT_0752_16_0777_I_1_FINAL_ORDER_2036675.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AMATULLAH R. MUHAMMA D,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -16-0777 -I-1
DATE: May 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
Kenneth William , 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
sustained her removal from the agency for improper conduct and lack of candor
and found that she did not meet her burden of proving the affirmative defense of
race discrimination. Generally, we grant pet itions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 t o the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant worked for the agency as a GS -11 Immigration Services
Officer. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 33. In this position, the
appellant was responsible for granting or denying application s and petitions for
immigration benefits, so me decisions which determined whether immigrants were
permitted to legally remain in the country. IAF, Tab 9 at 16.
¶3 Effective July 29, 2016, the agency removed the appellant for three
specifications of improper conduct stemming from an April 17, 2014 lu nchtime
incid ent at a Quiznos and three specification s of lack of candor relat ing to the
appellant’s sworn interview with the agency’s Office of Security and Integrity
(OSI) re garding the April 17, 2014 incident. IAF, Tab 6 at 33, 35 -39.
¶4 The appellant appealed her removal to the Board and withdrew her hearing
request . IAF, Tab 1, Tab 28 at 4. After thoroughly considering the evidence,
including statements and affidavits from the appellant, the two co -owners of the
Quiznos , the police officer who resp onded to the incident, a state victim’s
advocate , and a local assistant state’s attorney, along with a recording from the
restaurant’s security camera, the administrative judge sustained all three improper
3
conduct specifi cations and two specifications of the lack of candor charge. IAF,
Tab 40, Initial Decision (ID) at 1 -10. The administrative judge found a nexus
between the sustained charges and the efficiency of the service, that the removal
penalty was reasonable, and that the appellant failed to prove her affirmative
defense of race discrimination.2 ID at 10 -15.
¶5 On review, the appellant argues that the evidence was not justly and
impartially considered, that the Quiznos co -owners fabricated their version of
events, and that the administrative judge fai led to consider that some of the
statements against her were later recanted. Petition for Review (PFR) File, Tab 1
at 2-3. We agree with the administrative judge’s well -reasoned findings and
discern no reason to disturb them . See Clay v. Department of the Army ,
123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason to disturb the administrative
judge’s findings in the initial decision whe n she considered the evidence, drew
appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
¶6 The appellant also argues that the administrative judge relied on hearsay
evidence. PFR File, Tab 1 at 2 -3, Tab 6 at 2. It is well settled that hearsay
evidence is admissible in Board proceedings and can be sufficient to sustain a
charge. Vaughn v. U.S. Postal Service , 109 M.S.P.R. 469 , ¶ 9 (2008) , aff’d ,
2 Although the administrative judge categorized the evidence as direct and indirect in
analyzing the appellant’s race discrimination affirmative defense, we find that she did
not disregard any evidence on that basis and that she considered the evidence as a
whole. ID at 12 -15; see Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 ,
¶¶ 30-31 (2016) (clarifying how the Board analyzes evidence offered in support of a
Title VII claim) , clarified by Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 23-24. Therefore, any error in the analysis was harmless. 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). Because the appellant has offered no basis for
disturbing the administrative judge’s finding that the appellant did not prove her race
was a motivating factor in the agency’s removal decision, ID at 14 -15, we do not reach
the question of whether discrimination was a “but -for” cause of the removal action. See
Pridgen , 2022 MSPB 31 , ¶¶ 22, 48 .
4
315 F. App’x 305 (Fed. Cir. 2009) . In the initial decision, the administrative
judge properly considered the relevant factors for assessing the probative value of
hearsay evidence. ID at 6 -7; see Borninkhof v. Department of Justice , 5 M.S.P.R.
77, 87 (1981). The appellant also argues that the Douglas factors were not
properly weighed, but the administrative judge found that the agency’s “deciding
official properly and tho roughly considered all of the relevant Douglas factors.”3
ID at 11 -12. Nothing on review causes us to stray from this conclusion.
¶7 The appellant further asserts on review that the agency improperly delayed
a year and a half before initiating its investi gation into the Quiznos incident, but
the evidence of record does not support such a claim. PFR File, Tab 1 at 4; IAF,
Tab 10 at 8 -10. Many of the sworn written and verbal statements that the agency
relied on to support its removal action against the app ellant were made in April
through July 2014. IAF, Tab 7 at 41; Tab 8 at 4; Tab 10 at 18 -26, 34, 46, 52, 54.
The agency conducted an investigatory interview of the appellant in June 2015,
after the State of Vermont dismissed the criminal charges. IAF, Ta b 10 at 59,
Tab 11 at 10. The appellant’s argument does not diminish the str ength of the
agency’s evidence proving that she engaged in the charged misconduct . Although
we have recognized that a charge may be dismissed if an agency’s delay in
proposing th e adverse action is unreasonable and prejudicial to the appellant,
such circumstances do not exist in this appeal. Messersmith v. General Services
Administration , 9 M.S.P.R. 150 , 155 -56 (1981) (holding that the delay between
the misconduct and the agency issuing the proposal was not a reason to overturn
the action, as the delay was caused by the seriousness of the charges, the
corresponding investigation, involvement of the U.S. Attorney, and the appellant
did not identify any pr ejudicial harm from the delay).
3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determi nation in a
disciplin ary action .
5
¶8 In her petition for review, t he appellant clai ms that the local police
department wrongfully arrested her for the Quiznos incident and did not
“Mirandize ” her. PFR File, Tab 1 at 3 -4. The appellant then argues that the
criminal charges were drop ped and her record expunged, along with what appears
to be a claim that she was subjected to double jeopardy through her removal .
PFR File, Tab 1 at 3-5, Tab 6 at 1. The agency did not use any of the statements
that the appellant made to the local police as a basis to remove her. IAF, Tab 9
at 14-16. The a gency was aware that the State of Vermont dismissed the criminal
charges against the appellant before issuing the proposed removal. IAF, Tab 10
at 59. As is the case here, w hen an appellant’s removal from an agency is based
on her conduct, rather than he r arrest and subsequent charges, the administrative
action is not impacted by court action. Zimmerman v. Department of Health and
Human Services , 19 M.S.P.R. 454 , 456 (1984). Moreover, the constitutional
prohibition against double jeopardy applies to criminal proceedings and is not
applicable here . Lemal v. U.S. Postal Service , 79 M.S.P.R. 241 , 243 (1998).
¶9 On review , the appellant claims that she was questioned without
representation in the June 5, 2015 i nvestigatory interview conducted by OSI .
PFR File, Tab 1 at 5. The evidence in the record establishes that days before the
interview took place OSI sent the appellant written notice of her right to have
representati on present . IAF, Tab 9 at 5-6, 8. The appellant then signed this
written notice on the day of the interview. IAF, Tab 11 at 6 . As such, we see no
merit to the appellant’s argument in this regard.
¶10 The appellant’s allegations on review that her civil rights were violated
when she was arreste d and incarcerated are not relevant to the issues before the
Board. PFR File, Tab 1 at 5. As outlined above, the agency did not take action
against the appellant based on her arrest and i ncarceration. IAF, Tab 9 at 14 -16.
¶11 The appellant mentions on r eview that this “situation stems from my health
conditions.” PFR File, Tab 1 at 5. However, she does not expound on how this is
relevant to any of the conclusions in the initial decision. Lastly, many of the
6
appellant’s other contentions on review are mere re -argument of the issues and
findings of fact as determined by the administra tive judge. PFR File, Tab 1
at 3-4, Tab 6 at 1 -3. This is insufficient to warrant the granting of her petition
for review. See Hsieh v. Defense Nuclear Agency , 51 M.S.P.R. 521 , 524 -25
(1991) (holding that mere re -argument of the same issues heard and decided by
the administrative judge, with nothing more, do es not constitute a basis to grant a
petition for review), aff’d , 979 F.2d 217 (Fed. Cir. 1992) (Table).
¶12 Accordingly, we affirm the initial decision.
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 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 to your particular case. If you have questions
about whether a particular forum 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.
7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
8
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court ‑appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/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:
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 yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction .
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510 .
10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MUHAMMAD_AMATULLAH_R_AT_0752_16_0777_I_1_FINAL_ORDER_2036675.pdf | 2023-05-31 | null | AT-0752 | NP |
3,074 | https://www.mspb.gov/decisions/nonprecedential/RODRIGUEZ_JORDANIS_AT_0752_21_0327_I_1_FINAL_ORDER_2035918.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JORDANIS RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -21-0327 -I-1
DATE: May 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Cayman Hargaden , Esquire, and Teresa Chin Williams , Esquire, Miami,
Florida, for the agency.
BEFORE
Cathy A. Harris, Vi ce Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal from Federal service. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the adm inistrative 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 eviden ce or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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 review, the appellant disagrees with the administrative judge’s weighing
of the evidence and cre dibility determinations. The Board generally will not
disturb an administrative judge’s conclusions when, as here, the initial decision
reflects that the administrative judge considered the evidence as a whole, drew
appropriate references, and made reason ed conclusions on issues of credibility.
See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987). Mere
disagreement with the administrative judge’s reasoned and supported f indings,
like those raised in the appellant’s petition for review, do not warrant disturbing
the initial decision, and we find no basis to do so here. We have considered that
the appellant has filed additional documents with his petition for review . Peti tion
for Review File, Tab 1 at 12 -16. To the extent the appellant asserts these
documents constitute new and material evidence, he has failed to explain why the
3
documents were unavailable prior to the close of the record before the
administrative judge de spite his due diligence , and we therefore do not consider
them . See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 213 -14 (1980)
(stating that, under 5 C.F.R. § 1201.115 , the Board generally will not consider
evidence submitted for the first time on review absent a showing that it was
unavailable before the record closed before the administrative judge despite the
party’s due diligence). Based on the foregoing, we deny the petition for review
and 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 to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal 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.
3 Since the issuance of the initial decision in thi s matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
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 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:
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 “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.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 judic ial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information fo r the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RODRIGUEZ_JORDANIS_AT_0752_21_0327_I_1_FINAL_ORDER_2035918.pdf | 2023-05-30 | null | AT-0752 | NP |
3,075 | https://www.mspb.gov/decisions/nonprecedential/RYAN_JAMES_THOMAS_DC_1221_16_0264_W_1_FINAL_ORDER_2035965.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES THOMAS RYAN,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-1221 -16-0264 -W-1
DATE: May 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Thomas Ryan , Bel Air, Maryland, pro se.
Elizabeth E. Pavlick , Esquire, and Kevin Greenfield , Esquire, Washington,
D.C., for the agency.
Emilee Collier , Esquire, Washington, D.C., for amicus curiae, Office of
Special Co unsel
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 in this
individu al right of action (IRA) appeal , which denied his request for corrective
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are 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
action. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous 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 by
this Final Order to find that the appellan t made protected disclosure s, we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant , a Police Officer with the Pentagon Force Protect ion Agency,
alleged in this IRA appeal that the agency improperly maintained several closed
records of investigations (ROIs) involving him , which he claims represent ed a
threat of discipline , in reprisal for several alleged protected disclosures , and in
reprisal for activity protected under 5 U.S.C. § 2302 (b)(9)(A)(i) and (b)(9)(C) .
Initial Appeal File (IAF), Tabs 1, 5, Tab 83 at 5. The administrative judge found
jurisdiction over the appeal and, after holding a hearing, denied the appellant’s
request for corrective action , finding , among other things, that the appellant failed
to meet his burden to establish by preponderant evidence that h e made a protected
disclosure. IAF, Tab 115, Initial Decis ion (ID) at 1, 7 -12.
¶3 Concerning those alleged protected disclosures, t he administrative judge
found that a reasonable person in the appellant’s position would not believe that
3
any of the disclosures alleged here 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 at 7 -12. As
iterated by the administrative judge, the appellant’s disclosures included: (1) his
December 24, 2014 email that a coworker was sleeping on the job and that
another coworker had threatened to stab that coworker in the eye, IAF, Tab 82
at 7; (2) his December 24, 2014 email that a third coworker allegedly had failed
to clear an alarm and his memorandum of the same day reporting that the same
colleague had comment ed that “every time a law enforcement officer encounters
an African -American, they kill him,” and that such a statement jeopardizes her
security clearance and that she should not have access to sensitive security
information, IAF, Tab 42 at 7 -8; (3) his December 26, 2014 memorandum and
subsequent email concerning his supervisor’s s tatement that the appellant
reportedly was not performing all of his duties, IAF, Tab 14 at 77, 79 ; and (4) his
Janua ry 6, 2015 email and memorandum complaining that a coworker had been
discourteous to him, id. at 81, 116; ID at 3 -5.
¶4 Although the administrative judge did find that the appellant established
that he had engaged in activity protected under 5 U.S.C. § 2302 (b)(9)(A)(i) and
2302(b)(9) (C) by filing IRA appeals and complaints with the Office of Special
Counsel (OSC) , she went on to find that the appellant failed to show that this
alleged protected activity contributed to any decision to retain the closed ROIs,
citing testimony that such documents are usually retained indefinitely and the
appellant’s failure to introduce any evidence to show that the individuals
responsible for ret aining such documents had any knowledge of his alleged
protected activity. ID at 12 -13. She also found that the agency’s decision to
maintain the ROIs was not a personnel action under 5 U.S.C. § 2302 (a)(2 )(A) and
did not constitute a threat of reprisal, citing less -than -preponderant evidence that
the ROIs either could or should have been destroyed and, as noted above, the lack
of any connection between the appellant’s alleged protected activity and any
4
possible decision concerning the retention of the ROIs. ID at 15. Thus, she
found that the indirect risk of future discipline based on the content of the ROIs is
not a threat of discipline that would exempt these circumstances from the general
rule that an investigation, in and of itself, is not a personnel action under 5 U.S.C.
§ 2302 (a)(2)(A). Id.
¶5 In his petition for review, the appellant contests many of the administrative
judge’s factual findings, for example, challenging her characterization of him as
argumentative dur ing one of the episodes at issue in this appeal and instead
insisting that he had “merely informed” the acting floor supervisor that h e was
following orders from his supervisor. Petition for Review (PFR) File, Tab 1
at 5-8. He also challenges the administrative judge’ s finding that his disclosure
involving a coworker sleeping on duty and a purported stabbing threat was
motivated by int erpersonal squabbling , rather than a desire to disclose significant
Government wrongdoing , and argues that his disclosure reasonably showed a
violation of a rule . Id. at 8, 11-12, 16 -17; ID at 8. He offers what he describes as
new evidence regarding that disclosure , claiming that the evidence was not
available before the hearing because the administrative judge never asked him
about the full circumstances of the episodes and improperly restricted his hearing
testimony. PFR File, Tab 1 at 11 -15. The appe llant argues that several agency
witnesses made false statements, explains why he believes that the administrative
judge should have considered whether his supervisor perceived him to be a
whistleblower , and essentially reargues his case . Id. at 9-11, 15-24.
¶6 The agency responded in opposition to the appellant’s petition for review ,
and the appellant filed a reply to the agency’s response. PFR File, Tabs 3 -4.
Additionally, OSC filed a brief as amicus curiae , asserting that the administrative
judge er red in considering the appellant’s motivation in making one of his
disclosure s. PFR File, Tab 5. OSC observes that under 5 U.S.C. § 2302 (f)(1)(C) ,
“[a] disclosure shall not be excluded from subsection (b)(8) because . . . of the
employee ’s or applicant’s motive for making the disclosure ,” and asks the Board
5
to reaffirm that a whistleblower’s motive does not affect whether a disclosure is
protected. Id. at 5-9.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 When reviewing 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 perso nnel action. 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.; 5 C.F.R. § 1201.4 (q). 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 d isclosure. Aquino , 121 M.S.P.R. 35, ¶ 10.
The appellant established that he made protected disclosure s.
¶8 The administrative judge found that the appellant’s disclosure s that he
observed a coworker sleeping on duty and overheard another coworker
threatening to stab the first coworker in the eye with a pen were not protected, in
part because the appellant was motiv ated to get back at the coworker s involved
for a perceived slight , rather than by whistleblowing. ID at 8. In its amicus brief,
OSC correctly points out that the whistleblower statute spec ifically excludes
considering the motivation of the individual mak ing a disclosure. 5 U.S.C.
§ 2302 (f)(1)(C); PFR File, Tab 5 at 5 -6. T hus, the administrative judge erred in
considering the appellant’s motivation, and we hereby modify that finding. See,
e.g., Johnson v. Department of Defense , 87 M.S.P.R. 454, ¶ 10 (2000) (rejecting
2 The administrative judge found that the appellant established jurisdiction ove r this
IRA appeal. ID at 1 . Neither party challenges this finding in a petition for review or
cross petition for review , and we discern no basis to disturb it.
6
an administrative judge’s finding that an employee did not have a rea sonable
belief because her activity was motivated by tr oublemaking). We also agree with
the appellant that a reasonable person in the appellant’s position would believe
that his December 24, 2014 email concerning his observation of a coworke r
sleeping on duty evidence d a violation of a rule or regulation. PFR File, Tab 1 at
16-17; see Horton v. Department of the Navy , 66 F.3d 279 , 281-83 (Fed. Cir.
1995) (finding protected a disclosure that employees were sleeping on the job),
superseded by statute on other grounds as stated in Day v. Department of
Homeland Security , 119 M.S.P.R. 589, ¶¶ 14-18 (2013); 5 C.F.R. § 2635.705 (a)
(requiring Federal employees to use official time in an honest effort to perform
official duties). The administrative judge erred in finding otherwise , and we find
that this was a protected disclosure.
¶9 The administrative jud ge also found that the appellant failed to show that
his disclosure that another coworker threatened to stab a coworker in the eye with
a pen was protected . The administrative judge observed that the appellant
described the so -called threa t as “apparent e mpty bragging” and that the appellant
did not believe that the coworker was actually intending to stab the other
coworker. The administrative judge concluded that a reasonable law enforcement
officer in the appellant’s position could not hav e believed tha t the threat of
violence constituted a criminal assault. ID at 9. Although the administrative
judge correctly found that the appellant did not hold a reasonable belief that
violence was imminent, we nonetheless find that this disclosure was protected.
As the appellant stated in his petition for review, he thought it constituted
“threaten ing behavior” toward another Federal employee and that such behavior
constituted a violation of an agency rule. Although the Whistleblower Protection
Act does not define “rule,” it includes established or authoritative standards for
conduct or behavior. See Rusin v. Department of the Treasury , 92 M.S.P.R. 298 ,
¶¶ 15 -17 (2002) . Moreover, in making a disclosure involving a violation of law,
rule, or regulation, there is no de minimis exception for disclosures falling within
7
the scope of 5 U.S.C. § 2302 (b)(8)(A)(i). See Fisher v. Environmental Protection
Agency , 108 M.S.P.R. 296 , ¶ 9 (2008) ; PFR File, Tab 1 a t 15. Under the facts and
circumstances of this case, disclosing a threat of violence constituted a protec ted
disclosure.
¶10 Concerning the appellant’s remaining alleged disclosures, we agree with the
administrative judge that the appellant failed to establi sh that a reasonable person
would believe that his December 24, 2014 disclosure concerning a coworker ’s
response to an alarm disclosed a violation of law, rule, or regulation, gross
mismanagement, abuse of authority, or a gross waste of funds. ID at 10. The
appellant identified no authority prescribing a parti cular rule or protocol , and,
under the se circumstances, we find that this is a dispute over policy and
procedure rather than a protected disclosure. See Webb v. Department of the
Interior , 122 M.S.P.R. 248, ¶¶ 7-10 (2015) (holding that a disclosure of a p olicy
disagreement that does not evidence the kind of misconduct listed in sec tion
2302(b)(8) is not protected). We also agree with the administrative judge that the
appellant’s email purportedly disclosing the same coworker ’s opinion regarding
law enforcement officers kill ing African -Americans was not a protected
disclosure . ID a t 10-11. The appellant’s conclusory assertion that his coworker ’s
opinion on the issue should jeopardize her security clearance is not a protected
disclosure. Similarly, we agree that a reasonable person would not believe that
the appellant ’s purported d isclosures of December 26, 2014 , and January 6, 2015,
which we find concern hi s personal i nteractions with his coworker s, represent ed a
violation of law, rule, or regulation, gross mismanagement, abuse of authority, or
a gross waste of funds. ID at 11 -12.
¶11 Thus, we find the appellant made protected disclosure s concerning his
coworker sleeping on duty and a coworker threatening to stab a nother coworker
in the eye with a pen , and we agree with the administrative judge ’s finding that
the appellan t engaged in activity protected under 5 U.S.C. §§ 2302 (b)(9)(A)(i)
8
and (b)(9)(C ) when he filed IRA appeals and OSC complaints that motivated
some of the investi gations at issue in this appeal. ID at 12 -13 & n.14.
The appellant failed to iden tify a personnel action that the agency took in reprisal
for his protected activity.
¶12 As noted above, the administrative judge found that the appellant failed to
show that his protected activity contributed to any personnel action as described
in section 2302(a)(2)(A). ID at 13 -15. Indeed, she found no agency actions other
than the investigations themselves, which she properly noted are not generally
found to be personnel actions. ID at 14; see Sistek v. Dep artment of Veterans
Affairs , 955 F.3d 948 , 955 (Fed. Cir. 2020); Mattil v. Department of State ,
118 M.S.P.R. 662 , ¶ 21 (2012). Although it is proper to consider evidence
regarding an investigation if it is so closely related to an alleged personnel action
that it would have b een a pretext for gathering information to retaliate for
whistleblowing, see Skarad a v. Department of Veterans Affairs , 2022 MSPB 17,
¶ 18 n.4; Mattil , 118 M.S.P.R. 662 , ¶ 21, here, we agree with the administrative
judge that the appellant failed to sh ow by preponderant evidence that his
protected whistleblowing activity was a contributing factor in the agency’s
decision to take or fail to take any personnel action against him , ID at 14 -16.
¶13 The appellant alleged here that the personnel action at issue is the agency’s
maintenance of the ROIs and the threat of discipline he contends that they
represent. IAF, Tabs 1, 5, Tab 83 at 5. There is no other personnel action for
which the investig ations could have been a pretext . Moreover, the record fails to
establish with any specificity the contours of the agency’s policy on the retention
of ROIs. ID at 15. Because there is nothing to indicate that the agency did
anything inconsistent with its normal document retention protocol, the appellant
failed to establish that the agency is improperly retaining the ROIs, much less
that it is doing so in reprisal against him. Furthermore , the appellant established
no connection between his protected activity and the officials in the agency’s
Office of Professional Responsibility who retain authority over the ROIs . ID at
9
15. There is no evidence in the record to suggest that the agency’s decision
regarding the retention of the ROI s was in any way affected by the appellant’s
protec ted activit y. We find that the appellant failed to establish that the agency
took, or failed to take, a personnel action against him concerning the ROIs .
Absent an underlying personnel action, we find that the appellant has not shown
that the agency ’s in vestigations were a pretext for retaliation and therefore he has
not shown that the investigations themselves constituted personnel actions.
Skarada , 2022 MSPB 17 , ¶ 18 n.4. Because the appellant failed to establish that
the agency took or failed to take a personne l action under 5 U.S.C.
§ 2302 (a)(2)(A) , he has fail ed to make a prima facie case , and we therefore agree
with the administrative judge’s denial of the appellant’s request for corrective
action. E.g., Aquino , 121 M.S.P.R. 35 , ¶ 10; see Wadhwa v. Department of
Veterans Affairs , 111 M.S.P.R. 26, ¶ 9, aff’d , 353 F. App’x 434 (Fed. Cir. 200 9),
overruled on other grounds by Hau v. Department of Homeland Security ,
123 M.S.P.R. 620, ¶ 16 (2016) , aff’d sub nom. Bryant v. Merit Systems Protection
Board , 878 F.3d 1320 (Fed. Cir. 2017) .
¶14 Lastly, the appellant argues that the administrative judge erroneously
limited the issues adjudicated in th e appeal. PFR File, Tab 1 at 21 -24. Based on
the appellant’s submissions, the administrative judge iterated the issues, as set
forth above, in her prehearing conference summary. IAF, Tab 83 at 5. The
appellant subsequently submitted a list of objections to the prehearing conference
summary , and the administrative judge granted his motion to reconsider her
denial of two of his witnesses, but he did not specifically contest the
administrative judge’s summary of the issues. IAF, Tab s 87-88. An issue is not
properly before the Board whe n it is not included in the administrative judge ’s
memorandum summarizing the prehearing conference, which states that no other
issues will be considered, unless either party objects to the exclusion of that issue
in the summary . Crowe v. Small Business A dministration , 53 M.S.P.R. 631 ,
634-35 (1992). The administrative judge afforded the parties 5 days to lodge
10
their objections to the prehe aring conference summary , IAF, Tab 83 at 8, and the
record reflects that the appellant failed to do so concerning the issues set forth
therein.
¶15 The appellant also asserts that the administrative judge should have
considered whether the agency perceived h im as a whistleblower. PFR File,
Tab 1 at 22. In that regard, he also contends that the agency “failed to act on the
evidence [he] presented in an effort to discredit [him] because the y perceived the
information as a protected disclosure .” Id. at 19. When an appellant argues that
an agency perceived him as a whistleblower, the Board analyzes the question of
whether the appellant made a protected disclosure in a different fashion, asking
whether agency officials believed that the appellant made or inten ded to make a
disclosure, not whether the appellant reasonably believed he made a protected
disclosure. E.g., King v. Department of the Army , 116 M.S.P.R. 689, ¶ 8 (2011) .
In such a case, whether the appellant actually made a protected disclosure is
immaterial, and the issue of whether the agency perceived him as a whistleblower
essentially stands in for that portion of the analysis. Id. Nevertheless, such
analysis has no effect on the other issues in the IRA appeal. Id., ¶ 9. Even if the
appellant could establish that the agency perceived him as a whistleblower, it
would not change our determination that he failed to establish that the agency
took or failed to take a personnel action under 5 U.S.C. § 2302 (a)(2)(A) in
reprisal for his protected activity . ID at 14 -15.
¶16 Moreover, rather than identify the other issues that the administrative judge
allegedly should have adjudicated, the appellant instead reargues the episode in
which one of his coworkers threatened to stab the other with a pen. PFR File ,
Tab 1 at 22 -24. He contends that the administrative judge improperly limited his
testimony on the issue and implies that she was biased against him. Id. at 22. We
disagree. Our review of the transcript indicates that the administrative judge
instead sought to assist the appellant , who was pro se in this matter, with his
direct testimony on the issue by asking him questions . Hearing Transcri pt,
11
Apr. 28, 2016 , at 11 -12, 18 -22. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators . Oliver v. Department of
Transportation , 1 M.S.P.R. 382 , 386 (1980 ). In addition, 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 imp ossible. ”
Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002)
(quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). Here, t he appellant
fails to overcome the presumption , and the record does not indicate that any of
the administrative judge’s actions evidenc e such favoritism.
¶17 Accordingly, we affirm the decision as modified herein.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for see king such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
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.
12
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Pleas e read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the co urt
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Fede ral Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
13
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decis ion—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discri mination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
14
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
15
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 | RYAN_JAMES_THOMAS_DC_1221_16_0264_W_1_FINAL_ORDER_2035965.pdf | 2023-05-30 | null | DC-1221 | NP |
3,076 | https://www.mspb.gov/decisions/nonprecedential/RYAN_JAMES_THOMAS_DC_1221_14_0323_B_1_FINAL_ORDER_2035983.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES THOMAS RYAN ,
Appellant ,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER S
DC-1221 -14-0323 -B-1
DC-1221 -14-0378 -B-1
DC-1221 -14-0434 -B-1
DC-1221 -14-0700 -B-1
DC-1221 -16-0177 -W-2
DC-1221 -16-0178 -W-2
DC-1221 -16-0179 -W-2
DATE: May 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Thomas Ryan , Bel Air , Maryland , pro se.
Elizabeth E. Pavlick , Esquire , and Lundi McCarthy Sha fiei, 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 remand initial decision
in this individual right of action (IRA) appeal , which denied his request 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
corrective action. Generally , we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpre tation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion , and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that , despite the petitioner’s due
diligence , was not available when the record closed. Title 5 of the Code of
Feder al Regulations , section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal , we conclude that the petitioner has not
established any basis under section 1 201.115 for granting the petition for review.
Therefore , we DENY the petition for review . Except as expressly MODIFIED to
address the appellant’s claim that he disclosed a violation of an agency rule , we
AFFIRM the remand initial decision.
BACKGROUN D
¶2 The Board remanded this IRA appeal to the regional office , finding that the
appellant established jurisdiction over his claim that the agency had taken several
personnel actions in reprisal for his January 4 and April 5 , 2013 disclosures to the
agency’s Office of P rofessional Responsibility (OPR) . Ryan v. Department of
Defense , MSPB Docket Nos. DC-1221 -14-0323 -W-1, DC-1221 -14-0378 -W-1,
DC-1221 -14-0434 -W-1, DC -1221 -14-0700 -W-1, Remand Order (Feb. 4 , 2016)
(Remand Order) .2 The appellant subsequently filed three additional IRA appeals
alleging that the agency had taken additional personnel actions in reprisal for the
2 The appellant originally filed four separate IRA appeals, MSPB Docket Nos.
DC-1221 -14-0323 -W-1, DC -1221 -14-0378 -W-1, DC -1221 -14-0434 -W-1, and DC -1221 -
14-0700 -W-1, which the administrative judge joi ned for adjudication because he found
that they all “arise from the same or related underlying events, and involve aspects of
the same whistleblowing claim.” Remand Order, ¶ 5 n.2.
3
same disclosures ,3 and the administrative judge joined those a ppeals with the
remanded appeal s for a hearing on the appellant’s claim that the agency took six
personnel actions in retaliation for his January 4 and April 5 , 2013 disclosures.
Ryan v. Department of Defense , MSPB Docket No. DC-1221 -14-0323 -B-1,
Remand File (RF) , Tabs 12, 59; Tab 72 , Remand Initial Decision (RID) at 5 -6.
¶3 The appellant’s disclosures concern four separate incidents involving the
same coworker , who was a fellow police officer. RID at 7. The administrative
judge carefully analyzed the appellant’s disclosures concerning each alleged
incident to determine whether the appellant had proved by preponderant evidence
that a disinterested observer , with knowledge of the essential facts known to and
readily ascertainable to him, could reasonably conclude that his disclosure
evidenced a violation of law . RID at 7-18; see 5 U.S.C. § 2302 (b)(8)(A)(i);
Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469 , ¶ 12 (2010)
(discussing this standard at the jurisdictional stage of an IRA appeal) . As set
forth below , the administrative judge found that the appellant failed to establish
by preponderant evidence that he made a protected disclosure under 5 U.S.C.
§ 2302 (b)(8). RID at 7-18.
¶4 The appellant’s January 4 , 2013 memorandum to OPR recounts three
separate incidents. RF, Tab 21 at 12 -13. Concerning the first incident , which
alleged ly occurred during an honor guard assignment in June or July 2012 at the
Raven Rock Mountain Complex , the appellant contended that another officer had
intentionally given him conflicting commands in an effort to embarrass him. Id.
The administ rative judge found no evidence , save for the appellant’s assertion ,
that the other officer had done so . RID at 8. Even credi ting the appellant’s
account of the incident , the administrative judge determined that the actions
described failed to satisfy the elements of an assault , finding no evidence of a
threat or attempt of violence or injury. Id. Moreover , even if the appellant’s
3 Ryan v. Department of Defense , MSPB Docket Nos. DC -1221 -16-0177 -W-2,
DC-1221 -16-0178 -W-2, and DC -1221 -16-0179 -W-2.
4
assertion that the other office r intended to embarrass , mock, or disparage h im
were true, the administrative judge found that the appellant could not have
reasonably believed that such conduct constituted an assault. Id.
¶5 In the second incident , which alleged ly occurred on August 28 , 2012 , in
Mitchellville , Maryland , the appellant claimed that the other officer placed his
left hand on the appellant’s chest and pushed him , stating “g et out the way” in a
taunting manner. RF , Tab 21 at 12 -13; Hearing Transcript (HT) at 9 (testimony
of the appellant) . Because the appellant’s testimony on this point was unrebutted ,
the administrative judge found it more likely than not true that some manner of
physical contact occurred between the appellant and the other officer . RID at 10.
Nevertheless , citing the lack of any other evidence in support of the appellant’s
version of the incident , particularly considering how many officers were present
when i t allegedly happened , the appellant’s failure to raise the incident with
anyone until January 2013 , and his history of making unfo unded accusations
against his coworkers , the administrative judge found that the appellant could not
have reasonably believed that the other officer’s actions amounted to a n assault.
RID at 10-11.
¶6 Concerning t he third incident , which occurred on January 4, 2013 , the
appellant recounted an argument with the other officer over the volume of the
radio in an agency vehicle. RF , Tab 21 at 12 -13. Following the argument , when
retrieving their equipment from the back of the vehicle , the appellant alleged that
the other officer then made unnecessary physical contact with him , laughed and
smirked , and said to him “[y]ou better leave that alone or you ’ll get smacked.”
Id. at 12. The administrative judge found that, even if he assumed the contact
was intentional, the appellant had consistently interpreted the episode as an
affront to his dignity and not a threat of bodily harm by force or violence ,
observing that the appellant’ s reactions , as well as his hearing testimony ,
undermined his assertion that the other o fficer either caused him apprehension or
intimidated him . RID at 14-16. Thus , the administrative judge found that the
5
appellant also failed to show that he reasonably believed he was assaulted by the
other officer on January 4, 2013. RID at 16.
¶7 In his April 5 , 2013 memorandum to OPR , the appellant recounted a fourth
alleged assault , asserting that when he was entering an agency facility earlier that
day, the other officer had stared at him with a “scorn [ful] /resentful/angry
expression on his face.” Ryan v. Department of Defense , MSPB Docket No.
DC-1221 -14-0434 -W-1, Initial Appeal File (0434 IAF), Tab 10 at 5. The
appellant , who was of f-duty at the time , remarked that the other officer was in
possession of an agency firearm , and he asserted that the look he received wa s an
attempt by the other office r to intimidate him with physical force. Id. In
reviewing the appellant’s allegations , the administrative judge cited a
memorandum issued by the Chief of OPR concerning OPR’s review of security
came ra footage of the alleged incident , which did not support the appellant’s
version , and found that the record contained no evidence as to what , if anything ,
took place. RID at 16 -17; RF , Tab 67 at 4. Nevertheless , the administrative
judge found that , even if the appellant’s allegations were true , he could not have
reasonably believed that the other officer’s expression of scorn caused him to
suffer an assault. RID at 18. Accordingly , the administrative judge found that
the appellant failed to establish t hat his January 4 and April 5, 2013 disclosures
were protected under 5 U.S.C. § 2302 (b)(8). Id.
¶8 In his petition for review , the appellant argues that the administrative judge
misinterpreted his allegations and used too restrictive a definition of assault in
finding that his January 4 and April 5 , 2013 disclosures were not protected.
Petition for Review (PFR) File , Tab 1. He also challenges the administrative
judge’s factual and credibility dete rminations. Id. He asserts that he reasonably
believed that the June or July 2012 incident evidenced “a security violation (a
violation of [Department of Defense (DOD)] regulation [Administrative
Instruction ( AI)] 30,” rather than an assault. Id. at 5-6. The agency has filed a
6
response to the appellant’s petition for review , and the appellant has filed a reply
to the agency’s response. PFR File , Tabs 2 , 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 After establishing the Board’s jurisdiction in an IRA appeal , an appellant
must establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that he made a protected disclosure that was a contributing
factor in a personnel action taken against him.4 5 U.S.C. § 1221 (e)(1) ; Lu v.
Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 7 (2015). As noted
above , the administrative judge found that the appellant failed to prove at least
one element of this burden —that the relevant disclosures were protected . RID
at 7-18. This decision will be similarly focused.
¶10 A protected disclosure is one that an a ppellant reasonably believe s
evidences a violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger
to public health or safety. 5 U.S.C. § 2302 (b)(8)(A); Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285 , ¶ 18 (2013 ). The test for determining if an
employee’s belief regarding the disclosed matter is reasonable is whether a
disinterested observer with knowledge of the essential facts known and readily
4 This appeal involves events occurring both before and after the December 27, 2012
effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA).
Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Because the changes made by the
WPEA do not affect the outcome of this appeal, we find it unnecessary to resolve
whether it applies here.
Similarly, d uring the pendency of this appeal, the National Defense Authorization Act
for Fiscal Year 2018, P ub. L. No. 115 -91, 131 Stat. 1283, was signed into law on
December 12, 2017. It expanded the activities protected under 5 U.S.C.
§ 2302(b)(9)(C) to include cooperating or disclosing information to “any . . . component
responsible for internal inves tigatio n or review.” Pub. L. No. 115-91, § 1097(c)(1)(A),
131 Stat. 1283, 1618. That expansion does not affect the outcome of this appeal
because all of the relevant events occurred prior to December 12, 2017. Edwards v.
Department of Labor , 2022 MSPB 9 , ¶¶ 29-33 (finding that the changes to section
2302(b)(9)(C) do not apply retroactively).
7
ascertainable by the employee could reasonably conclude that the action s of the
agency evidenced a violation of law, rule, or regulation, or one of the other
conditions set forth in 5 U.S.C. § 2302 (b)(8). Baldwin , 113 M.S.P.R. 469 , ¶ 12.
The appellant failed to prove that his disclosure about the June or July 2012
incident was protected.
¶11 In his January 4 , 2013 memorandum to OPR , the appellant asserted that his
coworker gave him conflicting orders during an honor guard ceremony in June or
July 2012 and then mocked him for being out of step , all in an effort to embarrass
the appellant . RID at 7 -8; RF , Tab 21 at 12. The administrative judge found it
more likely that any misstep on the part of the appellant was the result of “his
own mistake, simple miscommunication, or other unremarkable cause .” RID at
8-9. He concluded that, even assuming the appellant’s coworker gave the
appellant a false or conflicting command as claimed , the appellant could not have
reasonably believed that he was assaulted. RID at 7-9.
¶12 On review, the appellant presents two brief but distinct arguments about
this disclosure. First, the appell ant challenges the administrative judge’s
definition of assault, arguing that the administrative judge should have used the
state law definition of assault, rather than one from Black’s Law Dictionary.5
PFR File, Tab 1 at 6. Second, the appellant argues that the June or July 2012
incident amounted to a violation of a particular agency policy regarding
workplace violence . Id. at 5-6.
¶13 Regarding this disclosure and the concept of an “assault,” we note that t he
underlying incident took place in Pennsylvania. HT at 8 (testimony of the
appellant) . Pennsylvania defines simple assault , in pertinent part , as “attempt s by
5 The appellant argued that the Maryland or Vir ginia definitions should have been used.
PFR File, Tab 1 at 6. Because the incident occurred in Pennsylvania, we infer that he
meant to refer to Pennsylvania law. He also claims that an assault is a threat of
unwanted touching but notably does not claim that any threat of touching occurred. Id.
8
physical menace to put another in fear of imminent serious bodily injury .”6
18 Pa. Cons. Stat. Ann. § 2701(a) (3); see Baldwin , 113 M.S.P.R. 469 , ¶¶ 18-21
(considering the various definitions of assault, including under South Carolina
law, i n finding that an appellant nonfrivolously alleged that he reasonably
believed that his coworker’s action of waving a box cutter at him in a threatening
manner was an assault).
¶14 The appellant has not alleged that he believed his fellow officer inten ded to
cause him fear of bodily injury. The appellant testified that the other officer
deliberately misdirected him to “embarrass” and “taunt .” HT at 69 (testimony of
the appellant) . This allegation is not something a reasonable individual with the
appellant’s knowledge in law enforcement would believe was an assault. See
Schlosser v. Department of the Interior , 75 M.S.P.R. 15, 22 (1997) (considering
that the appellant was a police officer in determining the reasonableness of his
belief that he disclosed a violation of law). Accordingly, we agree with the
administrative judge’s finding that the appellant did not believe, and a
disinterested observer in his position would not believe, that his fellow officer
intended to cause him fear of bodily harm. RID at 9. This is true under the more
generalized definition of “assault” used by the admini strative judge as well as the
definition specific to Pennsylvania.
¶15 As previously stated, the appellant argues , in the alternative , that his
disclosure revealed a violation of AI 30, which he describes as making it a
“security violation . . . to cause someone embarrassment in the workplace because
it is a sign of workplace violence.” PFR File , Tab 1 at 5 -6. The appellant also
raised this claim during the hearing below. HT at 8 (testimony of the appellant).
The administrative judge did not address th is argument, and we modify the initial
6 The appellant has not alleged that his fellow officer actually harmed him or intended
to harm him. RF, Tab 21 at 12; see 18 Pa. Cons. Stat. Ann. § 2701(a)(1) -(2) (setting
forth alternative definitions of “assa ult”).
9
decision to do so. We find that the appellant did not prove he reasonably
believed that his coworker violated AI 30.
¶16 As an initial matter, we find that the appellant has proven that AI 30
constitutes a “rule” for p urposes of determining if the agency violated a “law,
rule, or regulation.” A lthough the WPEA does not define “rule,” it includes
established or authoritative standards for conduct. See Rusin v. Department of
the Treasury , 92 M.S.P.R. 298 , ¶¶ 15 -17 (2002) (citing dictionary definitions of
the word “rule”) . In finding that this pro se appellant met his burden, we have
broadly construed the whistleblower reprisal statutory scheme in his favor . See
Rusin , 92 M.S.P.R. 298 , ¶ 17 (acknowledging that the Whistleblower Protection
Act is a remedial statute inten ded to improve protections for F ederal employees
and should be broadly construed in favor of those whom it was intended to
protect ); Melnick v. Department of Housing and Urban Development ,
42 M.S.P.R. 93 , 97 -98 (1989) (explaining that the Board construes pro se
pleadings liberally , and parties that are pro se are not required to plead issues
with legal precision ), aff’d , 899 F.2d 1228 (Fed. Cir. 1990) (Table) . There is no
de minimis exception to the protection afforded disclosures of the violation of a
law, rule, or regulation . See Fisher v. Environmental Pro tection Agency ,
108 M.S.P.R. 296 , ¶ 9 (2008).
¶17 We have been unable to find AI 30 in the record. This contrasts with
another agency policy, AI 8, along with some legal definitions of assault, which
the appellant submitted into evidence.7 RF, Tabs 46 -47. However, the absence
of this policy from the record is not fatal to the appellant’s claim. An appellant
is not required to identify the law, rule, or regulation that was violated “by title
or number , when [his] statements and the circumstances surrounding the making
7 Although the appellant’s updated exhibit list identifies AI 8 as Exhibit M, RF, Tab 56
at 4, his exhib it list does not include AI 30 , and, as noted above, he fails to identify the
document on review. Further, we were unable to access AI 30, which is listed as a
controlled document, on the internet. DOD Issuances, AI 30,
https://www.esd.whs.mil/Directives/issuances/admin_inst/ (last visited May 26, 2023 ).
10
of those statements clearly implicate an identifiable violation of law, rule, or
regulation .” See Chavez , 120 M.S.P.R. 285 , ¶ 19 (quoting Langer v. Department
of the Treasury , 265 F.3d 125 9, 1266 (Fed. Cir. 2001)) . Thus, we conclude that
AI 30 is an agency “rule” for purposes of the appellant’s whistleblower reprisal
claim.
¶18 The appellant described AI 30 as a workplace violence policy that protects
against embarrassment . PFR File, Tab 1 at 5 -6; HT at 8 (testimony of the
appellant). He testified that his coworker committed a “security violation” by
“deliberately caus[ing the a ppellant] embarrassment in front of a group of
people.” HT at 70 (testimony of the appellant). We find that the appellant failed
to prove that he reasonably believed that his coworker deliberately embarrassed
him.8 The appellant’s coworker testified that he gave the same verbal commands
to the entire honor guard , “and everyone did the same move except for [the
appellant].” HT at 138 (testimony of the accused office r). The administrative
judge concluded that the appellant’s missteps during the ceremony were due to
“his own mistake , simple miscommunication, or other unremarkable cause.” RID
at 8-9. In so finding, t he administrative judge credited the testimony of the
appellant’s fellow officer regarding the June or July 2012 incident after holding a
hearing. RID at 7-9. The Board defer s to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so . Haebe
v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). We find no such
sufficiently sound reasons here.
¶19 The ad ministrative judge did not specifically address whether the appellant
reasonably believed his coworker acted deliberately . We find that the appellant
failed to provide evidence supporting such a claim. The appellant has the burden
8 In light of this finding, we need not reach the issue of whether the appellant proved
that he reasonably believed AI 30 prohibited deliberately embarrassing someone.
11
of proving that it is m ore likely than not that he reasonably believed, as relevant
here, that his coworker deliberately embarrassed him in violation of AI 30. See
Lu, 122 M.S.P.R. 335 , ¶ 7 (setting for th an appellant’s burden to prove his claim
on the merits by preponderant evidence) ; 5 C.F.R. § 1201.4 (q) (defining
preponderant evide nce as 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). He gave speculative and
conclusory testimony that his coworker gave him conflicting instructions “for the
purpose of causing [him] embarrassment” and “intentionally miscommunicat[ed]
information to [him]. ” Id. (testimony of the appellant) . He provided no detai ls
supporting these conclusions, and we find that the appellant’s testimony does not
meet his burden of proving by preponderant evidence that he reasonably believed
his coworker was motivated to embarrass him.
¶20 For the first time on review, the appellant asserts that his coworker “told
[the a ppellant] privately to march in a wheel pattern when [the coworker] gave
[the appellant] the command to ‘march.’” PFR File, Tab 1 at 5. The Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Clay v. Department of the
Army , 123 M.S.P.R. 245 , ¶ 6 (2016). We have been unable to locate in the record
below that the appellant claimed or provided evidence that his coworker gave him
a private order to walk in a wheel patter n when ordered to march. For example,
the appellant did not testify regarding any such order or refer to it in his
January 4, 2013 disclosure . HT at 8, 68 -70 (testimony of the appellant) ; RF,
Tab 21 at 12.
¶21 The appellant argues on review that he did not previously challenge his
coworker’s testimony rega rding the June or July 2012 incident because while his
coworker testified that he gave the same “command” to all members of the honor
guard , he gave the appellant a different “order.” PFR File, Tab 1 at 5. The
12
appellant appears to distinguish between a p roper command, which he implicitly
concedes his coworker gave him, and a “ conflicting order[], ” which he is now
asserting his coworker gave him privately. Id. We do not find the appellant’s
stated distinction between orders and commands to be a reason fo r failing to
exercise the basic due diligence of raising this argument below or giving a
complete version of what occurred in June or July 2012 during his testimony.
Further, we observe that the appellant is, in essence, attempting to impeach his
coworker ’s credibility, and such evidence is not a basis for granting review .
Bucci v. Department of Education , 42 M.S.P.R. 47 , 55 (1989) (explain ing that
evidence offe red merely to impeach a witness’ s credibility is not genera lly
considered new and material) . Accordingly, w e find that the appellant failed to
prove that he reasonably believed his fellow officer deliberately embarrassed him
in violation of AI 30 .
The appellant failed to prove that his disclosure about the August 2012 incident
was protected .
¶22 Unlike the one discussed above, t he second incident recounted in the
appellant ’s January 4 , 2013 memorandum , which he alleged occurred in Maryland
on August 28 , 2012 , did involve physical touching . RF , Tab 21 at 12. For the
following reasons , we also agree with the administrative judge that the appellant
failed to establish that he reasonably believed that he disclosed conduct th at
compri sed an assault.9 RID at 11. The appellant testified that the other officer
pushed him , knocked him off balance , and told him to “get out of the way .” HT
9 The appellant alleged in his disclosure concerning this incident that he believed, based
on his coworker’s behavior, that he was a “habitual drunkard,” which he characterized
as “conduct unbecoming.” RF, Tab 21 at 12. In his hearing testimony, the appellant
corrected this statement, indicating that he meant to allege that his coworker had a
drinking problem. HT at 17, 76 -77, 80 -83 (testimony of the appellant). The appellant
restates his belief that his coworker had a drinking problem on review. PFR File, Tab 1
at 10, 26. However, he does not appear to have argued below or on review that he made
a protected disclosure as to the other officer’s alleged drinking problem. RID at 12-13
n.4; PFR File, Tab 1 at 26.
13
at 8-9, 70 (testimony of the appellant) . The appellant explained that if he had not
retreated , “sooner or later I would have toppled over ,” but he went on to assert
that, “because I was standing on a hill and I had a good footing to begin with ,” he
did not fall. Id. at 74-75. The administrative judge found that “some manner of
physical contact occ urred. ”10 RID at 10. However, he did not credit the
appellant’s assertion that he believed his coworker’s conduct amounted to an
assault. RID at 11. In so finding, the administrative judge considered, among
other factors, the appellant’s history of maki ng unfounded accusations against his
coworkers. Id.
¶23 On review, the appellant argues that this consideration was improper. We
disagree. Evidence of a witness’s character , particularly as to his veracity, is an
appropriate consideration for credibility determinations. Smith v. Department of
Veterans Affairs , 93 M.S.P.R. 424 , ¶ 18 (2003); Hillen v. Department of the
Army , 35 M.S.P.R. 453 , 458 (1987). The appellant also offers information in
support of his prior claims of coworker misconduct. PFR File, Tab 1 at 12 -13.
We decline to consider this information on review. See Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980) (explaining that , under 5 C.F.R.
section 1201.115 , the Board generally will not consider evidence submitted for
the first time with the petition for review absent a showing that it was unavailable
befor e the record was closed desp ite the party’s due diligence) .
¶24 The appellant further argues that the administrative judge failed to apply
Maryland law when determining that the appellant did not reasonably believe his
coworker assaulted him. PFR File, Tab 1 at 9 -10. Second -degree or
misdemeanor assault in Maryland includes the intent -to-frighten if (1) the
defendant commits an act with the intent to place a victim in fear of immediate
10 The appellant argues that the administrative judge should have credited his sworn
statement that his coworker touched him over his coworker’s denial. PFR File, Tab 1
at 7-8; RID at 9 -10; HT at 8 -9; RF, Tab 21 at 101, T ab 37 at 22 -23. Because the
administrative judge found that the alleged physical contact occurred, we discern no
basis to disturb his finding.
14
physic al harm; (2) the defendant has the apparent ability , at the time , to bring
about the physical harm; and (3) the victim is aware of the impending physical
harm.11 Jones v. State , 103 A.3d 586 , 589 (Md. 2014) (internal quotations and
citations omitted) ; see Md. Code Ann., Criminal Law § 3-203 (prohibiting
second -degree as sault and identifying it as a misdemeanor) .
¶25 Even applying this definition, w e find no error in the administrative judge’s
finding that the appellant did not reasonably believe that the incident in question
amounted to criminal assault. RID at 11. The a dministrative judge found that the
appellant’s claim of assault was not credible because the incident allegedly
occur red in front of fellow officers and the appellant claimed he responded only
by stating “don’t do that” and did not report the incident unti l 6 months later.
RID at 10-11; RF, Tab 62 at 12 -13. Further, t he appellant denied that his fellow
officer was ang ry but rather asserted that he was “[h]aughty,” “[c]ondescending, ”
and “[s]uperior.” RF, Tab 62 at 32; RID at 11. Thus, the appellant’s behavior
during and after the incident, and his characterization of his coworker’s frame of
mind, support the administrative judge’s finding that the appellant did not
reasonably believe his coworker intended to cause him immediate ph ysical
harm .12 RID at 11.
¶26 The appellant also argues that his fellow officer committed the
misdemean or of “simple assault” because the appellant responded to his fellow
officer’s actions by telling “him not to do it.” PFR File, Tab 1 at 10; HT at 9
11 First -degree assault involves an intentional “cause or attempt to cause serious
physical injury.” Md. Code Ann., Criminal Law § 3-202. Because the burden to prove
first-degree assault is higher, we will focus on the lower burden of proving
second -degree assault.
12 As to both the August 28, 2012 and April 5, 2013 incidents, the appellant observed
that the othe r officer had an agency firearm in his possession during the alleged assault.
0434 IAF, Tab 10 at 5; HT at 8 -9 (testimony of the appellant). The appellant and his
coworker were both police officers and were required to carry guns as part of their jobs.
We are not persuaded that a disinterested observer in the appellant’s position would
have found his coworker’s possession of a firearm unusual or, without more,
threatening.
15
(test imony of the appellant) . It is unclear on what the appellant bases his belief
that his warning converted his coworker’s actions into an assault. In any event,
the appellant has cited to no legal authority for his claim, and we are unable to
locate any.
¶27 On review, the appellant also questions the administrative judge’s reliance
on his 6-month delay in reporting the incident as a factor in determining the
reasonableness of his belief that he was assaulted . PFR File, Tab 1 at 9. The
Board has found, in the context of a chapter 75 adverse action , that in deciding
whether an agency has proven that an employe e made a threat, it applies the
reasonable person stan dard, considering the listeners’ reactions, the listeners’
apprehension of harm, the speaker’ s inten t, any conditional nature of the
statements, and any attendant circumstances . Metz v. Department of the
Treasury , 780 F.2d 1001 (Fed. Cir. 1986); Rose v. U.S. Postal Service ,
109 M.S.P.R. 31 , ¶ 8 (2007). As in a chapter 75 action , we find that the
administrative judge ’s consideration of the appellant’s response to his coworker’s
actions, including his delay in reporting them, was appropriate. In addition, we
agree that the appellant’s delay in reporting the incident undermines his claim
that a reasonable person in his po sition would have found that his fellow officer’s
behavior evidence d an intent to cause physical harm.
¶28 The appellant also argues that agency officials essentially believed him
because they started an investigation into his allegations of assault and did not
accuse him of making a false statement. PFR File, Tab 1 at 11. We decline to
infer that the appellant reasonably believed he was assaulted because the agency
started an investigation based on his then -unchallenged allegations. RF, Tab 37
at 21-23; see La chance v. White , 174 F.3d 1378 , 1381 (Fed. Cir. 1999)
(explaining that an employee’s “purely subjective perspective” is insufficient to
establish the reasonableness of his belief of Government wrongdoing “even if
shared by other employees”) . Nor do we view the agency’s decision not to take
action for alleged false statements as undermining the administrative judge’s
16
finding that a reasonable person would not have viewed the incident as an assault.
RID at 11.
The appellant failed to prove that his disclosure about the January 2013 incident
was protected .
¶29 The third incident set forth in the appellant’s January 4 , 2013 letter
occurred in Virg inia on the same day . RF , Tab 21 at 12 -13; 0434 IAF, Tab 10 at
5; RID at 16. It began with a disagreement between the appellant and his fellow
officer regarding the volume of a car radio. RF, Tab 21 at 12. About 30 minutes
later , while the appellant was removing his equipment from the rear of the
vehicle, he alleged that his fellow officer “intentionally made unnecessary
physical contact with the right side of his body to the left side of [the appellant’s]
body (assault) as if [the appellant] was not standing there and started to laugh
(taunt) with a smirk on his face.” RF, Tab 21 at 12, Tab 62 at 5. The appellant
described his coworker’s contact as a “nudge.” RF, Tab 62 at 6 .
¶30 The appellant also asserted that he responded to the nudge by asking, “Did
you see me standing there?” RF, Tab 21 at 12; HT at 10 (testimony of the
appellant). Apparently referring to the earlier dispute over the radio, the fellow
officer then stated “leave that alone or you’ll get s macked ,” which the appellant
testified that he interpreted as a threat. RF, Tab 21 at 12 ; PFR File, Tab 1 at 7 -8;
HT at 70 -71 (testimony of the appellant). During the resulting agency
investigation, the appellant indicated that he responded to his coworker’s conduct
by lau ghing . RF, Tab 6 at 5 . The administrative judge found that the evidence
suggested that any contact during the episode was inadvertent on the other
officer’s part , and he found that the appellant’s own reactions undermined his
assertion that the other off icer had intimidated him. RID at 15. Instead, the
appellant’s descr iption of the incident indicated that he was a participant, not a
victim. For example, he claimed in his testimony that he and his coworker
essentially “locked horns.” HT at 70 (testimo ny of the appellant); RID at 12 -16.
17
¶31 The appellant disputes the administrative judge’s conclusion that his fellow
officer’s contact was likely inadvertent. PFR File, Tab 1 at 16 -17; RID at 14.
When, as here, an administrative judge’s findings are “intertwined with issues of
credibility and an analysis of [the appellant’s] demeanor at trial,” the Board
affords them “special deference .” Purifoy v. Department of Veterans Affairs ,
838 F.3d 1367 , 1373 (Fed. Cir. 2016) ; HT at 140, 143 -44 (testimony of the
accused officer ). The Board may overturn such determinations only when it has
“sufficiently sound ” reasons for doing so. Haebe , 288 F.3d at 1301. The
appellant’s arguments simply reweigh the various factors relevant to credibility
determinations . PFR File, Tab 1 at 16-17; see Hillen , 35 M.S.P.R. at 458
(identifying the factors an administrative judge must consider in resolving
credibility i ssues) . We are not persuaded by the appellant’s assertions, which
include giving weight to his own unsubstantiated testimony that his coworker
“does not like white people .” PFR File, Tab 1 at 16-17; HT at 72 (testimony of
the appellant).
¶32 Under Virginia law, an assault is “an attempt with force and violence , to do
some bodily hurt to another , whether from wantonness or malice , by means
calculated to produce the end.” United States v. Carthorne , 726 F.3d 503 , 512
(4th Cir. 2013) (quoting Montague v. Commonwealth , 684 S.E.2d 583 , 588
(Va. 2009) ). The appellant’s conclusory statement on review that the other
officer’s actions were “unwanted, offens ive, physical contact” again falls short of
conduct that a reasonable person would view as an assault. PFR File, Tab 1 at 16.
In addition, his characterization of his laugh as “incredulous” does not undermine
the administrative judge’s finding that the a ppellant’s laughter and other behavior
following the incident undermined his claim that he felt intimidated. Id. at 19-20;
RID at 15. In fact, as the administrative judge observed , the appellant indicated
that his immediate response of asking if his cowo rker saw him was to attempt to
obtain an “incriminating statement” from his coworker in front of their superiors.
RID at 15-16; HT at 10 -11 (testimony of the appellant) . On review, the appellant
18
defends this behavior as “a common law enforcement tactic .” PFR File, Tab 1
at 21. We therefore agree with the administrative judge that the appellant ’s
response did not reflect surprise or alarm. RID at 15; PFR File, Tab 1 at 21. We
further agree that the appellant failed to establish that he reasonably belie ved that
he was discl osing an assault. RID at 16.
¶33 The appellant also argues that the reasonableness of his belief that he was
assaulted is supported by the fact that a Virginia m agist rate j udge charged the
other officer with a crime based on that office r’s “own written statement
containing his admission of making a threatening statement to me.”13 PFR File,
Tab 1 at 11 -12. The documents that the appellant cites in support of this claim
involve : (1) the Citizen’s Criminal Complaint that he initiated in V irginia
General District C ourt, in which he alleged that the other officer had assaulted
him; and (2) an email from the other officer to an agency investigator , in which
that officer recounts his version of the incident. RF, Tab 33 at 5-11. The
documents also show that the judge who heard the case found the other office r not
guilty of assault. Id. at 4-5. The appellant’s claim that the magistrate judge
believed any particular fact is without support in the record , and the appell ant’s
allegat ions in his Citizen’s Criminal Complaint are similar to the nonfrivolous
allegations for which the Board found that the appellant established jurisdiction
over his claim and remanded it for adjudication. Remand Order, ¶¶ 3, 14-16.
Nevertheless , in order to establish his claim , the appellant must show by
preponderant evidence that a reasonable person would have believed that he
disclosed conduct that amounted to an assault . E.g., Langer , 265 F.3d at 1265
(finding that in an IRA appeal , “[t]he standard for establishing subject matter
jurisdiction and the right to a hearing is assertion of a nonfrivolous claim ,” while
“the standard for establishing a prima facie case is preponderant evidence ”). We
13 Although not entirely clear, it appears that this argument concerns the Janua ry 4,
2013 incident because the statement the appellant references concerned that incident.
PFR File, Tab 1 at 11 -12; RF, Tab 33 at 11.
19
are not persuaded that the fact that a magistrate allowed th e appellant’s complain t
to proceed is relevant to our determination on this issue .
¶34 Finally, t he appellant argues that the administrative judge should have
granted his request for the testimony of two agency employees who determined
that the appellant’s description of the January 4, 2013 incident was sufficient to
open an agency investigation . PFR File, Tab 1 at 17. However, the appellant did
not offer these witnesses for that purpose . RF, Tab 27 at 36. Further, the
witnesses’ perception of the appel lant’s belief as to his fellow officer’s intention,
based on the appellant’s own description of the event to th ose witnesses , has little
probative value. Under the circumstances, w e decline to find that the
administrative judge abused his discretion in fi nding that their testimony was not
relevant. RF, Tab 59 at 3 ; see Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533, ¶¶ 16-17 (2010) (finding that an administrative judge did not
abuse her broad discretion by excluding a witness who supervised the appellant
during a period that ended more than a year prior to the performance
improvement period at issue in his removal ).
The appellant failed to prove that his disclosure about the April 2013 incident
was protected .
¶35 As to the fourth incident, the appellant alleged that on April 5, 2013, his
fellow officer looked at hi m with scorn , resentment, or anger while on duty and in
possession of his agency firearm . 0434 IAF, Tab 10 at 5. The administrative
judge found that no reasonable person could perceive his coworker’s look as an
assault. RID at 18. The appellant argues that he provided a sworn statement to
OPR that h is coworker “tr[ied] to intimidate [him] with physical force” on April
5, 2013. PFR File, Tab 1 at 22 -25. He asserts that because the only statement
rebutting his account is unsworn, the administrative judge erred in failing to
credit his version of the incident. Id. at 22-23, 25. We are no t persuaded.
Contrary to the appellant’s claim on review, hi s statement is also unsworn. 0434
IAF, Tab 10 at 5 . In any event , the administrative judge did not rely on the
20
description of the incident provided by the agency. RID at 18; RF, Tab 67 at 4 -5.
Rather, in finding no reasonable person could have perceived an assault , he
assumed the appellant’s statement was true. RID at 18. We decline to disturb
this finding.
¶36 The appellant next argues that the administrat ive judge should have
analyzed whether the appellant proved that his disclosures were contributing
factors in the agency’s actions. PFR File, Tab 1 at 29. We disagree. Because
the administrative judge properly determined that the appellant failed to pro ve he
made a protected disclosure, he was not required to conduct such an analysis.
See Fisher v. Department of the Interior , 2023 MSPB 11 , ¶¶ 8 -10 (finding that
an appellant failed to prove that his protected activity was a contributing factor
in his separation as the result of a reduction -in-force, and therefore it wa s
unnecessary to make further findings regarding his whistleblower reprisal claim ).
¶37 Finally, the appellant attaches a one -page log that his supervisor completed
of his performance in June and July 2015. PFR File, Tab 1 at 31. He does not
explain the significance of the document , or why he could not have offered it
during the proceedings below . We decline to consider it, as it is not relevant to
the issue of whether the appellant made protected disclosures in 2012 and 2013.
Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (finding 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 differe nt from that
of the initial decision ); Avansino , 3 M.S.P.R. at 214.
¶38 Accordingly, we affirm the administrative judge’s decision to deny
corrective action.14
14 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.
21
NOTICE OF APPEAL RIGHTS15
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable t ime limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
15 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
22
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
23
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Cou rtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
24
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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.16 The court of appeals m ust 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 yo u are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
16 The original statutory provision that provided for judicial review of certain
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.
25
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 | RYAN_JAMES_THOMAS_DC_1221_14_0323_B_1_FINAL_ORDER_2035983.pdf | 2023-05-30 | null | S | NP |
3,077 | https://www.mspb.gov/decisions/nonprecedential/BAKER_DAVID_J_SF_0752_17_0150_I_1_FINAL_ORDER_2036057.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID J. BAKER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
SF-0752 -17-0150 -I-1
DATE: May 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gary M. Gilbert , Esquire, and Renn C. Fowler , Esquire, Silver Spring,
Maryland, for the appellant.
Ann L. Maley , Esquire, and Chantal Jenkins , San Francisco, California, for
the agency.
BEFORE
Cathy A. Harris , Vice Chai rman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. On petition f or review, the
appellant argues that the administrative judge incorrectly dismissed the appeal
because she failed to provide him with notice of his jurisdictional burden.
Petition for Review (PFR) File, Tab 1 at 7 -9. He also argues that the
administrative judge erred in failing to addr ess the timeliness of his appeal and
that the agency violated his due process rights when it impermissibly denied his
right to a post -deprivation hearing. Id. at 9-16. Generally, we grant petitions
such as this one only in the following circumstances: t he 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 dur ing 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 availab le that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After ful ly considering the 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 claims that, because the administrative judge failed to provide
him with notice of his jurisdictional burden, the dismi ssal of his appeal must be
vacated. PFR File, Tab 1 at 8. Although the appellant is correct that the
administrative judge did not provide him jurisdictional notice prior to the
issuance of the initial decision, the agency’s motion to dismiss and the init ial
decision itself accurately set forth his burden to prove jurisdiction. Initial Appeal
File (IAF), Tab 9 at 15 , Tab 26, Initial Decision (ID) at 3. Accordingly, we find
3
that the agency’ s motion to dismiss and the initial decision cured any lack of
notice. See Harris v. U.S. Postal Service , 112 M.S.P.R. 186 , ¶ 9 (2009) (finding
that an administrative judge’ s failure to provide proper jurisdictional no tice may
be cured by the agency’ s pleadings or the initial decision) . Moreover, we agree
with the administrative judge’s conclusion that the Board lacks jurisdiction over
this appeal because the appellant, after receiving sufficien t notice of his appeal
rights, made a binding electio n to grieve his removal under 5 U.S.C.
§ 7121 (e)(1).3 ID at 4 -5; see Kirkwood v. Department of Education , 99 M.S.P.R.
437, ¶ 15 (2005) (explaining that an election to file a grievance is effective, and
deprives the Board of jurisdiction over the grieved action, if the emp loyee
receives adequate notice of her election rights and timely files her grievance ).
¶3 Most of the appellant’s arguments on review pertain to the timeliness of his
Board appeal . PFR File, Tab 1 at 9 -15. However, because the administrative
judge correctly found that the Board lacks jurisdiction over the appeal, there is no
need to reach the timeliness issue. See Fletcher v. Office of Personnel
Management , 118 M.S.P.R. 632, ¶ 10 n. 2 (2012). Further, in the absence of
Board jurisdiction, the Board lacks the authority to address the appellant’s claim
that the agency violated his due process rights when it impermissibly denied his
3 To the extent that the appellant argues that his election to proceed under the
negotiated grievance procedure was not binding because the notice of appeal rights
contained in his removal decision was insufficient, we find his argument unpersuasive.
Altho ugh the appellant is correct that t he appeal rights provided by the agency lacked
the specific notice , as required by the regulations in place at the time of his removal ,
that he had a right to request Board review of a final grievance decision , we find that it
provides no basis to nullify his otherwise valid election to pursue a grievance through
the negotiated grievance procedure . IAF, Tab 19 at 26-27; see 5 C.F.R. § 1201.21 (d)(3)
(2007). Specifically, because the only notice that was lacking from his appeal rights
merely provided an additional layer of review in certain circumstances to the process he
ultimately chose , we find that his election was not prejudiced in any way . Further, as
the administrative judge properly explained, that layer of review is not available to the
appellant here because no final grievance decision exists. ID at 5.
4
right to a post -deprivation hearing. See Rivera v. Department of Homeland
Security , 116 M.S.P.R. 429 , ¶ 16 (2011) .4
NOTICE OF APPEAL RIGH TS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the approp riate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which 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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 The appellant attaches several documents to his petition for revi ew. PFR File, Tab 1
at 18-61. These documents, however, are all contained in the record below. IAF,
Tab 19 at 18 -61. As such, the Board need not consider them. Meier v. Department of
the Interior , 3 M.S.P.R. 247 , 256 (1980) (ho lding that evidence that is already a part of
the record is not new).
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 ca nnot advise which option is most appropriate in any matter.
5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Fe deral Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
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 pr epayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(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.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.
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 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.
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.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 | BAKER_DAVID_J_SF_0752_17_0150_I_1_FINAL_ORDER_2036057.pdf | 2023-05-30 | null | SF-0752 | NP |
3,078 | https://www.mspb.gov/decisions/nonprecedential/SHEPARD_DEBRA_M_AT_1221_16_0478_W_1_FINAL_ORDER_2036095.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBRA M. SHEPARD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -16-0478 -W-1
DATE: May 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debra M. Shepard , Lawrenceville, Georgia, pro se.
Edith W. Lewis , 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 her individual right of action appeal for lack of jurisdiction . On
petition for review, the appellant argues that the administrative judge should have
recused himself and that he committed procedural errors , challenges his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
determination that she failed to ex haust her administrative remedies,2 and
identifies a number of alleged disclosures and prohibited personnel actions.
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.
2 The appellant appears to be challenging the administrative judge’s finding that she
failed to exhaust her remedies with the Office of Special Counsel (OSC) as to her claim
that the agency delayed t ransferring her pursuant to a settlement agreement that
resolved her prior equal employment opportunity complaint in retaliation for her
whistleblowing disclosures or protected activity . Petition for Review File, Tab 1 at 10,
15-19, 28. In Chambers v. De partment of Homeland Security , 2022 MSPB 8 , ¶ 10 ,
which was issued after the initial decision in this case, the Board clarified tha t the
substantive requirements of exhaustion are met when an appellant has provided OSC
with a sufficient basis to pursue an investigation. Here, the administrative judge
explicitly found that the appellant had “ failed to provide OSC with sufficient
infor mation as to the basis for her claim of reprisal for whistleblowing and protected
activity such that would permit it to actually pursue an investigation that might lead to
corrective action on a claim of reprisal .” Initial Appeal File, Tab 15 at 14. Thus, i t
appears that the administrative judge applied the same standard set out in Chambers in
determining that the appellant had failed to meet the exhaustion requirement . Even if
we found that the administrative judge applied the standard in effect bef ore the issuance
of Chambers , we have reviewed the record , and we find that the appellant has not
shown that she provide d OSC with a sufficient basis to pursue an investigation into this
allegation.
3
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights , the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdicti on. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismis sal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to re view your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Fed eral Circuit, which must be received by the court
3 During the pendency of this appeal, the National Defens e Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115 -91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the U nited States Code. These changes do not affect the outco me of this appeal .
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Cour t of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Ap peals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, an d 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Syste ms Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial re view of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative 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 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 only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 E EOC via commercial delivery or
by a method requiring a signature, 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 t he Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other prote cted activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdictio n.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SHEPARD_DEBRA_M_AT_1221_16_0478_W_1_FINAL_ORDER_2036095.pdf | 2023-05-30 | null | AT-1221 | NP |
3,079 | https://www.mspb.gov/decisions/nonprecedential/THOMAS_TONJAIH_DE_0714_21_0113_I_1_FINAL_ORDER_2036101.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TONJAIH THOMAS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0714 -21-0113 -I-1
DATE: May 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Ruth Kathryn Russell , Esquire, and Tyler C. Smith , Esquire, Kansas City,
Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT ,” with an effe ctive date of April 30,
2023 . PFR File, Tab 4 at 8 -9. The document provides, among other things, f or
the withdrawal of the appeal. Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and 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 6. Accordingly, we find that
dismissing the appeal with prejudice to refiling (i.e., the parties normally may
not refile this appeal) is appropriate under these circumstances. In addition, we
find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record fo r enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201. 113).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for 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
3
been fully carried out, and should include the dates and r esults 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 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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washi ngton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calend ar days after your representative
receives this decision. If the action involves a claim of discrimination based on
5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer an d to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 c hallenge 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 revie w either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | THOMAS_TONJAIH_DE_0714_21_0113_I_1_FINAL_ORDER_2036101.pdf | 2023-05-30 | null | DE-0714 | NP |
3,080 | https://www.mspb.gov/decisions/nonprecedential/DELMERICO_SUSAN_ELIZABETH_AT_3443_17_0281_I_1_FINAL_ORDER_2036108.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUSAN ELIZABETH DELM ERICO,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-3443 -17-0281 -I-1
DATE: May 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan Elizabeth Delmerico , Jacksonville, Florida, pro se.
Thomas J. Tangi , Jacksonville, Florida, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a p etition for review of the initial decision, which
dismissed her nonselection appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 av ailable when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the 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 supplement the administrative
judge’s analysis to explain why the Board lacks jurisdiction over this appeal
based on regulations of the Office of Personnel Management (OPM) concerning
suitability actions and employment practices , we AFFIRM the initial decision.
BACKGROUND
¶2 On October 17, 2016, the agency p osted a vacancy announcement for the
position of Health System Specialist, GS -0671 -09. Initial Appeal File (IAF),
Tab 5 at 8 -12. The vacancy announcement noted that the position would be filled
using the agency’s expedited hiring authority for designated healthcare
professions . Id. at 8. Approximately 68 applicants were certified as qualified for
the position , including the appellant. Id. at 14 -16. The candidate selected for the
position was purportedly a veteran with a compensable , service -connected
disability of 30% or more. Id. at 14, 22, 34. The appellant does not have a
veterans’ preference. IAF, Tab 1 at 1, Tab 5 at 15.
¶3 Following her nonselection, the appellant filed this appeal with the Board.
IAF, Tab 1. Among other things, she alleged t hat she was denied an interview or
consideration for the position and that the agency wrongfully accounted for the
candidates’ veterans’ preference in filling the vacancy. Id. at 5.
3
¶4 Without holding the appellant’s requested hearing, the administrative jud ge
dismissed the appeal for lack of jurisdiction because the appellant failed to make
a nonfrivolous allegation2 of any matter appealable to the Board. IAF, Tab 6,
Initial Decision (ID) at 1-3. The administrative judge explained that nonselection
decisions are generally not actions that can be appealed to the Board. ID at 2 -3.
She further found that the appellant’s allegations of procedural error in the
selection process were not a source of jurisdiction and that the appellant failed to
make a n onfrivolous allegation under OPM’s employment practices regulations
because any employment practice at issue was not administered by OPM. ID at 3.
The appellant has filed a petition for review, the agency has filed a response, and
the appellant has filed a reply. Petition for Review (PFR) File, Tabs 1, 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 Generally, a nonselection is not the type of action that can be directly
appealed to the Board . Pridgen v. Office of Management and Budget ,
117 M.S.P.R. 665 , ¶ 6 (2012) ; see 5 U.S.C. §§ 7512 , 7513(d) . However, as the
administrative j udge correctly informed the appellant, there are exceptions to this
general rule. IAF, Tab 2 at 2 -5. One exception is when an employment practice
that was applied to an employee b y OPM violates a basic requirement set forth at
5 C.F.R. § 300.103 . 5 C.F.R. § 300.104 (a). Further, OPM’s re gulations provide
that a suitability action, as defined at 5 C.F.R. § 731.203 , may also be appealed to
the Board pursuant to 5 C.F.R. § 731.501 (a).3
2 A nonfrivolous allegation is an assertion that, if proven, could establish 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.
3 The Nation al Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92,
§ 1086 (f)(9), 129 Stat. 726, 1010 (2015) , amended 5 U.S.C. § 7512 to state tha t
chapter 75 of Title 5 of the U.S. Code “does n ot apply to . . . a suitability action taken
by [OPM] und er regulations prescribed by [OPM], subject to the rules pres cribed by the
President under [T itle 5] for the administration of the competitive service. ” 5 U.S.C.
4
¶6 The appellant argues on review that the agency’s expedited hiring authority
requires it to apply merit principles to assist in determini ng the best qualified
candidate and that the agency failed in this regard. PFR File, Tab 1 at 5 -6. She
seems to conten d that, if the agency had appropriately screened its candidates,
several of its interviewees would never have been interviewed for the position.
Id. at 6-7. She states that the hiring manager told her that she was the most
qualified candidate for the pos ition and that he further said that the human
resources office instructed that only veterans were to be interviewed for the
position, despite the c ertification of a number of non veterans. IAF, Tab 4
at 9-10; PFR File , Tab 1 at 7. The appellant argues that the agency ’s decision to
interview only veterans constituted a cancellation of every nonveteran’s
eligibility for employment consideration, which she asserts i s a suitability action.
PFR File, Tab 4 at 4. She also alleges that the agency’s actions violated the ba sic
requirements set forth at 5 C.F.R. § 300.103 . Id.
The appellant has failed to nonfrivolously allege that OPM’s suitability
regulations are a source of jurisdiction.
¶7 Regulations promulgated by OPM in 2008 state that a “suitability action,”
as defined in those regulations, may be appealed to the Board. 5 C.F.R.
§ 731.501 (a). Suitability determinations examine whether “a person’s character
or conduct . . . may have an impact on the integrity or efficiency of the service.”
5 C.F.R. § 731.101 . If an individual is deemed unsuitable for service based on
one or more of the factors enumerated in 5 C.F.R. § 731.202 (b), the acting agency
may take a suitability action, which is defi ned as a removal, debarment,
cancellation of eligibility, or cancellation of reinstatement eligibility. 5 C.F.R.
§ 731.203 . However, “[a] non -selection, or cancellation of elig ibility for a
§ 7512 (F). Given our finding that the appellant’s nonselection was not a suitability
action, we do not consider the effect, if any, of section 7512(F) on this appeal, an issue
that has not been addressed by either party.
5
specific position . . . is not a suitability action even if it is based on reasons set
forth in § 731.202.” 5 C.F.R. § 731.203 (b).
¶8 Assuming arguendo that the agency direc ted that only veterans be
interviewed for the position at issue in this case, we find that this does not
constitute a “cancellation of eligibility,” as that term is used at 5 C.F.R.
§ 731.20 3(a), or any other suitability action. Moreover, even if it did constitute a
cancellation of eligibility, it would only have been a cancellation of eligibility for
a specific position, which is excluded from the definition of a suitability action.
5 C.F.R. § 731.203 (b). Accordingly, we find that the appellant failed to
nonfrivolously allege that the agency took a suitability action against her.
Therefore, we conclude that 5 C.F.R. § 731.501 (a) is not a source of jurisdiction
here.
The appellant has failed to nonfrivolously allege that her claim concerns an
employment practice that OPM was involved in administering.
¶9 The Board has jurisdiction over an employment practices appeal when
(1) an appellant ’s claim concerns an “employment practice” that OPM is invo lved
in administering and (2) she has nonfrivolously allege d that the employment
practice violated one of the “ba sic requirements” set forth in 5 C.F.R. § 300.103 .
Burroughs v. Department of the Army , 116 M.S.P.R. 292 , ¶ 15 (2011) . An
“employment practice” is defined , in relevant part, as those practices “that affect
the recruitme nt, measurement, ranking, and selection of individuals for initial
appointment and competitive promotion in the competitive service, ” and includes
“the development and use of examinations, qualification standards, tests, and
other measurement instruments. ” 5 C.F.R. § 300.101 . However, a n individual
agency action or decision that is not a rule or practice of some kind does not
qualify as an employment practice , but an agency’s misapplicat ion of a valid
OPM requirement may constitute an employment practice . Sauser v. Department
of Veterans Affairs , 113 M.S.P.R. 403 , ¶ 7 (2010).
6
¶10 The administrative judge found that the appellant failed to nonfrivolously
allege that any employment practice at issue in this appeal was administered by
OPM.4 ID at 3. On review, the appellant has failed to explain why we should
reverse thi s finding, PFR File, Tabs 1, 4, and we see no reason to do so.
Accordingly, assuming without finding that the appellant has nonfrivolously
alleged that her claim concerns employment practice s, we find that she has failed
to nonfrivolously allege that OPM was involved in administering such
employment practices. IAF, Tab 4 at 7, 9-10; PFR File, Tab 1 at 7; see Prewitt v.
Merit Systems Protection Board , 133 F.3d 885 , 888 (Fed. Cir. 1998) (finding that
the appellant failed to allege that OPM was involved in the establishment of
allegedly improper minimum qualifications for the position to which he applied).
¶11 The appellant claims that t he agency erred in its application of its rules
regarding the pass -over of individuals with a veterans’ preference . PFR File,
Tab 1 at 7 -8, Tab 4 at 10. T he pass -over provisions set forth at 5 U.S.C .
§ 3318 (c) have been found to constitute an emp loyment practice applied by OPM.
Lackhouse v. Merit Systems Protection Board , 734 F.2d 1471 , 1474 (Fed. Cir.
1984) . However, because the agency used a direct -hiring authority pursuant to
10 U.S.C. § 1599c and 5 U.S.C. § 3304 (a)(3) , section 3318 was not directly
applicable to the agency, and the agency instead only had to apply the
“principles” of certain preferences for the hiring of veterans, such as the
pass-over provisions set forth at 5 U.S.C. § 3318 (c). IAF, Tab 5 at 8, 20, 30 -31.
Further, unlike sub section 3318(c), the agency’s pass -over procedures do not
involve OPM. IAF, Tab 5 at 22. Thus, the appellant’s arguments do not
constitute a nonfrivolous allegatio n that OPM was involved in administering any
employment practice at issue in this appeal.
4 Alleged v iolations involving employment practices administered or required by an
agency, rather than OPM, are actionable through the agency’s grievance process.
5 C.F.R. § 300.104 (c).
7
The appellant’s remaining arguments do not change the jurisdictional
determination.
¶12 The appellant also refers to one statement made by the agency’s
representative as an admission by the agency that it violated the merit system
principles , and she refers to another statement as an admission by the agency that
it is not standard for it to use acceptable employment practices. PFR File, Tab 1
at 5. The agency asserts tha t the first purported admission was merely a
typographical error on its part . PFR File, Tab 3 at 6; IAF, Tab 5 at 5. In the
context of all the agency’s submissions in this appeal, we agree that this is an
immaterial typographical error. Regarding the ot her purported admission,
concerning the agency’s use of acceptable employment practices, we find that the
appellant has mi sconstrued the pleading and the agency’s representative did not
make the admission alleged by the appellant. IAF, Tab 5 at 6.
¶13 Finally, the appellant asserts that she was denied discovery in her appeal.
PFR File, Tab 1 at 5 -8. However, we find that the appellant has failed to
demonstrate how the absence of discovery prejudiced her ability to make a
nonfrivolous allegation on the dispositive jurisdictional issue. See Vores v.
Department of the Army , 109 M.S.P.R. 191 , ¶ 14 (2008), aff’d , 324 F. App’x 883
(Fed. Cir. 2009); Sommers v. Department of Agriculture , 62 M.S.P.R. 519 , 523
(1994); 5 C.F.R. § 1201.115 . Accordingly, we affirm the initial decision and
dismiss the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in thi s matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal righ ts, 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 jurisdic tion. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dism issal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
10
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt jurisdiction.6 The court of appeals must receive your
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
11
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DELMERICO_SUSAN_ELIZABETH_AT_3443_17_0281_I_1_FINAL_ORDER_2036108.pdf | 2023-05-30 | null | AT-3443 | NP |
3,081 | https://www.mspb.gov/decisions/nonprecedential/ANDREWS_FORREST_PH_4324_15_0492_I_2_FINAL_ORDER_2036115.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FORREST ANDREWS,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER S
PH-4324 -15-0492 -I-2
PH-4324-16-0329 -I-1
DATE: May 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan L. Lescht , Esquire, and Sara B. Safriet , Esquire, Washington, D.C.,
for the appellant.
Alexander Donart , Esquire, and Lisa Pyle , Esquire, Washington, D.C., for
the agency.
Gregory Owen Friedland , Cincinnati, Ohio, 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 Uniformed Servi ces
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301 -4335) (USERRA). On review, the appellant does not
challenge any of the administrative judge’s findings regarding his USERRA
claims, but rather, alleges th at the administrative judge abus ed her discretion
regarding her rulings on disco very. Petition for Review File, Tab 5 at 6, 17 -27.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judg e’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argu ment is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
An administrative judge has broad discretion in ruling on discovery matter s, and,
absent an abuse of discretion, the Board will not find reversible error in such
rulings. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 16 (2016). We find
no abuse of discretion by the administrative judge. Therefore, we DENY the
petition for r eview and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113 (b).
3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fa ll within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.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
with the district court no later than 30 calenda r days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
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 c laims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither 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 “Gu ide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants that
any attorney will accept representation in a given case.
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ANDREWS_FORREST_PH_4324_15_0492_I_2_FINAL_ORDER_2036115.pdf | 2023-05-30 | null | S | NP |
3,082 | https://www.mspb.gov/decisions/nonprecedential/SHARP_CASANDRA_MARIE_AT_0752_17_0626_I_1_FINAL_ORDER_2036184.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CASANDRA MARIE SHARP ,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
AT-0752 -17-0626 -I-1
DATE: May 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Casandra Marie Sharp , Dandridge, Tennessee, pro se.
Angela Kreitzer , 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 probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that the agency should have produced the
Standard Form 50 effecting her appointment, and she contends that the agency
terminated her for p reappointment reasons . 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 Federal Regulations, secti on 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the administrative judge’ s analysis to find that the
appellant was not entitled to the proce dural protections of 5 C.F.R. § 315.805 , or
to appeal her termination for preappoi ntment reasons under 5 C.F.R. § 315.806 ,
because the agency appointed her to an except ed-service position, and these rights
only apply to individuals in the competitive service , we AFFIRM the initial
decision. Initial Appeal File , Tab 11 at 11 ; see Mancha v. Department of
Homeland Security , 112 M.S.P.R. 216 , ¶ 10 (2009) (finding that 5 C.F.R.
§ 315.806 does not apply to an appellant appointed to an excepted -service
position ).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201 .113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
your claims determines the time limit for seeking such review and the appropriate
forum wi th 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 l aw applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possi ble choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review i n general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the f ollowing
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
4
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U. S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses th e services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were af fected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a c ivil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Per ry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your r epresentative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion , sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact in formation for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
5
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, 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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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
6
competent jurisdiction.3 The court of appeals m ust receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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.
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 | SHARP_CASANDRA_MARIE_AT_0752_17_0626_I_1_FINAL_ORDER_2036184.pdf | 2023-05-30 | null | AT-0752 | NP |
3,083 | https://www.mspb.gov/decisions/nonprecedential/MORRIS_TIMOTHY_W_AT_531D_22_0094_I_1_FINAL_ORDER_2035460.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY W. MORRIS,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMIN,
Agency.
DOCKET NUMBER
AT-531D -22-0094 -I-1
AT-0731 -22-0113 -I-1
AT-3443-22-0114 -I-1
DATE: May 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy W. Morris , Winter Garden, Florida, pro se.
Daniel Shaver , Esquire, and Samantha R. Cochran , Esquire , Kennedy Space
Center , Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed petition s for review of three initial decision s, which
dismissed his appeals of various agency actions, including a negative suitability
determination, a denial of his within -grade increase (WIGI), and an involuntary
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
retirement, for lac k of jurisdiction.2 On peti tion for review, the appellant largely
argues that the “[initial] decisions were all persuaded by false information” from
the agency and requests “a new group” to review h is appeals. 0094 Petition for
Review File, Tab 1 at 4 -5. Generally, we grant petitions such as th ese 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 ap plication 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 affect ed the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in th ese appeal s, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition s for review.
Therefore, we DENY the petition s for review and AFFIRM the initial decision s,
which are now the Board’s final decision s. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtai n review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 In Morris v. National Aeronautics and Space Administration , MSPB Docket No.
AT-531D -22-0094 -I-1, the appellant challenges his WIGI denial. In Morris v. National
Aeronautics and Space Administration , MSPB Docket No. AT -3443 -22-0114 -I-1, he
challenges the alleged involuntariness of his 2014 retirement. In Morris v. National
Aeronautics and Space Administration , MSPB Docket No. AT -0731 -22-0113-I-1, he
challenges a negative suitabi lity determination. Although the three appeals were
adjudicated separately below, we JOIN the three appeals on review because the facts are
interrelated and joinder will expedite processing without adversely affecting the
interests of the parties. See 5 C.F.R. § 1201.36 (b).
3 Since the issuance of the initial decision s in th ese matter s, the Board may have
updated the notice of review rights included in final decisions. As indicated in the
notice, the Board cannot advise which option is most appropriate in any matter.
3
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a genera l rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision . 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for t he Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by an y attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appro priate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Prote ction Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) 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). 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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If 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.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 2 7, 2017. The All Circuit Review Act, signed into law by the President on
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 Fed eral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MORRIS_TIMOTHY_W_AT_531D_22_0094_I_1_FINAL_ORDER_2035460.pdf | 2023-05-26 | null | AT-531D | NP |
3,084 | https://www.mspb.gov/decisions/nonprecedential/RHODES_TONYA_EVETTE_AT_0752_12_0316_X_1_FINAL_ORDER_2035500.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TONYA EVETTE RHODES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -12-0316 -X-1
DATE: May 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tonya Evette Rhodes , Seffner, Florida, pro se.
Kristin Langwell , Esquire, and Caroline E. Johnson , Saint Petersburg,
Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 In a December 10, 201 3 compliance initial decision, the administrative
judge found the agency in noncompliance with the March 15, 2013 initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
decision2 reversing the appellant’s removal . Rhodes v. Department of Veterans
Affairs , MSPB Docket No. AT -0752 -12-0316 -I-1, Tab 48, In itial Decision ( I-1
ID); Rhodes v. Department of Veterans Affairs , MSPB Docket No. AT-0752 -12-
0316 -C-1, Compliance File, Tab 11, Compliance Initial Decision ( C-1 CID). On
April 13, 2015, September 25, 2015, July 18, 2016, and April 26, 2022, we issued
nonprecedential orders finding the agency in partial compliance with the initial
decision . Rhodes v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -
12-0316 -X-1, Compliance Referral File (CRF), Tab 5, Tab 12, Tab 30, Tab 46.
For the reasons discusse d below, we now find the agency in compliance and
DISMISS the petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 On March 15, 2013, the administrative judge issued an initial decision
reversing the appellant’s removal and requir ing the agency to restore her effective
February 15, 2012. I-1 ID at 1, 16 -17. The decision required the agency to pay
her appropriate back pay and benefits. Id. As explained in footnote 2, neither
party filed a timely petition for review, and thus the initial decision became the
final decision of the Board with respect to the appellant’s removal.
¶3 Following the appellant’s first petition for enforcement,3 the administrative
judge issued a compliance initial decision on December 10, 2013, findin g the
2 On March 10, 2021 —seven years after issuance of the initial decision , and six and a
half years after issuance of the compliance initial decision underlying the instant
compliance referral matter —the appellant petitioned for review of the initial decision .
Rhodes v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -12-0316 -I-1,
Petition for Review File, Tab 1. On April 26, 2022, the Board dismissed her petition
for review as untimely filed without good c ause for delay. Rhodes v. Department of
Veterans Affairs , MSPB Docket No. AT -0752 -12-0316 -I-1, Final Order (Apr . 26, 2022) .
Thus, the operative d ecision regarding the appellant’s reversed removal remains the
March 15, 2013 initial decision.
3 On March 5, 2021, the appellant filed a second petition for enforcement. Rhodes v.
Department of Veterans Affairs , MSPB Docket No. AT -0752 -12-0316 -C-2, Compliance
File ( C-2 CF), Tab 1. On March 19, 2021, the administrative judge dismissed the
petition for enforceme nt, finding it had been docketed in error. The administrative
3
agency in noncompliance with the Board’s final decision . C-1 CID. The
administrative judge held that the agency failed to adequately explain its back pay
calculations, including how it calculated the back pay period and interest
amounts. C-1 CID at 3-4. The administrative judge further held that the agency
failed to provide evidence to show that it made appropriate transfers to the
appellant’s Thrift Savings Plan account and her Federal Employees’ Group Life
Insurance. Id. Finally, the administra tive judge found that the agency admitted it
may have erroneously submitted a debt notice to the Office of Personnel
Management regarding the appellant’s Federal Employees Health Benefits
(FEHB) plan and had not provided evidence that it corrected such err or. Id.
¶4 On January 13, 2014, the agency notified the Board of the compliance
actions it had taken pursuant to the compliance initial decision.4 CRF, Tab 1.
There followed a series of Board orders finding the agency noncompliant with its
obligations as set forth in the initial decision, culminating in our April 26, 2022
Order , which required the agency to do the following:
judge found that the matters raised by the appellant pertained to her first petition for
enforcement or her underlying removal appeal, and forwarded the pleadings to the
Office of the Clerk of the Board for consideration. C-2 CF, Tab 7, Compliance Initial
Decision (C-2 CID) . The Clerk of the Board construed the pleadings as a petition for
review of the underlying removal appeal, which ultimately was adjudicated as described
above in footnote 2 . The Clerk of the Board also added the pleadings to the instant
compliance referral file as Tab 42, and we address them infra to the extent necessary to
our decision in this matter.
4 In the compliance initial decision , the administrative judge informed the agency that,
if it decided to take the actions required by the decision, it must submit to the Office of
the Clerk of the Board, within the time limit for filing a petition for review under
5 C.F.R. § 1201.114 (e), a statement that it ha d taken the actions identified in the
compliance initial decision, along with evidence establishing that it has taken those
actions. C-1 CID at 5-6; 5 C.F.R. § 1201.183 (a)(6)(i). She also informed the parties of
their option to request Board review of the compliance initial decision by filing a
petition for review by January 14, 2014 , the date on which the findings of
nonco mpliance would become final unless a petition for review was filed. C-1 CID
at 6; see 5 C.F.R. §§ 1201.114 (e), 1201.183(a)(6)(ii) , 1201.183(b) . Neither party filed
an administrative pe tition for review of the compliance initial decision.
4
1. Submit evidence that it waived the $74.28 debt it had assessed
against the appellant for retirement contributions, along with any
interest assessed against the appellant in connection with this
debt.
2. Submit evidence that it paid the appellant $4,366.56 to refund
her f or FEHB premiums erroneously withheld between April 1,
2012, and May 5, 2013 ($198.48 per pay period x 22 pay
periods), along with interest, and an explanation of the interest
calculations.
CRF, Tab 46 at 5, 7.
¶5 Following this order, both parties filed multiple submissions. For the
reasons discussed below, we find the agency has complied with the obligations
set forth above and in our April 26, 2022 Order . We reject the appellant’s
arguments that she is entitled to compensatory damages or attorney fees for work
performed in non -MSPB proceedings not related to her prevailing clams before
MSPB , and we decline her invitations to consider claims of error she did not
timely raise in her late -filed petition for review of the initial decision in her
removal appeal .
ANALYSIS
¶6 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. Vaughan v. Department of
Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. The appellant may rebut the agen cy’s evidence of
compliance by making “specific, nonconclusory , and supported assertions of
5
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325 , ¶ 5 (2010).
Waiver Notice for Debt Generated by Lack of Retirement Contributions
¶7 In our April 13, 2015 Order, we found that the agency satisfactorily
explained that the appellant owed a $74.28 debt for retirem ent contributions that
the agency erroneously failed to deduct from her back pay payment. CRF, Tab 5
at 9. However, in our September 25, 2015 Order, we found that the agency had
failed to submit evidence that it provided her any applicable notice and
opportunity to request waiver of this debt mandated by her collective bargaining
agreement. CRF, Tab 12 at 8 -9. In our April 26, 2022 Order, we directed the
agency to waive this debt and any interest outstanding as a result of the
appellant’s failure to pay the debt. CRF, Tab 46 at 5.
¶8 On August 2, 2022, the agency filed a submission asserting that it “did
waive Appellant’s debt on or about June 6, 2022.” CRF, Tab 55 at 4. The agency
cited as support its Exhibit 1; however, this exhibit is missing from the
submission. Id. at 2, 4. On January 5, 2023, the agency filed an additional
submission asserting that it had waived both the debt and the interest, and
included a form appearing to show that these obligations had been waived. CRF,
Tab 60 at 4, 5. The appellant did not respond. In view of this evidence , we find
the agency in compliance with respect to this debt and any associated interest.
FEHB Premiums Withheld After the Back Pay Period
¶9 In our September 25, 2015 Order, we held that the agency failed adequately
to explain whether and how it refunded the $4,366.56 it owed the appellant for
FEHB premiums erroneously withheld between April 1, 2012, and May 5, 2013
($198.48 per pay period x 22 pay periods). CRF , Tab 12 at 9. Although the
agency claimed it had credited the full amount to the appellant’s outstanding
annual leave debt, its documents appeared to show otherwise. Id. After
considering the agency’s explanation for this discrepancy, we found in our
6
April 26, 2022 Order that the agency had erroneously deducted the $4,366.56
from the appellant’s annuity as payment for the appellant’s $6,800.63 debt for
annual leave ( which we previously found to be valid, CRF, Tab 12 at 7 -8). CRF,
Tab 46 at 6 -7. Thus, we found that the agency had erroneously required the
appellant to pay $4,366.56 on top of the correctly assessed $6,800.63 debt for
annual leave, and we ordered the agency to pay the appellant $4,366.56 plus
interest. Id. at 7. We explained that the int erest calculation should begin from
the dates the FEHB premiums were originally withheld and continue to within
30 days of the date the payment was made, pursuant to 5 U.S.C. § 5596 (b)(2)(B).
Id. We further ordered the agency to submit a narrative explanation of its interest
calculations and documentary evidence of payment of the principal amount and
interest. Id.
¶10 The agency’s August 2, 2022 submission explained that it paid the appellant
the requ ired $4,366.56, plus $2,046.69 in interest, for a total payment of
$6,413.25. CRF, Tab 55 at 5. The agency stated that it used the Office of
Personnel Management back pay interest calculator, and inputted the entire
amount owed to the appellant as if it were owed as of April 1, 2012, the starting
date of the first of 22 pay period s for which FEHB premiums were erroneously
withheld. CRF, Tab 46 at 7. The agency’s evidentiary submission indicates that
the start date was actually March 31, 2012 —a day earli er than ordered —and that
the end date was August 1, 2022, which is consistent with the order to end the
interest calculation within 30 days of the date it was paid. Id. at 8. The agency
included the chart of the changes in interest, automatically calculated by the back
pay calculator. Id. at 8-10. The agency submitted an additional pleading on
October 5, 2022, showing that the above amount was disbursed to appellant on
August 9, 2022. CRF, Tab 58 at 4, 6 -7.
¶11 We see no errors adverse to the appellant in the agency’s calculation —
indeed, by crediting the appellant with the full amount of the d ebt as of March 31,
2012, rather than starting with only the amount actually withheld th at pay period
7
and adding the remaining withhold ing amounts in the pay periods in which they
were originally withheld, it is likely the agency paid the appellant more interest
than was required.
¶12 The appellant challenges the agency’s explanation of the int erest calculation
and overall payment of $6,413.25 on the basis that it is less than the $10,000 she
states the agency offered her in settlement of this claim. CRF, Tab 57 at 5.
However, it is well settled that “an unaccepted offer of settlement is ordin arily
not admissible evidence to show the existence or extent of liability .” Special
Counsel v. Costello , 75 M.S.P.R. 562 , 609 (1997) (citing Cheyenne River Sioux
Tribe v. United States , 806 F.2d 1046 , 1050 (Fed. Cir. 1986) , reversed on other
grounds by Costello v. Merit Systems Protection Board , 182 F.3d 1372 (Fed. Cir.
1999). Therefore, that the agency allegedly offered more in settlement than it
ultimately p aid is irrelevant to whether the agency complied with its obligations.
The appellant further states that the agency’s explanation is “convoluted ” and
“makes no sense, ” CRF, Tab 57 at 5 ; but as discussed above, the agency’s
calculations appear correct or even more generous than required . Accordingly,
we find the agency has complied with its obligation to reimburse the appellant for
the FEHB premiums debt, with interest.
Appellant’s Remaining Claims
¶13 In various submissions, the appellant raises multiple ot her claims of
noncompliance. As explained below, these are either outside the scope of our
review or non-meritorious , and thus do not bar a finding of compliance.
¶14 The appellant requests attorney fees related to work performed in her equal
employment oppor tunity ( EEO ) and court cases, both of which concern her
disability discrimination claims adjudicated by the Equal Employment
Opportunity Commission ( EEOC ). CRF, Tab 48 at 7, Tab 49 at 3 ; see Rhodes v.
Department of Veterans Affairs , 828 F. App’x 685, 686 (11th Cir 2020)
(nonprecedential) (explaining the history of the appellant’s EEOC and related
8
court litigation). The appellant states that she prevailed before the EEOC , and the
decision in her Eleventh Circuit case confirms that the EEOC awarded her
$30, 994.90 in compensatory damages for her disability discrimination claims.
CRF, Tab 57 at 5; Rhodes , 828 F. App’x at 686. We must deny her request for
attorney fees related to these claims, however. The Board generally does not
award attorney fees for work performed in other forums unless such work
“significantly contribute [d] to” success in the MSPB appeal . Driscoll v. U.S
Postal Service , 116 M.S.P.R. 662 , ¶ 13 (2011) ; Sowa v. Department of Veterans
Affairs , 96 M.S.P.R. 408 , ¶ 12 (2004) (denying attorney fees for work performed
in grievance and EEOC proceedings on issues irrelevant to the appellant’s victory
before the Board) . The appellant prevailed in her original removal appeal solely
on the ground that the agency failed to prove the charge u nder which the agency
removed her. I-1 ID at 12. The administrative judge rejected the appellant’s
affirmative defenses of race discrimination and retaliation based on prior EEO
activity. I-1 ID at 14, 15. The appellant’s success before EEOC on her disability
discrimination claims thus did not contribute (at all, let alone “significantly”) to
her success in her removal appeal . Driscoll , 116 M.S.P.R. 662 , ¶13 ; see CRF,
Tab 57 at 5 ( the appellant concedes this award pertained solely to her EEOC
claims) ; CRF, Tab 59 at 4 ( the appellant states she had “an EEO disability and
MSPB wrongful term ination pending at the same time”) . Accordingly, we cannot
award attorney fees for this work.5
5 However, if the appellant has retained counsel as part of her MSPB compliance
matters, she may file a timely motion for attorney fees within 60 days of this Final
Order and present argument and evidence related to whether her fees expended in
obtaining a favorable compliance decision merit an attorney fee award. 5 C.F.R.
§ 1201.203 (d). Her attorney f ee request must be limited to work performed by her
counsel in her MSPB compliance matters and must concern work performed for the
issue(s) on which she prevailed in her compliance matters. See Shelton v.
Environmental Protection Agency , 115 M.S.P.R. 177, ¶12 (2010).
9
¶15 The appellant argues that she alleged disability discrimination claims in her
original removal appeal, but that the administrative judge failed to rule on them
(while, however, ruling on her race discrimination and retaliation claims). CRF,
Tab 54 at 7 . The appellant’s prehearing submission does not list disability
discrimination (or race discriminatio n) among the “statement of issues” she
presented before the administrative judge; the sole discrimination -related
affirmative defense listed is retaliation for prior EEO activity. Rhodes v.
Department of Veterans Affairs , MSPB Docket No. AT -0752 -12-0316 -I-1, Initial
Appeal File, Tab 37 at 3. Regardless, assuming arguendo that the appellant
alleged disability discrimination elsewhere in the record and that the
administrative judge therefore erred in not addressing it, the appellant failed to
challenge this error through a timely petition for review. See Rhodes v.
Department of Veterans Affairs , MSPB Docket No. AT -0752 -12-0316 -I-1, Final
Order (Apr. 26 , 2022) ; supra n.2. We therefore reject her attempt to raise this
claim in this compliance proceeding , and confine our consideration and analysis
to the compliance i ssues discussed above.
¶16 We further reject the appellant’s related argument that the agency’s
noncompliance with its obligations as set forth in the original removal decision ,
compliance initial decision, and subsequent Board decisions constitutes
retaliatio n for the appellant’s prior discrimination complaints. See CRF , Tab 54
at 7-8 (arguing that agency’s noncompliance constitutes ongoing retaliation under
the “continuing violations” theory) ; CRF , Tab 42 (same) . The sole issue before
the Board on a petitio n for enforcement is whether the agency complied with the
Board’s prior orders. 5 U.S.C. §1204 (a)(2); 5 C.F.R. § 1201.181 (a). In this
context, the Board does not adjudicate claims that the alleged noncompliance was
discriminatory. Arredondo v. U.S. Postal Service , 89 M.S.P.R. 40 , n.5 (2001)
(finding that the Board lacks jurisdiction to adjudicate claim that agency’s
compliance actions constituted “continuing discrimination”) (citing King v. Reid ,
59 F.3d 1215 , 1217 -19 (Fed. Cir. 1995)) . To the extent the appellant’s argument
10
could be construed as a claim that the agency acted in bad faith throughout this
compliance litigation , we deny it . The proceedings have been protracted and the
appellant’s frustration is understandable, but the procedural history is complex
and complicated by the appellant’s repeated overlapping filings and litigation in
multiple forums . Moreover, a significant portion of the delay is due to the
Board’s 5-year lack of quorum, which prevented t he Board from issuing its
April 26, 2022 Order before that date. The agency has complied, in reasonably
prompt fashion, with its obligations as set forth in that Order .
¶17 Finally, we d eny the appellant’s claims for compensatory damages related
to her removal (which the original removal decision reversed) and her
disability -related EEOC proceedings. CRF, Tab 49 at 3, Tab 57 at 4 -5, Tab 59
at 4. The original removal decision and the sub sequent compliance decisions did
not order compensatory damages, and thus such damages are beyond the scope of
this compliance matter. To the extent the appellant seeks compensatory damages
in connection with her EEOC proceedings, she would have to file s uch a claim
with EEOC ; and indeed, she already has, and received an award of $30,994.90.
Rhodes , 828 F. App’x at 686. She has litigated this issue to finality, as explained
in the Eleventh Circuit’s decision, and may not now collaterally attack or reopen
it in these compliance proceedings. Although the appellant does not feel fairly
compensated for the adversities she h as suffered, we find that she has received all
the relief to which she is entitled before the Board (with the exception of any
potential future meritorious attorney fee claim, as noted above in footnote 5).
¶18 This is the final decision of the Merit Systems P rotection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations,
section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1) ).
11
NOTICE TO THE APPELL ANT REGARDING
YOUR RIG HT 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 out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
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 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 courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a gene ral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevan ce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action tha t is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
13
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an app ropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action in volves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other secur ity. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
14
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited 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 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 addre ss:
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.
15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
Contact information for the courts of appeals can be 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 | RHODES_TONYA_EVETTE_AT_0752_12_0316_X_1_FINAL_ORDER_2035500.pdf | 2023-05-26 | null | AT-0752 | NP |
3,085 | https://www.mspb.gov/decisions/nonprecedential/YOUNG_DENNIS_A_AT_0831_18_0314_X_1_FINAL_ORDER_2035527.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DENNIS A. YOUNG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -18-0314 -X-1
DATE: May 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis A. Young , Destin, Florida, pro se.
Tynika Faison Johnson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 On March 13, 201 9, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding the Office
of Personnel Management (OPM) in partial noncompliance with her prior initial
decision issued on August 14, 2018.3 Young v. Office of Personnel Management ,
MSPB Docket No. AT -0831 -18-0314 -C-1, Compliance File (CF), Tab 11,
Compliance Initial Decision (CID). That decision reversed OPM’s final decision
recomputing the appellant’s annuity based upon his failure to make a deposit for
his post -1956 military serv ice. Young v. Office of Personnel Management , MSPB
Docket No. AT -0831 -18-0314 -I-2, Refiled Appeal File (RAF), Tab 16, Refiled
Initial Decision (RID). For the reasons discussed below, we find OPM in
compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMEN TS AND EVIDENCE ON C OMPLIANCE
¶2 The administrative judge’s March 13, 2019 compliance initial decision
found that OPM had not properly calculated the period for which the appellant
owed interest on his post -1956 service deposit. CID at 3. OPM had charged
interest for the period between 1986 and 2017. Id. The administrative judge
noted that OPM’s regulations state that interest is charged to the date of deposit
or commencing date of annuity, whichever is earlier. Id.; see 5 C.F.R.
§ 831.105 (d). Because the appellant’s annuity began on March 1, 2009, and his
deposit was made sometime after September 18, 2018, the administrative judge
found that the 2009 date is earlier, and should therefore mark the end of the
interest period. CID at 3 . The administrative judge therefore ordered OPM to
recalculate the appellant’s post -1956 deposit using the interest period from 1986
3 The August 14, 2018 initial decision became the final decision of the Board after
neither party filed a petition for administrative review by September 18, 2018. RID
at 6.
3
to March 1, 2009, and to refund to the appellant all money he had paid in excess
of the recalculated de posit amount. CID at 4.
¶3 As neither party filed any submission with the Clerk of the Board within the
time limit set forth in 5 C.F.R. § 1201.114 , the administrative judge’s findings o f
noncompliance have become final, and the appellant’s petition for enforcement
has been referred to the Board for a final decision on compliance pursuant to
5 C.F.R. § 1201.183 (b)-(c). Young v. Office of Personnel Management , MSPB
Docket No. AT -0831 -18-0314 -X-1, Compliance Referral File (CRF), Tab 1. On
April 23, 2019, the Office of the Clerk of the Board issued an acknowledgement
order directing OPM to submit evidence of compliance wi thin 15 calendar days
and affording the appellant the opportunity to respond to the agency’s evidence
within 20 calendar days of OPM’s submission. Id. at 2.
¶4 On April 25, 2019, the appellant submitted a pleading in which he asserted
that OPM had not contac ted him or refunded him any money. CRF, Tab 2 at 1.
OPM responded on May 21, 2019, stating that it had recalculated the interest on
the appellant’s deposit and that, on April 30, 2019, it had issued the appellant a
refund in the amount of $1,711.46, via electronic funds transfer. CRF, Tab 3 at 4.
¶5 The Office of the Clerk of the Board issued a second order on June 17,
2019, directing OPM to submit a detailed narrative explanation setting forth how
it calculated the refund due to the appellant. CRF, Tab 4. OPM submitted a
response on June 26, 2019, which stated that documents attached to one of its
previous submissions, a December 4, 2018 Agency Motion to Dismiss, explained
how the interest amount was calculated. CRF, Tab 5; CF, Tab 9, at 12. OPM
state d that this document, titled “Military Deposit Worksheet,” showed the
amount of interest accrued between October 1, 2009, through October 1, 2017,
and that those amounts totaled the amount it had refunded to the appellant,
$1,711.46. Id. OPM further asse rted that the appellant had not contested that he
had received the payment. Id.
4
¶6 Because the evidence provided by OPM addressed interest payments for the
period of October 1, 2009, through October 1, 2017, but not the period between
March 1, 2009, and Oc tober 1, 2009, the Board issued another order on
December 4, 2019, directing OPM to provide evidence that it had calculated the
amount of interest paid by the appellant between March 1 and October 1, 2009,
and refunded that amount to the appellant. CRF, T ab 6.
¶7 OPM submitted a response on March 4, 2020, reiterating that it had issued a
refund to the appellant of $1,711.46 on April 30, 2019. CRF, Tab 7 at 4. OPM
attached a copy of a letter sent to the appellant on that date, which explained that
interest on a military deposit is compounded annually, and, in the appellant’s
case, was computed based on a final Interest Accrual Date of October 1, 2008.
Id. at 5-6. Because of the once -annual accrual of interest, all interest on the
deposit accrued on Octobe r 1, 2009, and no additional interest would have
accrued between March 1 and October 1. Id. at 5. OPM also attached copies of
the military deposit worksheets showing the amount of the deposit, the correct
amount, and the amount of the refund. Id. at 5, 7-11. The appellant did not
submit a response, despite having been informed that failure to respond might
cause the Board to find he was satisfied and dismiss the petition for enforcement.
CRF, Tab 6, at 3.
¶8 We find that OPM has produced sufficient evide nce to establish that it paid
the appellant the appropriate amount of disability retirement benefits. OPM
supplied evidence that it recalculated the interest due on the appellant’s post -1956
military deposit and refunded to him the amount of the overcharg e via a direct
deposit payment of $1,711.46 on April 30, 2019. CRF, Tab 7 at 4. OPM has
explained that interest accrues on a yearly basis; therefore, the interest accrued
annually on October 1, 2009, and no additional amount would have been due for
the p eriod between March 1 (the date following the appellant’s separation date of
February 28, 2009) and October 1, 2009. CRF, Tab 7 at 5.
5
¶9 In light of OPM’s evidence of compliance and the appellant’s failure to
respond, we find OPM in compliance and dismiss th e petition for enforcement.
This is the final decision of the Merit Systems Protection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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 up dated
the notice 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 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
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.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 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 thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial rev iew either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
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. 1 510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | YOUNG_DENNIS_A_AT_0831_18_0314_X_1_FINAL_ORDER_2035527.pdf | 2023-05-26 | null | AT-0831 | NP |
3,086 | https://www.mspb.gov/decisions/nonprecedential/WASHINGTON_ANSILEEN_J_CH_0752_16_0387_I_1_FINAL_ORDER_2035573.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANSILEEN J. WASHINGT ON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -16-0387 -I-1
DATE: May 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
Nikolai G. Guerra , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant h as filed a petition for review of the initial decision, which
sustained her demotion from an EAS -22 Manager of Customer Service position to
an EAS -17 Supervisor of Customer Service position based on her failure to
discharge her duties resulting in the delay of certified and registered mail.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the pet itioner 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 In her petition for review, the appellant alleges that, among other things, the
administrative judge made several factual errors in the initial decision as to what
constitutes delay of the mail and the administrative judge misinterpreted the
charge . The appellant additionally asserts that the agency failed to identify the
specific duties that she failed to discharg e and that resulted in the delay of the
mail . Petition for Review (PFR) File, Tab 3 at 5 -12. The appellant further
asserts that the administrative judge erred in finding that the deciding official
properly relied on prior disciplinary actions, which the appellant contends had
expired and should have been removed from her official record. Id. at 13 -21.
Finally, the appellant argues that the penalty was not within the bounds of
reasonableness. Id. at 13, 21 -24.
¶3 Although her language could have been more precise, it is clear that
regarding delay of the ma il, the administrative judge relied on the date that
certified mail was dispatched from the facility the appellant managed and not the
3
date that the postal customer received the certified mail , which requires the
recipient’s signature and therefore could b e received several days after the mail
was di spatched and delivery attempted. Initial Appeal File (IAF), Tab 55, Initial
Decision (ID) at 6. The agency charged the appellant with failure to discharge
duties resulting in the delay of mail , and, contrary to the appellant’s argument ,
there is no basis for considering the charge as one of negligent supe rvision. PFR
File, Tab 3 at 7; see Rodriguez v. Department of Homeland Security ,
117 M.S.P.R. 188 , ¶ 8 (2011) (stating that t he Board will not sustain an agency
action on the basis of charges that could have been brought but were not ). While
the appe llant argues that it was her subordinates who failed to timely move the
mail and that she took corrective steps when the delays were brought to her
attention, the administrative judge correctly found that the evidence shows that
the appellant failed to dis charge her managerial responsibilities resulting in a
delay of the mail. PFR File, Tab 3 at 11 -12; ID at 11. In sum, we discern no
error in the administrative judge’s well -reasoned findings that the agency proved
the charged misconduct , and there is no b asis to disturb the initial decision in this
regard. See Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016)
(finding no r eason to disturb the administrative judge’s findings whe n she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on the issue of credibility); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
¶4 In demoting the appellant in the first part of 2016, the agency considered a
2014 letter of warni ng in lieu of a 7 -day suspension and a 2014 letter of warning
in lieu of a 14 -day suspension. IAF, Tab 5 at 34 -39, 94 -97. The appellant argues
that, under the U.S. Postal Service’s Employee and Labor Relations Manual
(ELM), at the time the agency issued its decision demoting her , both of the prior
suspensions had expired based on the passage of time , should therefore have been
removed from her official record, and should not have been considered in
determining the penalty for the misconduct at issue in th is appeal. PFR File,
4
Tab 3 at 13 -21. The agency, in contrast, maintains that under the ELM the
critical date in determining whether prior discipline can be considered in a
subsequent disciplinary action is not the date of the decision in the subsequent
action but the date of the proposal notice in the subsequent action .
¶5 In Gose v. U.S. Postal Service , 451 F.3d 831 , 835 -37 (Fed. Cir. 2006), the
Board’s reviewing court found that the U.S. Postal Service’s interpretation of the
ELM is entitled to deference. Based on our review of the ELM provisions at
issue, including sections 651.62 and 651.66, we agree with the administrative
judge’s reasoning that the agency’s interpretation of the ELM provision is correct
and that it was proper to consider the prior discipline . ID at 13 -14. Furthermore,
the appellant’s interpretation would , among other things, create a disincentive for
the U.S. Postal Service to grant an employee an extension of time to respond to a
notice of proposed disciplinary action , to take extra time to judiciously consider
an employee’s reply to a proposed action and consider various options, or to
engage in pre -decisional mediation, as any delay might cause a prior disciplinary
action cited in the proposal notice to expire. The agency’s failure to grant the
additional time for an employee to reply or to judiciously consider an employee’s
reply t o a proposed action and consider various options could, however, expose
the agency to claims of due process violations and harmful procedural error. A
disincentive for the U.S. Postal Service to engage in pre -decision mediation
would thwart the public pol icy interest in favor of settlement. See, e.g ., Bruhn v.
Department of Agriculture , 124 M.S.P.R. 1, ¶ 19 (2016) (stating that last -chance
settlement agreements, like settlement agreements generally, serve the important
public policy of avoiding unnecessary litigation and encouraging fair and speedy
resolution of issues ).
¶6 Finally, regarding the penalty, the administrative judge correc tly found that,
when, as here, all of the agency’s charges have been sustained, the Board will
review an agency -imposed penalty only to determine if the agency considered all
of the relevant factors and exercised management discretion within the tolerable
5
limits of reasonableness. ID at 18; see Archerda v. Department of Defense ,
121 M.S.P.R. 314 , ¶ 25 (2014). We agree with the administrative judge that the
agency properly considered the relevant factors in deciding on the demotion
penalty. ID at 18 -23. The penalty is within the tolerable limits of
reasonableness .2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final de cision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights de scribed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follo w all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read 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 The appellant cites U.S. Postal Service v. Gregory , 534 U.S. 1 (2001 ), to suppor t her
interpretation of the ELM provisions . PFR File, Tab 3 at 16 -18. The Court in Gregory
held that an agency and the Board may consider an employee’s past disciplinary record
when setting a penalty for misconduct, even if it is the subject of a pending grievance.
Gregory , 534 U.S. at 8 -11. Gregory does not address the issue of when a prior
disciplinary action expires and is thus inapposite to this case. The appellant also relies
on a nonprededential Board case, Sayjai v. U.S. Postal Service , MSPB Doc ket
No. SF-0752 -11-0285 -I-1, Final Order (Nov. 29, 2011), in support of her interpretation
of the ELM. PFR File, Tab 3 at 19 -20. Such decisions have no precedential value.
5 C.F. R. § 1201.117 (c).
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 m atter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that 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 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 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 only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 E EOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to t he Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your 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 Fed eral Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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,” 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.
Contact information 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 | WASHINGTON_ANSILEEN_J_CH_0752_16_0387_I_1_FINAL_ORDER_2035573.pdf | 2023-05-26 | null | CH-0752 | NP |
3,087 | https://www.mspb.gov/decisions/nonprecedential/PETERSEN_MARTIN_F_DE_0714_18_0420_I_1_FINAL_ORDER_2035597.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARTIN F. PETERSEN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0714 -18-0420 -I-1
DATE: May 26, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Ruth Kathryn Russell , Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
For the reasons set forth below, we DISMISS the appeal as settled .
¶2 After the appellant filed his petition for review, the agency submitted a
document titled “ SETTLEMENT AGREEMENT, ” signed and dated by the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant and his representative on April 26 and 27, 2023, respectively, and by
the agency on May 3, 2023. Petit ion for Review (PFR) File, Tab 6 . The
document provides, among other things, for the withdrawal of the present appeal .
Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement , whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R . 146,
149 (1988). In addition, before accepting a settlement agreement into the r ecord
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it . See Delorme v.
Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 10 -11 (2017).
¶4 Here, we find that the parties have entered into a settlement agreement ,
understand its terms, and intend for the agreement to be entered into the record
for enforcemen t by the Board. PFR File, Tab 6 . 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 agreeme nt is lawful on its face and freely entered into, id., 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. 5 C.F.R. § 1201.113 (c).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
3
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 r ights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and careful ly follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide whic h one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellan t seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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
5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, cos ts, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decis ion.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 prohi bited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circu it or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B) .
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington , D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono f or information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a give n case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PETERSEN_MARTIN_F_DE_0714_18_0420_I_1_FINAL_ORDER_2035597.pdf | 2023-05-26 | null | DE-0714 | NP |
3,088 | https://www.mspb.gov/decisions/nonprecedential/COHEN_JEFFREY_MARTIN_CH_3443_17_0280_I_1_FINAL_ORDER_2035089.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY MARTIN COHEN ,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-3443 -17-0280 -I-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey Martin Cohen , Fort Leonard Wood, Missouri, pro se.
Gary P. Chura , Fort Leonard Wood, Missouri, 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 appeal for lack of jurisdiction . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 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 wh en the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petit ioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On March 23, 2017, the appellant filed a Board appeal challenging his
September 18, 2016 reassignment from the position of Counseling Psychologist,
GS-0180 -11 (Step 6), to the term position of Army Substance Abuse Specialist,
GS-0101 -11 (Step 6). Initial Appeal File (IAF), Tab 1 at 3, 5, 7. The agency
reassigned the appellant because it discovered that he was unqualified for the
position in which he served, as his master ’s degree was not in the required field.
IAF, Tab 6 at 4, 8.
¶3 When it appeared that the Board may lack jurisdiction over the appeal, the
administrative judge issued an order advising the appellant of his burden of proof
on jurisdictio n and ordering him to file evidence and argument that his appeal
was properly before the Board. IAF, Tab 2 at 2 -4. Thereafter, the administrative
judge issued an order on t imeliness , which ordered the appellant to show that his
appeal was timely filed or that good cause existed for the 161 -day delay. IAF,
Tab 3 at 2. The appellant responded to the jurisdiction and timeliness orders.
IAF, Tab 4 at 4 -5, 7. In particular, he challenged the merits of the reassignment
and raised a claim that he was reassig ned in retaliation for prior equal
employment opportunity (EEO) activity. Id. at 7. He also claimed that good
3
cause existed for his untimely filing. Id. at 4-5. Without holding the requested
hearing, the administrative judge issued an initial decision dismissing the
appellant’s appeal, finding that he failed to make a nonfrivolous allegation over
which the Board has jurisdiction. IAF, Tab 8, Initial Decision ( ID) at 1-2. She
did not address the timeliness of the appeal given her finding on jurisdictio n. ID
at 3-4. The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The Board’s jurisdiction is limited to actions made appealable to it by law,
rule, or regulation . 5 U.S.C. § 7701 (a); Maddox v. Merit Systems Protection
Board , 759 F.2d 9 , 10 (Fed. Cir. 1985) . It is well settled that the Board does not
have jurisdiction over a reassignment of an employee to a position without a
reduction in grade or pay. See Maddox , 759 F.2d at 1 0. The Board does not have
jurisdiction over all actions alleged to be unf air or incorrect . Miller v.
Department of Homeland Security , 111 M.S.P.R. 325 , 332 -33 (2009), aff’d ,
361 F. App’x 134 (Fed. Cir. 2010). Additionally, a n appellant must prove by
preponderant evidence that an appeal is within the Board’s jurisdiction.2 5 C.F.R.
§ 1201.56 (b)(2)(i)(A). An appellant is entitled to a hearing only after raising
nonfrivolous allegations of Board jurisdiction.3 Hardy v. Merit Systems
Protection Board , 13 F.3d 157 1, 1575 (Fed. Cir. 1994 ).
¶5 Here , the administrative judge properly found that the appellant failed to
raise a nonfrivolous allegation over which the Board has jurisdiction. ID at 1, 3.
Specifically, the appellant did not allege that his reassignment resulted in a
2 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more like ly to be true than untrue. 5 C.F.R. § 1201.4 (q).
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. An allegation generally will b e conside red nonfrivolous when an individual
makes an allegation that (1) is more than conclusory , (2) is plausible on its face , and
(3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4 (s).
4
reduction in grade or pay or any other facts that would bring the appeal within the
Board’s jurisdiction. PFR File, Tab 4 .
¶6 Therefore, we agree with the administrative judge’s finding that the
appellant failed to raise a nonfrivolous allegation of jurisdiction and that,
therefore, he is not entitled to a hearing . Also, a bsent an otherwise appealable
action, the Board lacks jurisdiction over his claim of EEO retaliation. See
Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980 ), aff’d , 681 F.2d 867
(D.C. Cir. 1982) . Accordingly, we affirm the initial decision .
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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum 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 matt er.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
6
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 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 discriminati on claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7 , 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Additional information about the U.S. Court 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
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.
Contact information for the courts of appeals can be 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 | COHEN_JEFFREY_MARTIN_CH_3443_17_0280_I_1_FINAL_ORDER_2035089.pdf | 2023-05-25 | null | CH-3443 | NP |
3,089 | https://www.mspb.gov/decisions/nonprecedential/LUCERO_ERVIN_M_DE_0752_17_0438_I_1_FINAL_ORDER_2035113.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERVIN M. LUCERO,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DE-0752 -17-0438 -I-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ervin M. Lucero , Albuquerque, New Mexico, pro se.
Kardesha N. Bradley , 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 his termination appeal for lack of jurisdiction. On pet ition for review,
the appellant first addresses the merits of his case, arguing th at he was wrongfully
terminated due to the agency’s misapplication of its policies and procedures.
Petition for Review File, Tab 1 at 4. He additionally argues that 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
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
erroneously instructed him that he could file an appeal with the Board on two
separate occasions. Id. Final ly, he claims that the Board has jurisdiction over
appeals at its discretion and that he relies upon it to hear his appeal “as other
expeditious avenues of recourse are not available. ” Id. Generally, we grant
petitions such as this one only in the follow ing 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 administrativ e 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 lega l argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the 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 de cision, which is now the Boar d’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 The appellant’s assertion that the Board has “jurisdiction over any and all
appeals at [its] discretion” is i ncorrect; rather, the Board’s jurisdiction is limited
to those matters over which it has been given jurisdiction by law, rule, or
regulation. LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453 , ¶ 7
(2016). Additionally, the agency’s error in notifying the appellant of a right to
appeal does not serve to confer jurisdiction on the Board. Morales v. Social
Security Administration , 108 M.S.P.R. 583 , ¶ 5 (2008). The remainder of the
appellant’s arguments pertains to the merits of his claim , which cannot be
addressed before resolving the th reshold issue of jurisdiction. Evans v.
Department of Veterans Affairs , 119 M.S.P.R. 257 , ¶ 5 (2013).
3
¶3 The appellant below alleged retaliation for activities protected by 5 U.S.C.
§ 2302 (b)(9)(A)( ii). Initial Appeal File , Tab 1 at 7, Tab 8 at 4 . To the extent the
appellant may be attempting to invoke the Board’s jurisdiction over an individu al
right of action (IRA) appeal, the Board has jurisdiction over such an appeal if the
appellant has first exhausted his administrative remedies before the Office of
Special Counsel (OSC) and makes nonfrivolous allegations that (1) he made a
protected disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity
under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail
to take a pe rsonnel action as defined by 5 U.S.C. § 2302 (a). Salerno v.
Department of Interior , 123 M.S.P.R. 230 , ¶ 5 (2016) . The Board’s jurisdiction
over IRA appeals does not extend to cl aims arising under subsection (A )(ii).
Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 7 (2013).
Moreover, to the extent the appellant’s allegation of retaliation based on prior
equal employment opportunity activity is changed by the amendment to 5 U.S.C.
§ 2302 (b)(9)(C) in the National D efense Authorization Act of 2018, this
amendment does not apply retroactively . Edwards v. Department of Labor ,
2022 MSPB 9, ¶¶ 30-33. Further, the appellant has not claimed that he sought
corrective action from OSC. As the administrative judge correctly noted, in the
absence of an o therwise appealable action , an allegation of retali ation under
section 2302(b)(9)(A )(ii) cannot independently confer Board jurisdiction.
Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through t he link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discri mination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calend ar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington , D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be 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 | LUCERO_ERVIN_M_DE_0752_17_0438_I_1_FINAL_ORDER_2035113.pdf | 2023-05-25 | null | DE-0752 | NP |
3,090 | https://www.mspb.gov/decisions/nonprecedential/NOLAN_DAVID_B_DC_1221_17_0681_W_1_FINAL_ORDER_2035141.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID B. NOLAN, SR .,
Appellant,
v.
DEPARTMENT OF ENERGY ,
Agency.
DOCKET NUMBER
DC-1221 -17-0681 -W-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David B. Nolan, Sr. , Centerville, Massac husetts, pro se.
Brighton Springer , 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 appeal for lack of jurisdiction on the
ground that his conclusory and vague allegations failed to amount to nonfrivolous
allegation s that he made a protected disclosure or engaged in protected activity
based on his claims that he exhausted before t he Office of Special Counsel (OSC)
1 A nonprecedential order is one that the Board has determined does not add
significa ntly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedentia l decision issued as an Opinion and 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 he provided assistance to Robert MacLean and other whistleblo wers, engaged
in poli tical advocacy for Donald Trump, and p ublished a book title d, Nixon’s
Pats y—Lee Harvey Oswald . 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 an d material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the 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 revi ew and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 For the first time on review, t he appellant submits new evidence and
argument in 10 separate pleadings . Petition for Review (PFR) File, Tabs 1 -10.
For example , he submits several political news articles and copies of his book.
PFR File, Tab 1 at 7 -11, Tab 2 at 3, Tab 5 at 14 -83, Tab 6 at 33 -105, Tab 7
at 34-35, Tab 10 at 6-18. He als o makes various arguments concerning the
circumstances surrounding the assassination of John F. Kennedy and appears to
raise numerous new allegat ions of whistleblower reprisal , including a claim that
in November 196 3, he disclosed acts of treason in connec tion with the
assassination of John F. Kennedy . PFR Fil e, Tabs 1 -10. The app ellant has not
explained why he failed to respond to the administrative judge’s jurisdictional
order below or why he could not have raised these arguments prior to the close of
the record below. Thus, he has n ot shown that his arguments are based on
evidence that was unavailable before the record cl osed despite his due diligence.
3
See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980);
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) ; 5 C.F.R.
§ 1201.115 (d) (stating that to constitute new evidence, the information contained
in the documents, not just the documents themselves must have been unavailable
despite the party’s d ue diligence) . Further , the appellant’s evidence and argument
is not material to the extent it fails to amount to nonfrivolous allegations that the
appellant made a protected disclosure or engaged in protected activity that was a
contributing factor in th e agency’s decision to take or fail to take a personnel
action regarding the claims that the administrative judge found that he exhausted
before OSC .2 See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980)
(stating that the Board generally will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision); see also 5 C.F.R. § 1201.115 (d).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we o ffer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will ru le regarding which cases fall within their
jurisdiction. 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 We have reviewed the rel evant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
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
filing time limits and requirements. Failure to file with in the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about wh ether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20 439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informa tion regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlaw ful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), with in 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed la wyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through t he link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discri mination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washingt on, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chall enge 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 ei ther with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of 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.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gu ide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants 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 | NOLAN_DAVID_B_DC_1221_17_0681_W_1_FINAL_ORDER_2035141.pdf | 2023-05-25 | null | DC-1221 | NP |
3,091 | https://www.mspb.gov/decisions/nonprecedential/SCOTT_JAMES_C_DA_0845_16_0534_I_1_FINAL_ORDER_2035151.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES C. SCOTT, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-0845 -16-0534 -I-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James C. Scott, Jr. , San Antonio, Texas, pro se.
Carla Robinson , 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
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) , finding that OPM correctly determined the existence and amount of the
overpayment and that the appellant failed to establish his entitlement to 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. In his petition, the appellant argues that he is
entitled to waiver of collection of the overpayment because he was unable to
inform OPM that he was receiving Social Security disability payments because
from 2007 to 2013 he was severe ly ill.2 He also reiterates his contention made
below that “his rights were discriminated ” due to his disability. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of mat erial 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 dec ision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner ’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the 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 the appellant at fault in receipt of the overpayment,
we AFFI RM the initial decision.
¶2 In her initial decision, t he administrative judge found the appellant was not
entitled to waiver of recovery of the overpayment because he had received letters
from OPM that clearly explained his obligation to set aside the Socia l Security
disability checks that he received so that he would be able to repay the
overpayment that would be created during the period that he received both
Federal Employees’ Retirement System and Social Security disability benefit
payments. Initial App eal File (IAF) , Tab 16, Initial Decision (ID) at 11 ; IAF,
2 The appellant does not assert , and we do not find, any error in the administrative
judge’s finding that OPM correctly determined the existence and amount of the annuity
overpayment.
3
Tab 12 at 33, 60, 83. She did not credit the appellant’s testimony that he had no
knowledge about setting aside funds and that OPM never notified him that he was
responsible for any o verpayment. ID at 10 -11. Nor did she credit the appellant’s
testimony that he was incapacitated in 2007 when he retired and thus was unable
to handle his affairs with OPM , given that the record shows that he filed an
application for Social Security benefits in late 2 006. Id. The Board will defer to
the credibility findings of the administrative judge and will not grant a petition
for review based on a mere disagreement with those findings. Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997).
¶3 Although the administrative judge concluded that the appellant knew that
the receipt of Social Security disability benefits would trigger an ov erpayment,
she found that he was without fault in the overpayment, crediting his testimony
that he began receiving Social Security disability benefits in 2010 and notified
OPM in 2010 via telephone of the same. ID at 5, 10 -11; Hearing Record (HR)
(testimo ny of the appellant). However , on review, the appellant states that he
started receiving Social Security disability benefits in November 2007. Petition
for Review File, Tab 1 at 2. His assertion is supported by the documentation in
the record, which inc ludes a payment history listing November 2007 , as the first
payment for Social Security disability benefits. IAF, Tab 12 at 18-19.
¶4 OPM’s “Policy Guidelines on the Disposition of Overpayments under the
Civil Service Retirement System and Federal Employees’ Retirement System”
(Guidelines) provide that an individual is not without fault if he accepted a
payment that he “should have known to be erroneous.” IAF, Tab 12 at 113.
However, OPM ’s Guidelines also provide an exception to this rule, i.e. , the
Prompt Notification Exception, which states that an individual “will
automatically be found without fault, regardless of whether they knew or should
have known that the payment was erroneous, if they promptly contact OPM and
question the correctness of the overpayment.” Id. at 114. Prompt notification is
defined as within 60 days of receipt of the overpayment. Id. As set forth above,
4
the administrative judge found that the appellant knew that the Social Security
disability benefits would trigger an overpayment. ID at 10 -11. Because we
discern no basis for disturbing that finding and the appellant did not promptly
contact OPM within 60 da ys of his receipt of such benefits, he is considered at
fault under OPM’s guidance. IAF, Tab 12 at 33, 60, 113 -14; HR (testimony of
the appellant). However, because the administrative judge affirmed OPM’s
decision finding that the appellant was not entit led to a waiver of the
overpayment, the finding of fault has no impact on the outcome of this case.
¶5 Although the administrative judge properly found that the appellant
provided no evidence to support his disability discrimination claim, ID at 2 n.2, it
appears from the appellant ’s assertions on review that he may not be alleging
disability discrimination but rather asserting that recovery of the overpayment
would be unconscionable given his work -related disability. The appellant’s claim
is without merit be cause, as the administrative judge correctly found, the
appellant failed to show that recovery of the overpayment was unconscionable.
¶6 Accordingly, we affirm the initial decision.3
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
3 OPM has advis ed 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 othe r) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accorda nce 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).
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 indica ted in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situati on and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rul e, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
6
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.
(2) Judicial or EEOC review of cases 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 decision before you 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 information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this 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 pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohi bited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circu it or any court of appeals of
8
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SCOTT_JAMES_C_DA_0845_16_0534_I_1_FINAL_ORDER_2035151.pdf | 2023-05-25 | null | DA-0845 | NP |
3,092 | https://www.mspb.gov/decisions/nonprecedential/DUNCAN_JACQUITTA_DA_0752_16_0358_I_1_FINAL_ORDER_2035206.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACQUITTA DUNCAN,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DA-0752 -16-0358 -I-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacquitta Duncan , Fort Worth, Texas, pro se.
Mary Kate Bird , El Segundo, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dism issed her appeal for lack of jurisdiction, finding that the appellant did not
establish that her resignation was involuntary. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous find ings 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 dilig ence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the analysis on the appellant’s allegation t hat the
agency failed to accommodate her by denying her request to telework , we
AFFIRM the initial decision.
BACKGROUND
¶2 From September 20, 1992, until her resignation on January 13, 2015, the
appellant was employed as a Mechanical Engineer with the Federal Aviation
Administration. Initial Appeal File (IAF), Tab 8 at 98, 235; Hearing Recording
(HR) (testimony of the appellant). In January 2014, a year prior to her
resignation, the appellant was diagnosed with depression, anxiety, chronic stress,
and was in a “severe emotional state.” IAF, Tab 17 at 60, 64; HR (testimony of
the appellant). In March 2014, the appellant requested leave under the Family
and Medical Leave Act (FMLA). IAF, Tab 17 at 58-62. In her FMLA request ,
3
the appellant’s doctor stated that she could not perform any work during a flare
up of her condition, which would occur approximately one to three times a month
and that each flare up would last 1 to 4 days. Id. at 61. In June 2014, the
appellant submitted an updated FMLA request which stated that she would be
entirely incapacitated from May 30 through July 31, 2014. Id. at 63-66. Then, on
July 30, 2014, the appellant submitted letters from two different doctors
confirming that she was unable to return to work at the time. IAF, Tab 19
at 20-21. Additionally, one of the appellant’s doctors recommended that the
agency provide her with a reasonable accommodation when she could return to
work, specifically, that she be transferred to a different department under a
different supervisor an d be given full -time telework. Id. at 20. Even though the
appellant had already used her 12 weeks of FMLA protected leave, the agency
granted the appellant leave without pay (LWOP) from August 1 until
September 15, 2014, at which time she returned to the office.3 Id. at 22, 26; HR
(testimony of the appellant).
¶3 On October 6, 2014, the appellant’s second -line supervisor denied her
request for reasonable accommodation, explaining that the agency had no
obligation to provide her with an accommodation becau se her medical evidence
indicated she could perform the essential functions of her position under a
different supervisor. IAF, Tab 19 at 28-29. The agency also reviewed the
appellant’s request for full -time telework under its policy and the applicable
collective bargaining agreement, and denied the request. Id. at 31; HR (testimony
of first -line supervisor). It explained that most telework agreements in the office
were for 1 or 2 days a week because too much time away from the office resulted
in an unacceptable impact to the organization and to group/team inter action and
performance. IAF, Tab 19 at 31. The agency also noted that the nature of an
engineer’s work did not lend itself to teleworking more than 2 days a week. Id.
3 The agency apparently also approved the appellant’s participation in the voluntary
leave transfer program. IAF, Tab 19 at 26.
4
Finally, the agency explained that the appellant was in the process of re -engaging
with the office after an extended period of leave, that closer communication with
her supervisor was needed to ensure that she timely completed her assignments,
and that the appellant’s attendance since her return had been inconsistent. Id.
Accordingly, th e agency denied the request for full -time telework. Id.
¶4 On or around December 16, 2014, the appellant provided her second -line
supervisor with a letter from her doctor, which stated that the agency’s denial of
accommodations caused the appellant’s furthe r mental deterioration and
emotional distress, leaving the appellant “with no other option but to remove
herself from the stressor” and “resign from her employment as soon as possible.”
Id. at 32-33, 36. Several days later, on December 22, 2014, the appe llant
presented a letter to her second -line supervisor, stating: “[I]f I do not receive
reasonable accommodations immediately for my serious medical condition
(depression and anxiety) please accept this letter as my resignation effective
January 13, 2015.”4 Id. at 36. She explained that she needed her primary
accommodation of reassignment to a different supervisor, or alternatively,
full-time telework. Id. In response, the second -line supervisor explained that the
appellant presented no additional or ne w information that would support a change
in the agency’s decision to deny her reasonable accommodation request. Id.
at 37. Accordingly, the agency processed the appellant’s resignation effective
January 13, 2015. IAF, Tab 8 at 98.
¶5 The appellant filed a timely appeal of her resignation to the Board, alleging
that it was involuntary due to the agency’s failure to accommodate her disability
4 The appellant’s original letter provided January 13, 2014, as the resignation date.
IAF, Tab 8 at 102. The agency’s admini strative officer returned the letter, and the
appellant corrected the date to January 13, 2015, before the effective date of her
resignation. IAF, Tab 19 at 36; HR (testimony of the appellant, testimony of the
administrative officer).
5
and subjecting her to discrimination and retaliation.5 IAF, Tab 1 at 6. The
administrative judge found that the a ppellant made a nonfrivolous allegation of
involuntariness, and granted her a jurisdictional hearing. IAF, Tab 13 at 1-2.
¶6 After holding a hearing, the administrative judge found that the appellant’s
December 22, 2014 letter constituted her resignation a nd dismissed the appeal for
lack of jurisdiction, finding that the appellant failed to establish that her
resignation was involuntary. IAF, Tab 28, Initial Decision (ID). The appellant
filed a timely petition for review. Petition for Review (PFR) File, Tab 1. The
agency responded to the appellant’s petition, and the appellant replied to the
agency’s submission. PFR File, Tabs 3-4.
ANALYSIS
The appellant’s December 22, 2014 letter was appropriately interpreted as a
resignation letter.
¶7 Before the admi nistrative judge, the appellant argued that the December 22,
2014 letter was not, in fact, a resignation letter, but that it was “merely an attempt
to be accommodated.” IAF, Tab 10 at 7. In the initial decision, the
administrative judge determined that t he letter expressed the appellant’s “definite
and unequivocal intent to resign” if her accommodations were denied. ID at 18.
As the agency did not give the appellant her requested accommodations, the
administrative judge found that the agency was entitle d to rely on the letter to
effect her resignation. Id. On review, the appellant reiterates her argument,
claiming that her letter was not an “affirmative resignation” but was submitted
with the intent to “seek help.” PFR File, Tab 1 at 12.
¶8 We disagree with the appellant’s contention that her December 22, 2014
letter was not a resignation letter. An employee is free to resign at any time, to
5 The appellant fi led a formal equal employment opportunity complaint on April 11,
2015, alleging that she was forced to resign. IAF, Tab 1 at 20. The agency accepted
the complaint for processing and issued a final agency decision on April 6, 2016. IAF,
Tab 7 at 8. The appellant timely filed her Board appeal within 30 days of her receipt of
the final agency decision. 5 C.F.R. § 1201.154 (b)(1); IAF, Tab 7 at 4-5, 10.
6
set the effective date of her resignation, and to have her reasons for resigning
entered into her official recor ds. Balagot v. Department of Defense ,
102 M.S.P.R. 96, ¶ 7 (2006); 5 C.F.R. § 715.202 (a). An agency is entitled to rely
on an employee’s expression of a present intent to resign only when that
expression is unequivocal. Balagot , 102 M.S.P.R. 96 , ¶ 7. In determining
whether an employee has effectively resigned, the Board considers the totality of
the circumstances. Id.
¶9 The Board has held that a conditional resignation may add uncertainty as to
whether the statement expresses a present or future intent to resign. Hammond v.
Department of the Navy , 50 M.S.P.R. 174, 181 (1991). However, we do not find
that the appellant’s language in the December 22, 2014 letter was uncertain. The
appellant plainly conveyed an ultimatum to the agency: grant her requested
accommodations or she would resign effective January 13, 2015. IAF, Tab 19
at 36. The inclusion of the effective date of the resignation is further evidence
that the appellant intended to resign should her demands not be met. See
McDermott v. Department of Justice , 82 M.S.P.R. 19, ¶ 10 (1999) (finding that
the appellant’s letter indicated a definite and unequivocal intent to res ign, in part,
because it included an effective date for her resignation); cf. Hammond ,
50 M.S.P.R. at 181 (finding that uncertainty as to the effective date of a
conditional resignation may exist if an employee does not specify that the
effective date for the resignation will be the date upon which the condition is
fulfilled or some other date).
¶10 Additionally, the events leading up to the appellant’s resignation confirm
that she intended to resign on January 13, 2015, if she did not receive her
requested a ccommodations. As noted, because the appellant initially wrote the
wrong year for the effective date of her resignation, the administrative officer
returned the letter to her to correct the effective date of her resignation to
January 13, 2015, which she did without objection. HR (testimony of the
administrative officer, testimony of the appellant); IAF, Tab 19 at 36. Next, the
7
updated medical documentation provided by the appellant stated that her only
option was to resign after her accommodations were not granted. IAF, Tab 19
at 33. Furthermore, the appellant’s first -line supervisor discussed the appellant’s
pending resignation with her and her union representative the day prior to the
effective date of her resignation, and there is no evidence in the record that the
appellant attempted to withdraw her resignation during this meeting.6
HR (testimony of the appellant, testimony of the first -line supervisor).
¶11 Finally, the appellant’s claim that her resignation was not an “affirmative
resignation” beca use she never met with Human Resources is unpersuasive. PFR
File, Tab 1 at 12. The appellant has not identified any support for the proposition
that a specific process, such as meeting with an employee of a particular office, is
a prerequisite for a resi gnation to be effective. To the contrary, as noted, an
employee may resign at any time. Balagot , 102 M.S.P.R. 96 , ¶ 7; 5 C.F.R.
§ 715.202 (a). A specific or formalized process is not necessary, as illustrated by
the Board’s holding in Robinson v. U.S. Postal Service , 50 M.S.P.R. 433, 438 -39
(1991), that an oral statement to the employee’s supervisors was sufficient to
constitute a resignation.7 In an y event, the record shows that, contrary to the
appellant’s assertions, she did meet with the agency’s administrative officer on
6 The appellant’s first -line supe rvisor held a meeting with the appellant and her union
representative on January 12, 2015. HR ( testimony of the appellant, testimony of the
first-line supervisor). In that meeting, the first -line supervisor asked the appellant if
she still intended to resign. HR (testimony of the appellant, testimony of the first -line
supervisor). According to the first -line supervisor, the appellant confirmed that she
intended t o resign; however, the appellant claims her representative responded that, if
the appellant did not receive her accommodations, she would be forced to resign.
HR (testimony of the appellant, testimony of the first -line supervisor). In any event,
both wit nesses testified that resignation was discussed the day prior to the appellant’s
resignation. HR (testimony of the appellant, testimony of the first -line supervisor).
7 Similarly, the Board explained in Sanderson v. Office of Personnel Management ,
72 M.S.P.R. 311 , 316 (1996), aff’d , 129 F.3d 134 (Fed. Cir. 1997) (Table), that a
written resignation is not necessary when an employe e’s words and actions express a
clear intent to resign, further confirming that the Board has not required any formalized
process for an agency to accept and process an employee’s resignation.
8
the day of her resignation, and there is no evidence in the record that suggests the
appellant, during this meeting, or at any other time, expressed a desire to
withdraw her resignation.8 HR (testimony of the administrative officer, testimony
of the appellant, testimony of the union representative).
¶12 In sum, we agree with the administrative judge that the agency acted
properly i n construing the appellant’s December 22, 2014 letter as a resignation
letter and properly relied on the letter in effectuating the appellant’s resignation
on January 13, 2015.
The appellant failed to establish that her resignation was involuntary.
¶13 An e mployee -initiated action, such as resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction, unless the employee presents
sufficient evidence to establish that the action was obtained through duress or
coercion or shows that a rea sonable person would have been misled by the
agency. Searcy v. Department of Commerce , 114 M.S.P.R. 281, ¶ 12 (2010); see
Staats v. U.S. Postal Service , 99 F.3d 1120 , 1123 -24 (Fed. Cir. 1996) (stating that
a decision to resign or retire is presumed to be voluntary and thus out side of the
Board’s jurisdiction) . The touchstone of the voluntariness analysis is whether,
considering the totality of the circumstances, factors operated on the employee’s
decision -making process that deprived her of freedom of choice. Searcy ,
114 M.S.P.R. 281, ¶ 12. Our reviewing court has made clear that “the doctrine of
coercive involuntariness is a narrow one.”9 Staats , 99 F.3d at 1124 . The fact that
8 During the January 13, 2015 meeting, the administrative off icer claims that she asked
the appellant whether she wanted to resign and the appellant confirmed that she did.
HR (testimony of administrative officer). In their testimony, the appellant and her
union representative confirmed that they met with the admi nistrative officer on
January 13, 2015, but only recall discussing her leave balances. HR (testimony of the
administrative officer, testimony of the appellant, testimony of the
union representative).
9 Although the employee in Staats claimed that his re tirement from the U.S. Postal
Service was involuntary, the court makes clear that its discussion regarding the
9
an employee is faced with an unpleasant situation or that her choice is limited to
two unattractive options does not make the employee’s decision any less
voluntary. Id. However, intolerable working conditions may render an acti on
involuntary if the employee demonstrates that the employer or agency engaged in
a course of action that made working conditions so difficult or unpleasant that a
reasonable person in the employee’s position would have felt compelled to resign.
Searcy , 114 M.S.P.R. 281 , ¶ 12.
¶14 When, as in this case, an appellant claims that the agency coerced her
resignation by engaging in acts of discrimination, including harassment and
failing to reasonably accommodate her disability, and retaliated against her for
protected activity, PFR File , Tab 1 at 8-12; HR (testimony of the appellant); IAF,
Tab 1 at 6, the Board will consider those claims only insofar as those allegations
relate to the issue of voluntariness and not whether they would establish
discrimination or reprisal as an affirmative defense. Brown v. U.S. Postal
Service , 115 M.S.P.R. 609 , ¶ 10, aff’d , 469 F. App’x 852 (2011). That is,
evidence of discriminat ion may be considered only in terms of the standard for
voluntariness in a particular situation —not whether such evidence meets the test
for proof of discrimination or reprisal established under Title VII. Markon v.
Department of State , 71 M.S.P.R. 574 , 578 (1996 ). Thus, evidence of
discrimination goes to the ultimate question of coercion —whether under all of the
circumstances wor king conditions were made so difficult by the agency that a
reasonable person in the employee’s position would have felt compelled to resign.
Id. at 577.
purported involuntariness of the retirement at issue in that case applies to allegations of
an involuntary resignation as well. Staats , 99 F.3d at 1122 -24.
10
The appellant failed to show that the denial of her reasonable
accommodation request of assignment to a new supervisor created
working conditions so intolerable that a reasonable person would
have felt compelled to resign.
¶15 The appellant asserts that the agency created intolerable working conditions
and thus coerced her resignation by denying her reasonable accommodation
requests “to telework . . . and/or be reassigned” to a different supervisor. IAF,
Tab 19 at 36. However, an agency is not obligated to reassi gn an employee to a
different supervisor as a reasonable accommodation.10 See Alden v. Department
of Veterans Affairs , EEOC Appeal No. 012008 0620, 2011 WL 2515256, *5
(June 16, 2011) (stating that an employer does not have to provide an employee
with a new supervisor as a reasonable accommodation).11 Additionally, while the
appellant may have found it difficult working with her assigned supervisor, an
employee is not guaranteed a stress -free working environment. Miller v.
Department of Defense , 85 M.S.P.R. 310 , ¶ 32 (2000) . Dissatisfaction with work
assignments, a feeling of being unfairly criticized, or difficult or unpleasant
10 We acknowledge that the issue of reassignment to a new supervisor as a reasonable
accommodation is not presented in this case as an affirmative defense to an adverse
action, but rather in support of the appellant’s claim of an involuntary r esignation based
on intolerable working conditions. Nonetheless, it bears noting that the Board generally
defers to the Equal Employment Opportunity Commission (EEOC) on issues of
substantive discrimination law, unless EEOC’s decision rests on civil servi ce law for its
support or is so unreasonable that it amounts to a violation of civil service law.
Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 40. This case does not
involve either exception.
11 While assignment to a different supervisor is not required, reassignment to a vacant
position is an accommodation specifically listed in the Americans with Disabilities A ct.
Before considering reassignment as a reasonable accommodation, employers should
first consider those accommodations that would enable an employee to remain in his/her
current position. Reassignment is the reasonable accommodation of last resort and i s
required only after it has been determined that: (1) there are no effective
accommodations that will enable the employee to perform the essential functions of
his/her current position, or (2) all other reasonable accommodations would impose an
undue hardship. See EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act ( Oct. 17, 2002) (citing 29
C.F.R. pt. 1630 app. § 1630.2(o) (1997); S. Rep. No. 101 -116, at 31 (1989); H .R. Rep.
No. 101 -485, pt. 2, at 63 (1990) ).
11
workin g conditions are generally not so intolerable as to compel a reasonable
person to resign. Id.
¶16 Moreover, the appellant’s decision to resign was not a rash one.
She submitted her resignation letter on December 22, 2014, with the effective
date of January 13, 2015. IAF, Tab 19 at 36. Thus, she had 22 days to reconsider
and withdraw her resignation, but she did not do so. This opportunity to reflect
on her resignation cuts against a finding of involuntariness. See Lamb v. U.S.
Postal Service , 46 M.S.P.R. 470 , 476 -77 (1990) (finding that a resignation
was not coerced when, in part, the appellant had ample opportunity to reflect on
the consequences of his resignation and to make a decision).
We modify the initial decision to find that, even if the agency failed
to accommodate the appellant when it denied her request for
full-time telework, the appellant ultimately failed to show that the
agency created working conditions so intolerable that a reasonable
person would have felt compelled to resign.
¶17 The appellant also argues that the denial of her accommodation request for
full-time telework created intolerable working conditions that would have
compelled a reasonable person to resign. IAF, Tab 19 at 36; PFR File, Tab 1
at 7-8. We are not persuaded by the appellant’s argument. A resignation may be
an involuntary action within the Board ’s jurisdiction if an agency improperly
denied an employee ’s request for a reasonable accommodation of a medical
condition. See, e.g. , Hosozawa v. Department of Vete rans Affairs , 113 M.S.P.R.
110, ¶ 7 (2010). However, an agency ’s failure to accommodate an eligible
employee is simply a factor to be considered in assessing whether a resignation
was involuntary. Brown v. U.S. Postal Service , 115 M.S.P.R. 609 , ¶ 16, aff’d,
469 F. App ’x 852 (Fed. Cir. 2011) . The Board examines the totality of the
circumstances by an objective standard to determine voluntariness and does not
rely on the employee ’s purely subjective evaluation. Coufal v. Department of
Justice , 98 M.S.P.R. 31 , ¶ 22 (2004).
12
¶18 As an initial matter, we find that the agency’s explanation for denying the
appellant a reasonable accommodat ion in denying her request for full -time
telework to be unpersuasive. As a Mechanical Engineer, the appellant was
responsible for providing support to mechanical systems in various agency
facilities. HR (testimony of the appellant). Specifically, the ap pellant created
blueprint designs to upgrade or replace mechanical systems that would be bid on
by contractors, and then she assisted in overseeing the completion of these
projects. Id. The appellant was part of a team of engineers, which included
engine ers in other fields, such as structural and electrical engineers. Id. The
agency denied her request for telework by explaining that full -time telework was
not conducive to the position of Mechanical Engineer because “the lack of
face-to-face conversation can diminish the group/team interaction and
organizational performance” and that “many of [the] job tasks are not easily
quantifiable and contact with other employees and customers is not predictable.”
IAF, Tab 19 at 31. As set forth above, the agency a lso explained that most
telework agreements in the office were for 1 or 2 days a week because too much
time away from the office resulted in an unacceptable impact to the organization
and to group/team interaction and performance. Id.
¶19 The Equal Employment Opportunity Commission (EEOC) has found
telework to be a well -established reasonable accommodation. U.S. Equal
Employment Opportunity Commission, Work at Home/Telework as a Reasonable
Accommodation , ¶ 4 , http://www.eeoc.gov/facts/telework.html .12 Moreove r, an
12 Although EEOC ’s guidance does not have the force of law and therefore does not
warrant deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U .S. 837 (1984) , it is nonetheless “entitled to respect” under Skidmore v. Swift
and Co., 323 U.S. 134 (1944), to the extent that its interpretati on of the statute it
administers has the “power to persuade.” See Christensen v. Harris County , 529 U.S.
576, 587 (2000) (quoting Skidmore , 323 U.S. 134 ). We find EEOC ’s interpretation of
the Americans with Disabilities Act persuasive and therefore entitled to Skidmore
deference. See Solamon v. Department of Commerce , 119 M.S.P.R. 1 , ¶ 9 (2012)
(granting Skidmore deference to OPM advisory opinion).
13
agency is not permitted to rely upon its own policies for telework in denying an
accommodation. The agency has not shown that the appellant would have been
unable to perform the essential duties of her position at home. The EEOC’s
guidance states t hat “[a]n employer should not . . . deny a request to work at
home as a reasonable accommodation solely because a job involves some contact
and coordination with other employees.” Id.
¶20 Notwithstanding the agency’s unpersuasive analysis in this regard, the
appellant has not shown that this rendered her working conditions so intolerable
that a reasonable person in her position would have felt compelled to resign.13
See Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501 , ¶ 26 (2007)
(finding that, although an agency official may have caused the appellant
apprehension and exacerbation of his medical ailments, the appellant failed to
establish that his working conditions were so intolerable that a reasonable person
in his position would have felt compelled to retire).
The appellant failed to show that other agency actions created
working conditions so intolerable that a reasonable person would
have been compelled to resign.
¶21 The administrative judge correctly found that, although the appellant
subjectively believed tha t the agency’s actions were hostile, harassing,
discriminatory, and retaliatory, there was no objective evidence that the agency’s
actions rendered the appellant’s working conditions so intolerable that a
reasonable person in her position would have felt c ompelled to resign. ID
at 19-22. The appellant complained of various issues that occurred over
approximately a 2 -year period, including being placed on leave restriction, being
charged absence without leave (AWOL), having her request for LWOP denied,
being threatened with disciplinary action, being improperly investigated, and
13 The appellant argues on review that the agency improperly questioned her medical
evidence. PFR File, Tab 1 at 7 -8. As the suf ficiency of the appellant’s medical
evidence does not impact our findings, we see no need to address whether the agency
improperly questioned the evidence.
14
having her first -line supervisor address her in a rude , inconsiderate and
condescending manner , all of which she claimed constituted harassment .14
HR (testimony of the appellant) ; IAF, Tab 19 at 7-15, 30, 34 -35, 38.
¶22 However, as previously stated, a n employee is not guaranteed a stress -free
working environment , and being unfairly criticized, or unpleasant working
conditions are generally not considered to be so intolerable that they would
compel a reasonable person to resign. Miller , 85 M.S.P.R. 310 , ¶ 32. Thus, we
agree with the administrative judge that, whi le the conditions the appellant
describes were no doubt unpleasant for her, they do not reach the high threshold
for finding her working conditions intolerable. ID at 21-22.
¶23 Further , as correctly noted by the administrative judge , the appellant had
several options available to her to fight the contested agency actions, including
filing an equal employment opportunity ( EEO ) complaint or a grievance. ID
at 20; see Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 17
(2009) . The appellant was well aware of these options, as she had filed several
EEO complaints. IAF, Tab 8 at 65, 71. To the extent that the appellant argues
that she was forced to resign because her numerous other complaints had not
stopped the alleged mistreatm ent, this is an unpersuasive position as it does not
change the fact that the mechanisms for her to dispute agency actions still existed,
that the appellant was aware of these mechanisms, and that she knew how to use
these mechanisms. However, instead of choos ing one these options , the appellant
elected to resign.
¶24 Also, as previously explained, the appellant’s decision to resign was not
rash, as she had 22 days to reconsider and withdraw her resignation, but did not
do so . This further weighs against fi nding her decision was involuntary. See
Lamb , 46 M.S.P.R. at 476-77.
14 While the specific examples listed occurred over a 2 -year period, the appellant also
claims that her relationship with her first -line supervisor was “not witho ut complaint”
for the entire 13 -year working relationship. IAF, Tab 19 at 30.
15
¶25 Additionally, on review the appellant asserts that the administrative judge
should have applied the reasonable person standard considering her medical
conditions, i.e., would a reasonable person with the appellant’s medical
conditions have felt compelled to resign.15 PFR File, Tab 1 at 2-3. The appellant
does not cite any relevant legal authority supporting this interpretation of the
law.16 Id. Further, it is well esta blished that the reasonable person test must be
applied using an objective standard rather than by considering the employee’s
purely subjective evaluation. Coufal , 98 M.S.P.R. 31 , ¶ 22; see Lawley v.
Department of the Treasury , 84 M.S.P.R. 253 , ¶ 9 (199 9); see also Marko n,
71 M.S.P.R. at 578. Accordingly, consistent with Board precedent, we agree with
the administrative judge that the appellant not shown that her working conditions
were so intolerable that a reasonable person would be compelled to resig n. ID
at 21-22.
15 We base this interpretation of the appellant’s argument on her reference to criminal
and tort law, which both co ntain a doctrine that an individual takes his victim as he
finds them, also k nown as the eggshell skull doctrine. Figueroa -Torres v.
Toledo -Davila , 232 F.3d 270 , 275 -76 (1st Cir . 2000 ) (analyzing the different circuits’
application of the eggshell skull doctrine in tort law); Brackett v. Peters , 11 F.3d 78 , 81
(7th Cir. 1993 ) (finding that “in criminal law, as in tort law, the injurer takes his victim
as he finds him ”). However, to the extent the appellant argues that the administrative
judge did not recognize or acknowledge her medical con ditions, we find this to be an
incorrect characterization, as the administrative judge comprehensively addressed the
appellant’s medical conditions in the initial decision. ID at 3-16.
16 In support of her argument that the administrative judge erred by applying the
reasonable person standard, the appellant cites to Portner v. Department of Justic e,
119 M.S.P .R. 365 (2013), overruled on other grounds by Singh v. U.S. Postal Service ,
2022 MSPB 15 , which addressed an appellant’s medical co ndition as a mitigating factor
in assessing the penalty in an adverse action appeal. PFR File, Tab 1 at 2-3; Portner ,
119 M.S.P.R. 365 , ¶¶ 17, 22. The appellant has not explained how that case, dealing
with the consideration of an employee’s medical condition in determining the
reasonableness of the penalty for an act of misconduct, has any bearing on the issue of
the voluntariness of he r resignation.
16
The appellant failed to establish that her resignation was involuntary
based upon misinformation or deception by the agency .
¶26 A resignation is involuntary if, for example, the agency made misleading
statements upon which the employee reasonably relied to h er detriment.
Wallendorf v. Department of the Treasury , 102 M.S.P.R. 59 , ¶ 6 (2006 ). “A
decision made ‘with blinders on, ’ based on misinformation or a lack of
information, cannot be binding as a matter of fundamental fairness and due
process. ” Covington v. Departm ent of Health and Human Services , 750 F.2d 937 ,
943 (Fed. Cir. 1984). The agency need not have been aware that its statements
were misleading, b ut may instead have provided them negligently or innocently.
Id. at 942.
¶27 On review, the appellant claims that the agency provided her with
misinformation about whether it convened a reasonable accommodation team
(ReAcT) to review her reasonable accommod ation request.17 PFR File, Tab 1
at 3-7. Specifically, the appellant asserts that the agency misled her to believe
that it was reviewing her reasonable accommodation request in accordance with
its established procedures and, had she known it was not, she “would have made
different and more informed decisions . . . which would have impacted [the]
present conditions of this case.”18 Id. at 6. In support of her argument, the
appellant cites to allegedly contradictory testimony from agency witnesses made
17 A ReAcT consisted of representatives from the agency’s Civil Rights Office,
Regional Counsel, the Medical Department, and Labor Relations. HR (testimony of the
second -line supervisor).
18 The appellant did not raise the argument that he r resignation was based on
misinformation below. The Board generally will not consider an argument raised for
the first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party ’s due diligence. Clay v.
Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016). However, we have considered
the appellant ’s argume nts on review because it implicate s the Board ’s jurisdiction, an
issue that is always before the Board and may be raised by any party or sua sponte by
the Board at any time during a Board proceeding. Lovoy v. Department of Health and
Human Services , 94 M.S.P.R. 571 , ¶ 30 (2003).
17
during the processing of her appeal regarding whether a ReAcT was assembled
and who was involved. Id. at 4-7.
¶28 As an initial matter, the record is not clear as to whether the testimony from
the agency’s witnesses was in fact contradictory.19 Nevertheless, in order to show
that her resignation was involuntary as a result of misrepresentation, the appellant
has to show that she reasonably relied upon the agency’s misleading statements to
her detriment. Wallendorf , 102 M.S.P.R. 59 , ¶ 6. We do not find that the
appellant met this burden.
¶29 It appears that the agency provided two letters to the appellant specifically
regarding her reasonable accommodation request, and neither letter mentioned
that a ReAcT would be convened to review that request. IAF, Tab 19 at 17,
24-25. Furthermore, the agency’s denial of the appellant’s reasonable
accommoda tion request does not state that a ReAcT was involved in the
decision -making process. Id. at 28-29. Indeed, contrary to the appellant’s
assertion, the agency was under no obligation to convene a ReAcT, as the
agency’s reasonable accommodation policy prov ides that the first -line supervisor
is the decision maker for reasonable accommodation requests, and explains that
he or she “may” consult with the other resources, including human resources,
19 The appellant points to allegedly contradictory testimony by agency witnesses as to
whether a ReAcT was convened on ce, twice, or at all, to review her request for
accommodation. PFR File, Tab 1 at 4-7. On review, the appellant cites to numerous
depositions of witnesses to support a claim that these individuals made contradictory
statements; however, those deposition transcripts were not introduced into t he record
before the Board . Id. Accordingly, we are unable to assess the accuracy of the
appellant’s claims, and thus, the appellant has not established that the witnesses
testified in an inconsistent fashion . In reviewing the hearing testimony, we do not find
the agency’s statements to be inconsistent. The second -line supervisor testified that she
convened a ReAcT twice to review the appellant’s request for accommodation.
HR (testimony of the second -line supervisor). At least one individual confirmed that a
ReAcT had been convened, and no individual affirmatively denied that the ReAcT was
convened a second time. HR (testimony of EEO specialist, testimony of labor relations
specialist); IAF, Tab 25 at 17-18, 21 -22. Thus, we do not find the hearing testimony to
be inconsistent. PFR File, Tab 1 at 4-7.
18
legal, and medical personnel. IAF, Tab 8 at 209. In fact, the agency’s reasonable
accommodation policy has no provisions referencing a ReAcT. Id. at 206-17.
¶30 The only document in the record that references ReAcT is an October 15,
2014 email from the appellant’s second -line supervisor to the appellant regarding
the denial of her reasonable accommodation request, with the subject line
“REACT Outcome.” IAF, Tab 19 at 30. However, the record only contains the
appellant’s response and not the original email from the second -line supervisor.
Id. Furthermore, although t he email is titled REACT Outcome, there is nothing
in the email itself that indicates that the appellant believed a ReAcT team was
convened. Id. Indeed, in the email, the appellant places the blame solely on her
second -line supervisor for denying her rea sonable accommodation request. Id.
¶31 Finally, the appellant’s December 22, 2014 resignation letter listed the
agency’s denial of accommodations as the reason for her resignation, not the
process by which it came to that decision. Id. at 36. Therefore, by the
appellant’s own admission, she relied on the agency’s denial of her
accommodations in deciding to resign, not the process by which that decision was
made. Thus, we find that the record does not show that the agency provided the
appellant with misleading statements that she reasonably relied to her detriment.20
¶32 Having carefully considered the record evidence, as set forth above, we find
that the appellant resigned from her position effective January 13, 2015, and that
20 The appellant alleges on review that the agency “constructively suspended” her for
more than 14 days when it denied her LWOP request and placed h er in an AWOL status
from December 22, 2014, to January 8, 2015. PFR File, Tab 1 at 8-9. At no point
below did the appellant, who was represented by counsel, allege that she was
constructively suspended. Because the record on this issue was not develope d in this
appeal, we decline to address it. However, if the appellant believes that she was
constructively suspended, she may file a Board appeal of that matter consistent with the
Board’s regulations. See Masdea v. U.S. Postal Service , 90 M.S.P.R. 556 , 560 n.*
(2002) (noting that, while the appellant challenged an arbitration decision of the agency
removal action, the record reflec ted that there was also a suspension which may be
appealable to the Board, and directing the appellant to file a new appeal if he wished to
pursue an appeal of the suspension ).
19
the appella nt has not otherwise met her burden of showing that her resignation
was involuntary based on intolerable working conditions or misinformation
provided by the agency.
NOTICE OF APPEAL RIG HTS21
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. 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
21 Since the issuance of the initial decision in this matter, the Board may ha ve updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
20
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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
21
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, 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
22
(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 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 Cir cuit or any court
of appeals of competent jurisdiction.22 The court of appeals must 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.
Washingt on, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
22 The original statutory provision that provided for judicial review of certain
whist leblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decis ions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
23
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | DUNCAN_JACQUITTA_DA_0752_16_0358_I_1_FINAL_ORDER_2035206.pdf | 2023-05-25 | null | DA-0752 | NP |
3,093 | https://www.mspb.gov/decisions/nonprecedential/SPANN_REGINA_L_CH_0752_17_0106_I_1_FINAL_ORDER_2035210.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
REGINA L. SPANN,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
CH-0752 -17-0106 -I-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen T. Fieweger , Esquire, Davenport, Iowa, for the appellant.
Gretchen M. McMullen , Washington, D.C., for the agency.
Kevin L. Owen , Esquire, Silver Spring, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Ch airman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal . On petition for review, the appellant argues that the
administrative judge erred by failing to consider evidence showing that she has a
Bachelor’s degree in accounting and by placing the burden on her to find
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and ad ministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
openings for which she was qualified instead of requiring the agency to prove
there were no accounting positions available that she could perform . The
appellant also argues that the agency was r equired to perform an “interagency”
search for available accounting positions within each of the separate commands
the Department of the Army had at the Rock Island Arsenal . Generally, we grant
petitions such as this one only in the following circumstance s: 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 ruling s 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 av ailable
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). Afte r fully considering the 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 below to correct the analysis of the appellant’s 76 0 hours
of absence without leave (AWOL) , we AFFIRM the initial decision .
¶2 The administrative judge considere d the appellant’s 760 hours of AWOL
under the standard and exceptions set out in Cook v. Department of th e Army ,
18 M.S.P.R. 610 (1984). However, we do not consider this leave under the Cook
standard, but we will instead consider it a separate charge. Savage v. Department
of the Army , 122 M.S.P.R. 612 , ¶ 32 (2015) , overruled on other grounds by
Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶ 25. To prove a
charge of AWOL, the age ncy must show that the employee was absent, and that
her absence was not authorized, or that her request for leave was properly denied.
Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 6 (2009). Here , the
proposal notice states that the appellant was advised on May 22, 2015 , that she
3
had exhausted all of her leave options and that her absences were being recorded
as AWOL, and it is undisputed the appellant was absent and did not return to
work. Initial Appeal File , Tab 6 at 63 -64. Further, the agency has provided
evidence showing tha t she was absent, that her absences from May 22, 2015 , were
not authorized, and that her requests were properly denied. Id. at 75 -78, 96 -106,
108-23, 125 -28, 130 -35. Therefore, we find that the agency proved the charge of
AWOL. Accordingly, we find no b asis upon which to disturb the initial decision.
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 appro priate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement 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 thr ee main possible choices of review
below to decide which one applies to your particular case. If 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 th e notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judi cial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
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 of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 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 discriminati on claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decis ion. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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:
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 “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Feder al Circuit or any other circuit court 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 fo r Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you m ay visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants t hat
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 | SPANN_REGINA_L_CH_0752_17_0106_I_1_FINAL_ORDER_2035210.pdf | 2023-05-25 | null | CH-0752 | NP |
3,094 | https://www.mspb.gov/decisions/nonprecedential/ELTAHER_KAMILIA_S_NY_0752_17_0012_X_1_FINAL_ORDER_2035220.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KAMILIA S. ELTAHER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -17-0012 -X-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kamilia S. Eltaher , Edison, New Jersey, pro se.
Jane Yoon , Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
FINAL ORDER
¶1 This case is before the Board on the appellant’s petition for enforcement of
the administrative judge’s January 1 8, 2018 decision in her appeal , which
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
reversed her removal and ordered the agency to cancel the action and
retroactively reinstate her effectiv e September 6, 2016. Eltaher v. Department of
Veterans Affairs , MSPB Docket No. NY -0752 -17-0012 -I-1, Initial Appeal File,
Tab 63, Initial Decision . For the reasons discussed below, we find the agency is
in compliance and DISMISS the petition for enforcem ent.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In a compliance initial decision issued July 11, 2018, the administrative
judge found that , although the agency had restored the appellant to her position
and made a lump sum payment of back pay, it h ad provided no explanation of its
computations nor any information relating to the interest on back pay and the
benefits to which the appellant was entitled. Eltaher v. Department of Veterans
Affairs , MSPB Docket No. NY -0752 -17-0012 -C-1, Compliance File, Tab 23,
Compliance Initial Decision (CID ) at 4. She also noted that the agency had
provided no information relating to the payments due the appellant for two pay
periods following her reinstatement which the appellant stated she had not
received.3 Accord ingly, the administrative judge ordered the agency to submit
explanations of its back pay award and the interest on the back pay, the status of
the appellant’s pay for Pay Periods 3 and 4 of 2018, and whether the appellant
had been credited with the leave to which she was entitled for the period of her
removal. CID at 5. The order directed the agency to submit to the Clerk of the
Board within 35 days any statement of compliance with supporting evidence and
a narrative explaini ng in detail why its evidence satisfie d the requirements set
forth in the order. Id.
3 The appellant also sought compensation for the tax consequences of her lump sum
back pay award and for medical expenses she incurred during the back pay period, but
the administrative judge correctly found that the Board lacks authority for such
remedies. See Holtgrewe v. Federal Deposit Insurance Corporation , 65 M.S.P.R. 137,
140 (1994); Kennedy v. United States Postal Service , 42 M.S.P.R. 429 , 432 (1989).
3
¶3 On August 15, 2018, the agency submitted its statement of compliance and
supporting evidence to comply with the administrative judge’s order. Eltaher v.
Department of Veterans Affairs , MSPB Docket No. NY -0752 -17-0012 -X-1,
Compliance Referral File (CRF), Tab 1. On the same day, the Clerk of the Board
issued an Acknowledgment Order that notified the appellant that she could
respond to the agency’s submission by filing wr itten arguments with the Clerk
within 20 calendar days of service of the agency’s submission. CRF , Tab 2. The
Acknowledgement Order also stated that, if the appellant did not respond to the
agency’s evidence of compliance within 20 days, the Board may as sume that
appellant is satisfied and may dismiss the petition for enforcement. Id.
¶4 In its submission, the agency provided evidence that it had paid the
appellant back pay and interest due for the back pay period (September 6, 2016,
through February 5, 201 8). CRF, Tab 1. The agency explained the basis for the
two payments that were issued to the appellant. The first calculation included
most of the back pay due as well as the pay owed for 2018 Pay Period 3, less the
appellant’s interim earnings, in the g ross amount of $177,283.25. The second
calculation included the remaining back pay and the interest on all the back pay
due, $7,351.48, as well at the pay owed for 2018 Pay Period 4, in the gross
amount of $21,864.383. Id. at 4. The agency’s evidence sh owed the deductions
made from these amounts with the resulting adjusted amounts paid to the
appellant, $75,226.14 and $19,439.88. Id. at 4. The agency also submitted the
calculations that it used to determine the amount of interest that was paid the
appe llant.4 Id. at 14 -19, 28 -30. Finally, the agency presented tables of the
appellant’s post -reinstatement accumulation of annual and sick leave that show
the initial leave amounts used. Id. at 33. In response to an order to submit the
basis for these numbers, the agency submitted on Nov ember 11, 2018, additional
evidence explaining the calculations on whi ch they were based. CRF, Tab 4 at 4,
4 The agency’s interest determination is based on the online interest calculator approved
by the Office of Perso nnel Management.
4
9-11. On June 11, 2020, the agency also submitte d evidence that it had awarded
additional back pay due for the appellant’s Step 9 pay increase that occurred
during the back pay period. CRF, Tab 24.
¶5 The appellant has challenged the agency’s back pay and restored leave
calculations, but does not identif y specific errors in these calculations , which on
their face show compliance with the Board’s order. CRF, Tab 30. The appellant
has objected to the agency’s delay in restoring her leave, which she states resulted
in some absences being treated as absence without pay. Id. at 5. The agency’s
alleged error concerns her service after the close of the back pay period and is
thus outside the scope of this case. The same reason excludes the appellant’s
claim that she should be paid for transit benefits she un fairly lost after her return
to work because her application for their restoration was found incomplete.5 Id.
at 4. The appellant’s claim that the agency did not properly calculate her
retirement contributions in December 2018, id. at 4-5, either reitera tes her back
pay claims rejected above or is based on later actions outside the back pay period.
Her claim that the agency wrongly denied her compensation benefits for an injury
at work that occurred in January 2020, id. at 6, is also one that does not pe rtain to
whether the agency retroactively restored her to duty. The appellant has not
otherwise shown that the agency has failed to properly restore her.
¶6 Accordingly, we find that the agency is in compliance and dismiss the
appellant’s petition for enfor cement. This is the fi nal decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulation, section 1201.183(c)(1) ( 5 C.F.R. § 12 01.183 (c)1).
5 The agency notes that when she submitted a complete application , the benefits were
restored. CRF, Tab 22 at 4 -5.
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 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:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights include d in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you 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
7
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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited 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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of compe tent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases wit h the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ELTAHER_KAMILIA_S_NY_0752_17_0012_X_1_FINAL_ORDER_2035220.pdf | 2023-05-25 | null | NY-0752 | NP |
3,095 | https://www.mspb.gov/decisions/nonprecedential/OBIEFUNA_NDIDI_DE_1221_17_0127_W_1_FINAL_ORDER_2035244.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NDIDI OBIEFUNA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -17-0127 -W-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James F. Ralls, Jr., Esquire , Liberty, Missouri, for the appellant.
Pearson E. Dubar , Esquire, Overland Park, Kansas, for the appellant.
Michael E. Anfang , Esquire, Kansas City, 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 initial decision, which
denied her request for corrective action in this individual right of action 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
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error aff ected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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 VACATE the administra tive judge’s alternate finding that the
agency presented clear and convincing evidence that it would have taken the
personnel action absent the appellant’s protected disclosures and activity , we
AFFIRM the initial decision.
¶2 The appellant asserts on review that the administrative judge made
erroneous credibility findings about the deciding official’s knowledge of her
July 31, 2015 Office o f Inspector General (OIG) disclosures and thus she proved
that her protected disclosures and activity were a contributing factor in her award
denial . Petition for Review (PFR) F ile, Tab 4 at 12 -15, Tab 7 at 9-10. For the
reasons set forth in the initial decision, we agree with the administrative judge
that the appellant failed to prove that the deciding official had actual or
constructive knowledge of her OIG disclosures. Initial Appeal File , Tab 38,
Initial Decision (ID) at 8 -13.2 Although the appellant disagrees with the
2 The administrative judge also properly considered other relevant evidence on the
contributing factor issue; specifically, the strength or weakness of the agency ’s reasons
for taking the personnel action, whether the disclosure was personally directed at the
proposing or deciding officials, and whether these individuals had a desire or motive to
retaliate against the appellant. ID at 13; Dorney v. Department of the Army ,
3
administrative judge’s credib ility determinations, we find that her disagreement is
not a sufficiently sound reason to ove rturn them. See Diggs v. Department of
Housing and Urban Development , 114 M.S.P.R. 464 , ¶ 8 (2010) (finding that the
Board must defer to an administrative judge’s credibility determinations when
they are based, explicitly or implicitly, on observ ing the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound” reasons for doing so).
¶3 Because we find that the appellant failed to prove that her disclosures and
protected activity were a contributing factor in her award denial, the Board may
not proceed to determine whether the agency proved by clear and convincing
evidence that it would have denied the award in the absence of her disclosures
and protected activity. 5 U.S.C. § 1221 (e)(2); see Clarke v. Department of
Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014), aff’d per curium , 623 F.
App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate the administrative judge’s
findings concerning whether the agency met its c lear and convincing burden. ID
at 13 -21.3
¶4 The appellant asserts on review that the administrative judge failed to
consider her national origin and accent when speaking English in his demeanor
analysis. PFR File, Tab 4 at 14. We do not agree with the appellant’s cursory
allegation, but to the extent that she alleges bias by the administrative judge, her
claim does not overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. See Oliver v. Department of
117 M.S.P.R. 480 , ¶ 15 (2012). We discern no basis fo r disturbing the administrative
judge’s findings regarding these other factors.
3 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 nited States Code. Our disposition of this matter would be the same under both
pre- and post -NDAA law.
4
Transportation , 1 M.S.P.R. 382 , 386 (1980); see also Bieber v. Department of the
Army , 287 F.3d 13 58, 162 -63 (Fed. Cir. 2002).
¶5 Based on the foregoing, we deny the petition for review and affirm the
initial decision as modified by this Final O rder.
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 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
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
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
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 review to the EEOC by regular U.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
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 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.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for 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 | OBIEFUNA_NDIDI_DE_1221_17_0127_W_1_FINAL_ORDER_2035244.pdf | 2023-05-25 | null | DE-1221 | NP |
3,096 | https://www.mspb.gov/decisions/nonprecedential/OSBY_CONRAD_D_SF_0752_17_0346_I_1_FINAL_ORDER_2035281.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CONRAD D. OSBY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0752 -17-0346 -I-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald P. Ackerman , Culver City, California, for the appellant.
Maureen Ney , Esquire, and Steven R. Snortland , Esquire , Los Angeles,
California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Me mber
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
upheld his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was a GS -11 Patient Representative (Transitional Patient
Advocate) for the agency. Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 33. His
basic job duties were to “act as a communicator, facilitator, and problem solver”
for patients in the Veterans Administration Healthcare System, and to be a
personal advocate for these individuals as they mo ve through the system. IAF,
Tab 18 at 25. Effective April 3, 2017, the agency removed the app ellant based on
three charges: (1) Entering Incorr ect Information Into a Patient’s Records
(12 specifications); (2) Inappropriate Conduct ( 6 specifications); an d (3) Failure
to Follow Instructions ( 13 specifications). IAF, Tab 5 at 34 -36, 48 -54. The
appellant filed a Board appeal challenging his removal and raising an affirmative
defense of retaliation for prior equal employment opportunity (EEO) activity.
IAF, Tab 1, Tab 17 at 5 -10.
¶3 After holding a hearing, the administrative judge issued an initial decision
upholding the removal. IAF, Tab 24, Initial Decision (ID). She sustained all
three charges, although not all of the underlying specifications, and found that the
agency established a nexus between the charges and the ef ficiency of the service.
3
ID at 4-24. She found that the removal penalty was reasonable, and that the
appellant failed to prove his affirmative defense. ID at 24 -28.
¶4 The appellant has fil ed a petition for review, disputing the charges and the
penalty determination, and renewing his allegation of reprisal for EEO activity.
Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR
File, Tab 3.
ANALYSIS
¶5 In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the
burden of proving by preponderant evidence that its action was taken for such
cause as would promote the efficiency of the service. 5 U.S.C.
§ 1201.56 (b)(1)(ii) ; MacDonald v. Department of the Navy , 4 M.S.P.R. 403 , 404
(1980). To meet this burden, the agency must prove its charge, esta blish 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
removal may not be sustained if the appellant shows th at it was based on a
prohibited personnel practice described in 5 U.S.C. § 2302 (b). 5 U.S.C.
§ 7701 (c)(2) (B); Mata v. Department of the A rmy, 114 M.S.P.R. 6 , ¶ 11 (2010) ;
5 C.F.R. § 1201.56 (c)(2).
¶6 Under Charge 1, Entering Incorrect Information Into a Patients’ Records ,
the agency essentially charged the appellant with entering into the Computerized
Patient Records System (CPRS) that he provided several patients assistance that
he did not actually pr ovide. IAF, Tab 5 at 48 -50. The administrative judge found
that the agency proved 7 of the 12 specifications and she therefore sustained the
charge. ID at 4 -14. On petition for review, the ap pellant disputes
Specifications 5-9. PFR File, Tab 1 at 3 -4. However, because the administrative
judge did not sustain these specifications , we find that the appellant’s argument is
immaterial and provides no basis to disturb the initial decision. ID at 2 -3, 9-12.
4
As for the specifications that the administrativ e judge did sustain, the appellant
argues that the agency never trained him on how to enter data into CPRS. PFR
File, Tab 1 at 3. However, even if true, we find that this argument is likewise
immaterial. A lack of CPRS training might explain a deficienc y in the appellant’s
CPRS data, but it would not explain why he entered affirmatively incorrect data
into the system . For the reasons explained in the initial decision, we agree with
the administrative judge that the agency proved Specifications 1 -4 and 1 0-12. ID
at 4-8, 12 -14. We therefore agree with the administrative judge that the agency
proved its charge. ID at 14; see Burroughs v. Department of the Army , 918 F .2d
170, 172 (Fed. Cir. 1990) (finding that, w hen more than one event or factual
specification supports a single charge, proof of one or more, but not all, of the
supporting specifications is s ufficient to sustain the charge ).
¶7 Under Charge 2, Inappropriate Conduct, the agency essentially charged the
appellant with sending six disrespectful or insubordinate emails to his supervisor.
IAF, Tab 5 a t 50 -51. The administrative judge sustained the charge and all
specifications e xcept for Specification 4. ID at 14 -19. On petition for review,
the appellant argues that his supervisor never raised any concerns to him about
his communications until his r emoval was proposed. PFR File, Tab 1 at 4. We
find that this argument goes more properly to the issue of penalty, discussed
below. The appellant does not contest the inappropriateness of the emails
underlying the five sustained specifications , and we ag ree with the administrative
judge, for the reasons explained in her initial decision, that they were, in fact,
inappropriate. ID at 14 -19. We therefore agree with the administrative judge that
the agency proved its charge. ID at 19; see Burroughs , 918 F .2d at 172.
¶8 Under Charge 3, Failure to Follow Instructions, the agency included
1 specification related to the appellant’s failure to follow instructions for logging
in for telework, and 12 specifications related to his failure to follow instructions
to indicate in CPRS when a patient “no-showed” to an appointment. IAF, Tab 5
at 51-53. The administrative judge sustained Specification 1, regarding the
5
telework login, as well as Specifications 3 -11 and 13, regarding the CPRS
no-show data. ID at 2 -3, 19 -23. On petition for review, the appellant does not
challenge the administrative judge’s findings regard ing Specification 1. For the
reasons explained in the initial decision, we agree with the administrative judge
that the agency proved that specification. ID at 19 -20.
¶9 As for the remaining specifications regarding the CPRS no -show data, the
appellant appears to argue that he did not follow instructions to enter this data
because he was concerned about violating the privacy provisions of the Health
Insura nce Portability and Accountability Act of 1996 (HIPAA), Pub. L.
No. 104-191, 110 Stat. 1936 . PFR File, Tab 1 at 4. We seriously doubt that the
appellant had a good faith belief that placing no -show information in a medical
record could possibly violate H IPAA. Moreover, even if the appellant were
genuinely concerned that his supervisor’s instructions might somehow conflict
with the HIPAA privacy requirements, he could have asked his supervisor for
guidance in navigating the privacy issue, but we see no indication that he did so.
We do not credit the appellant’s assertion that he had no opportunity to ask
questions. PFR File, Tab 1 at 4. Finally, the appellant questions the source of the
agency’s information that these patients no -showed to their appointments. Id.
The appellant’s supervisor testified that she deduced from the absence of any
follow -up documentatio n in their notes that these patients no -showed to their
scheduled appointments. Hearing Recording, July 25, 2017, Track 7 at 42:12
(testimony of the appellant’s supervisor). We find that this circumstantial
evidence was sufficient to establish that the p atients no -showed , as alleged. For
the reasons explained in the initial decision, we thus agree with the administrative
judge that the agency proved Specifications 3 -11 and 13. ID at 20 -23. We agree
with the administrative judge that the agency proved i ts charge. ID at 23; see
Burroughs , 918 F.2d at 172.
¶10 The appellant also disputes the penalty, arguing that he was never counseled
or placed on a performance improvement plan prior to his removal. PFR File,
6
Tab 1 at 4 -5. To the extent that the appellant is arguing that he was not on notice
that his conduct was unacceptable, we agree with the administrative judge that he
was on notice , either through his supervisor ’s emails or by virtue of simply
having worked with that supervisor for 8 years . ID at 27 -28; see Social Security
Administration v. Carr , 78 M.S.P.R. 313 , 340 (1998) (holding that even without
formal prior notice, an employee should have known that vulgar language was
inappropriate), aff’d , 185 F.3d 1318 (Fed. Cir. 1999) . There is no requirement
under 5 U.S.C. c hapt er 75 that an agency provide an employee with a specific
warning before it pro poses an adverse action. Flanagan v. Department of the
Army , 44 M.S.P.R. 378 , 381 (1990) . Nor is there any general requirement that an
agency use progressive discipline when its table of penalties lists removal as an
option for a first occurrence of the proven misconduct. See Roberson v. Veterans
Administration , 27 M.S.P.R. 489 , 493 (1985) . In this case, removal is within the
range for a first occurrence of either intentionally m isstating a material fact
(Charge 1) or disrespectful conduct towards a supervisor (Charge 2). IAF, Tab 6
at 63, 66. The appellant also argues, with supporting documentation, that the
administrative judge mistakenly found that he was suspended twice in 2 009, when
in fact he was only suspended once, but served his suspension over two
nonconsecutive periods. PFR File, Tab 1 at 1 -2, 6-9. He argues that he was
unable to explain this to the administrative judge because the agency “did not
provide him with th e information” until after the initial decision was issued. Id.
at 2. As an initial matter, we find that the notice of proposed removal indicates
that the appellant was suspended twice in 2009, so he should have been aware of
this issue well before his B oard appeal was even filed. IAF, Tab 1 at 53.
Furthermore, to the extent that the appellant is arguing that the agency failed to
produce the suspension documentation during discovery, it was incumbent upon
him to file a timely motion to compel to obtain this information. See Ioannou v.
Office of Personnel Management , 56 M.S.P.R. 426 , 431 (1993) , abrogated on
other grounds by R uskin v. Office of Personnel Management , 73 M.S.P.R. 544
7
(1997) . In any event, there was nothing to prevent the appellant from e xplaining
this issue to the administrative judge even absent supporting documentation.
Moreover, even considering that the appellant served one prior 30 -day
suspension , rather than two prior 15 -day suspensions, this fact is of insufficient
weight to alter the outcome of the penalty analysis. For the reasons explained in
the initial decision , we agree with the administrative judge that the Board lacks
an adequate basis to disturb the agency -imposed penalty of removal. ID at 26 -28;
see generally Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981).
¶11 Finally, the appellant renews his claim that his removal was retaliation for
his prior EEO activity. PFR File, Tab 1 at 3. We find that this argument
constitutes mere disagreement with the administrative judge’s analysis of the
issue, and as such , provides no basis to disturb the initial decision. See Weaver v.
Department of the Navy , 2 M.S.P.R. 129 , 133 -34 (1980) . For the reasons
explained in the initial decision, we agree with the administrative judge that the
appellant did not prove this affirmative defense.2 ID at 24 -26.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
2 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 , ¶¶ 20 -22, 29 -33. It is unclear f rom the record whether the
prior EEO activity was based on a claim of disability discrimination . A ssuming
arguendo that it was, the appellant would need to prove that the retaliation was a but -for
cause of the action at issue in this case. See Pridgen , 2022 MPSB 31 , ¶¶ 45 -47. We
find that the appellant has not met this burden.
3 Since the issuance of the initial decision in thi s matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
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
9
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services 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
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,
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 C ommission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commissio n
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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 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.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judic ial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
11
petition for review within 60 days of the date of issuance of this deci sion.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. P ub. L. No. 115 -195,
132 Stat. 1510.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | OSBY_CONRAD_D_SF_0752_17_0346_I_1_FINAL_ORDER_2035281.pdf | 2023-05-25 | null | SF-0752 | NP |
3,097 | https://www.mspb.gov/decisions/nonprecedential/HEAROD_CARL_WAYNE_AT_0752_20_0504_X_1_FINAL_ORDER_2035300.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARL WAYNE HEAROD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -20-0504 -X-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brandon Ryan Gassaway , Esquire, Muskogee, Oklahoma, for the appellant.
Alonda Price , Garland, Texas, for the agency.
Cecilia G. Isenberg , Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 On May 19, 2021, the administrative judge granted the appellant’s petition
for enforcement, found the Department of Veterans Affairs in noncompliance
with an August 26, 2020 initial decision , and ordered the agency to “[p]ay all
back pay and benefits due to the appellant without further delay.” Hearod v.
Department of Veterans Affairs , MSPB Docket No. AT -0752 -20-0504 -C-2,
Compliance File, Tab 5, Compliance Initial Decision at 3. On July 20, 2021, the
appellant moved to dismiss his petition for enforcement on the basis that he
“received his court ordered back pay on July 13, 2021. ” Hearod v. Department of
Veterans Affairs , MSPB Docket No. AT -0752 -20-0504 -X-1, Compliance Referral
File, Tab 5 at 3. Accordingly, we find that the agency is now in compliance and
DISMISS the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
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 reason able 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 these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
3
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 d etermines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wi sh to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your ca se by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case , you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals f or the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in thi s matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
5
requirement of prepayment of fees, costs , or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained 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
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 judic ial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. P ub. L. No. 115 -195,
132 Stat. 1510.
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/Cour tWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HEAROD_CARL_WAYNE_AT_0752_20_0504_X_1_FINAL_ORDER_2035300.pdf | 2023-05-25 | null | AT-0752 | NP |
3,098 | https://www.mspb.gov/decisions/nonprecedential/ROGERS_JEFFREY_L_AT_0752_16_0742_X_1_FINAL_ORDER_2035311.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY L. ROGERS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-0752 -16-0742 -X-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Archibald J. Thomas, III , Esquire, Jacksonville, Florida, for the appellant.
Mark E. Gleason , Esquire, Kings Bay, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Me mber2
FINAL ORDER
¶1 On April 13, 2018, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
in partial noncompliance with the March 1, 2017 initial decision, which mitigated
the appellant’s removal to a letter of reprimand and ordered him reinstated with
back pay and benefits. Rogers v. Department of the Navy , MSPB Docket No. AT -
0752 -16-0742 -C-1, Compliance File (CF), Tab 28, Compliance Initial Decision
(CID) ; Rogers v. Depar tment of the Navy , MSPB Docket No. AT -0752 -16-0742 -I-
1, Initial Appeal File (IAF), Tab 19, Initial Decision (ID) . For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
BACKGROUND
¶2 Effective July 8 , 2016, the agency removed the appellant from his position
as an Optical Instrument Repairer for conduct unbecoming a Federal employee.
IAF, Tab 1 at 24 -33, Tab 3 at 35. The appellant timely appealed his removal to
the Board. IAF, Tab 1. I n the March 1 , 2017 initial decision , the administrative
judge mitigated the appellant’s removal to a letter of reprimand and order ed the
agency to cancel the removal , substitute in its place a letter of reprimand, and
provide the appellant with appropriate back pay, interest, and benefits. ID at 18.
Neither party filed a petition for review, and the initial decision became the final
decision of the Board on April 5, 2017 . ID at 21 ; see 5 C.F.R. § 1201.113 .
¶3 On July 21, 2017, the appellant petition ed for enforcement of the initial
decision . CF, Tab 1. He submitted evidence showing that the agency had
cancelled his removal and reinstated him to his former position as of March 9,
2017, and had placed in his Official Personnel File (OPF) a letter of reprimand
for conduct unbecoming a Federal employee. Id. at 10 -13. He also submitted
evidence showing that, for the 18 pay periods of the back pay period —from the
pay period ending on July 23, 2016, through the pay period ending on March 18,
2017 —the agency paid him regular pay back pay in the gross amount of
$39,254.40 and overtime back pay for 19 to 19. 5 hours of overtime per pay period
in the gross amount of $14,332.03 . Id. at 14. The appellant argued, however,
3
that the letter of reprimand placed in his OPF contained allegations that were not
proven at the hearing and that the agency had failed to pro vide him the
appropriate amount of back pay, interest, and benefits. CF, Tab 1.
¶4 In the April 13, 2018 compliance initial decision, the administrative judge
granted the appellant’s petition for enforcement , finding the agency in partial
noncompliance with the Board’s order. CID . First , the administrative judge
found that , in determining that the appellant was entitled to 19 or 19.5 hours of
overtime back pay per pay period, the agency acted unreasonably by averaging
the overtime of all employ ees of the same title and grade , regardless of their date
of seniority , which determines the employee’s priority for the assignment of
voluntary overtime . CID at 3-5. The administrative judge therefore ordered the
agency to recal culate the overtime portion of the appellant’s back pay award
using only comparators of similar seniority to the appellant and to provide the
appellant a narrative explanation of its calculations , the documents on which it
based its calculations, and evide nce regarding the seniority dates and overtime
hours of the employees it used as comparators . CID at 6, 8 -9. Second, she found
that the letter of reprimand exceeded the scope of the Board’s order and ordered
the agency to rescind it and replace it with a corrected one retroactive to
August 4, 2016 . CID at 7-9. Neither party filed any submission with the Clerk of
the Board within the applicable time limit s, and the appellant’s petition for
enforcement was referred to the Board for a final decision on issues of
compliance pursuant to 5 C.F.R. § 1201.183 (b)-(c). Rogers v. Department of the
Navy , MSPB Docket No. AT -0752 -16-0742 -X-1, Compliance Referral File
(CRF), Tab 1.
¶5 On May 31, 2018, the agency s ubmitted to the Board its first notice of
compliance. CRF, Tab 2. The agency stated that it had recalculated the amount
of overtime pay due t o the appellant by averaging the number of overtime hours
worked by the two employees most similarly situated to the appellant in terms of
years of service and provided evidence showing that those employees, whom it
4
designated as Employee 1 and E mployee 2, had 19 and 12 years of service,
respectively, and that the appellant had 13 years of service. Id. at 2, 4. The
agency determined th ese comparators worked an average of 50 hours of overtime
per pay period from July 9, 2016, through July 26, 2017 .3 Id. at 2. The agency
stated that the Defense and Finance Accounting Service (DFAS) would issue
payment to the appellant for 50 hours of overtime for each pay period minus the
overtime hours already paid and all normal deductions. Id. The agency further
indicated that it rescinded the letter of reprimand containing the unproven
allegations and replaced it with a corrected letter retroactively dated to August 4,
2016. Id. at 3. The agency provided a copy of the letter, which reflected that it
would remain in the appellant’s OPF for 2 years from the date of the letter. Id.
at 6-7.
¶6 In a June 20, 2018 response to the agency’s evidence of compliance, the
appellant argued that the agency still had not paid him or provided him its back
pay and benefit calculati ons. CRF, Tab 3 at 4 -5. He also expressed concern that
the agency had included in its overtime back pay calculation the number of
overtime hours worked by the comparators outside of the back pay period without
providing any evidence regarding the effect of the additional 9 pay periods on the
average. Id. at 5. In addition , the appellant argued that the agency had not
provided him the “Command Letter” and supporting documents identified in the
“DFAS Checklist ” at the end of the initial decision . Id. at 6; ID at 27.
¶7 On August 3, 2018, the agency submitted a second notice of compliance
indicating that it had paid the appellant’s back pay award in full on June 29,
3 As noted above, the agency reinstated the appella nt to his former position as of
March 9, 2017. CF, Tab 1 at 10. However, the agency calculated the appellant’s
additional back pay award by averaging the number of overtime hours worked by the
two comparators through July 26, 2017 . CRF, Tab 2 at 2, 5. The agency did not
explain why it relied on overtime data from outside the back pay period to calculate the
appellant’s overtime back pay award.
5
2018, and had rescinded and redrafted the prior letter of reprimand. CRF, Tab 4
at 4-5. Regarding its overtime back pay calculations, the agency submitted a
chart showing the number of overtime hours per pay period for which it had
previously paid the appellant and, by subtracting that number from 50 hours, the
number of additional hours of overtime for which he was owed payment for each
pay period. Id. at 9. The chart reflects that , for the 27 pay periods from July 23,
2016, through July 22, 2017 ,4 he was entitled to retroactive earnings for a total of
897.355 additional hours of overtime . Id. Notwithstanding its determination that
the appellant was entitled to payment for 897.35 additional hours of overtime, the
agency’s submissions reflect that it paid the appellant for 882.35 hours of
overtime and 16 hours of regular pay. Id. at 41, 44-47.
¶8 In an August 23, 2018 response to the agency’s second notice of
compliance, the appellant argued that the agency failed to explain how it
calculated his Thrift Savings Plan ( TSP) withholdings and contributions for the
back pay period and that it a ppeared that those amounts were incorrect. CRF,
Tab 5 at 4. He also requested that the agency certify that it had removed the
letter of reprimand from his OPF because the 2 -year period from August 4, 2016,
had elapsed. Id. at 5.
¶9 In an August 7, 2019 submission , the agency asserted that it had reviewed
the appellant’s TSP withholdings and contributions related to the back pay award
4 The agency did not explain why it paid the appellant additional overtime back pay for
the 9 pay periods aft er his reinstatement. Compare CF, Tab 1 at 10, 14 with CRF,
Tab 4 at 9.
5 As described in the Clerk of the Board’s January 23, 2020 order, there were several
discrepancies in the agency’s representations regarding the total number of additional
overtime hours to which the appellant was entitled , including references to 184 hours,
882.35 hours, or 898.35 hours of overtime . CRF, Tabs 4, 8, 9. In response, t he agency
clarified that the appellant was entitled to 897.35 hours of additional overtime pay but
that he received payment for 882.35 hours of overtime, which included an overpayment
of 1 hour, and 16 hours of regular pay, for a total of 898.35 hours of additional
retroactive earnings. CRF, Tab 13.
6
and determined that they were correct. CRF, Tab 8 at 4. The agency explained
that TSP withholdings and contributions ar e not authorized for overtime and that
the appellant was therefore entitled only to TSP withholdings and contributions in
connection with his retroactive earnings for 16 hours of regular pay. Id. at 4-5.
Finally, the agency asserted that it had deleted t he letter of reprimand from the
appellant’s official personnel file and provided evidence reflecting the deletion.
Id. at 5, 8 -9.
¶10 In a January 23, 2020 order, the Clerk of the Board ordered the agency to
clarify, among other things, why it paid the appe llant for 16 hours of regular pay
instead of overtime pay. CRF, Tab 9 . In response, the agency stated that it paid
the appellant 16 hours of regular pay, rather than overtime pay, for the pay period
ending on June 10, 2017, because the appellant had not worked 40 hours per week
during that pay period but had been absent without leave for 16 hours. CRF,
Tab 13 at 5. The agency explained that the Fair Labor Standards Act (FLSA)
requires nonexempt employees, such as the appellant, to work 40 hours of work
per week before being paid overtime . Id. Accordingly, the agency explained
that, instead of paying the appellant for an additional 50 hours of overtime for
that pay period , it paid him for 16 regular hours and 34 overtime hours. Id.
¶11 On March 18, 2020, the appellant challenged the agency’s representation
that the FLSA required payment of 16 hours of regular pay, arguing that it was
contrary to the ordered relief compliance initial decision. CRF, Tab 14 at 4 -5.
He also reiterated his argument that the agency failed to provide him the
documentation set forth in the initial decision’s DFAS Checklist. Id. at 5-6.
ANALYSIS
¶12 When the Board reverses a personnel action, it orders that the appellant be
placed, as nearly as possible, in the same situation he would have been in had the
wrongful personnel action not occurred. Vaughan v. Department of Agriculture ,
116 M.S.P.R. 319 , ¶ 5 (2011). The agency bears the burden to prove compliance
7
with the Board’ s order by a preponderance of the evidence.6 Id.; 5 C.F.R.
§ 1201.183 (d). An agency ’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan , 116 M.S.P.R. 319 , ¶ 5. The appellant may rebut the agency ’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
¶13 In the compliance initial decision, the administrative judge found that the
agency had to take the following actions to resolve the outstanding compliance
issues : (1) recalculate the overtime portion of the appellant’s back pay award
using only comparators of similar seniority as the appellant; (2) provide the
appellant a narrative explanation of its calculations, the documents on which it
based its calculations, and evidence regarding the seniority dates and overtime
hours of the employees it used as comparators; and (3) rescind the March 29,
2017 letter of reprimand and replace it with a corrected one retroactive t o
August 4, 2016. CID at 6 -9.
¶14 As described above, the agency determined that Employee 1 and
Employee 2 were the most similarly situated in terms of service computati on date
to the appellant , who had 13 years of service, and submitted evidence showing
that Employee 1 had 19 years of service and Employee 2 had 12 years of service.
CRF, Tab 2 at 2, 4. The appellant has not challenged the agency’s selection of
these two employees as the most similarly situated in terms of service
computation dates , and we find that the y are appropriate comparators for the
purposes of calculating the appellant’s overtime back pay award .
¶15 The agency submitted evidence showing that from July 9, 2016, through
July 2 6, 2017, Employee 1 worked 1,474 hours of overtime (an average of
6 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
8
54.5 hours of overtime per pay period), and Employee 2 worked 1,182 hours of
overtime (an average of 43.8 hours per pay period) . CRF, Tab 2 at 5. The agency
therefo re determined that the appellant was entitled to 50 hours of overtime back
pay for each of the 27 pay period s covering that timeframe . Id. at 2. By
subtracting the number of overtime hours for which it had already paid the
appellant per pay period from 5 0 hours per pay period , the agency determined that
the appellant was entitled to an additional 897.35 hours of overtime pay for the
entire period from pay period ending on July 23, 2016 through pay period ending
on July 22, 2017. CRF, Tab 2, Tab 4 at 9. As noted above, t he agency did not
explain why it relied on overtime data from outside of the back pay period to
calculate the appellant’s overtime back pay award or why it paid him overtime
back pay for the 9 pay periods after his reinstatement.
¶16 To the extent the agency relied on comparator overtime data from outside of
the back pay period to calculate the appellant’s back pay award, we find that the
agency erred. The agency should have calculated the overtime back pay owed to
the appellant by av eraging the number of overtime hours worked by the
comparators for the relevant period , i.e., the back pay period from the appellant’s
July 8, 2016 removal through his March 9, 2017 reinstatement. See Russo v. U.S.
Postal Service , 107 M.S.P.R. 296 , ¶ 11 (2007) (stating that one way to calculate
overtime back pay is based on the average overtime hours worked by similarly
situated emplo yees during the relevant time period ). The agency’s error is
compounded by the fact that it failed to provide any evidence or information
reflecting the effect of the comparators’ overtime hours worked during the
additional pay periods on the average. Nonetheless, given that the agency in fact
paid the appellant overtime back pay up to 50 hours per pay period for the 9 pay
periods after he had been returned to duty, amounting to over 300 additional
hours of overtime pay, we find that the appellant receive d at least as much
overtime back pay as he would have received had the agency properly calculated
the average overtime hours worked by the comparators for the relevant period .
9
CRF, Tab 4 at 45-46. Accordingly , we find that the agency’s error s did not
prejudice the appellant. In addition, the appellant expressly stated that he would
accept the agency’s calculation of his overtime back pay if it paid him for
50 hours of overtime per pay period of the back pay period. CRF, Tab 3 at 5. As
the agency ultima tely did so, in addition to paying him for 50 hours of overtime
for 8 of the 9 following pay periods, we find that the appellant is satisfied.
¶17 Although the agency determined that the appellant was entitled to
897.35 hours of additional overtime back pay , the record reflects that the agency
actually paid him retroactive earnings for 882.35 overtime hours and 16 regular
hours. CRF, Tab 4 at 41, Tab 13 at 5 , 7. In response to the Board’s request to
explain why the agency paid some of the additional overtime hours at a regular
rate of pay, the agency explained that the FLSA precluded it from paying the
appellant 50 hours of overtime for the pay period ending on June 10, 2017,
because he had been recorded as AWOL for 16 hours du ring that pay period.
CRF, Tab 13 at 5. In response and for the first time, the appellant challenged the
agency’s decision to pay some of the 897.35 hours at a regular rate of pay,
arguing that it was contrary to the compliance initial decision. CRF, Ta b 14
at 4-5. However, the agency had no obligation to pay the appellant any back pay
for the pay periods after his March 9, 2017 reinstatement. As such , the agency’s
decisions regarding its payment of retroactive earnings to the appellant for the
9 pay p eriods following his reinstatement , including the payment of 16 hours at a
regular rate of pay for the pay period ending on June 10, 2017, are beyond the
scope of our review.
¶18 The appellant also challenged the agency’s TSP withholdings and
contributions in connection with the overtime back pay award. As the agency
correctly stated, however, TSP withholding and contribution percentages are
calculated on the basis of the appellant’s “basic pay ,” which does not include
overtime pay . See 5 C.F.R. §§ 1600.19 -.20, 1690.1 (providing that “basic pay”
means “basic pay” as defined in 5 U.S.C . § 8331 (3)). Accordingly, the agency
10
properly did not deduct any TSP withholdings or make any agency TSP
contributions in connection with the appellant’s overtime back pay award. CRF,
Tab 4 at 40 -41, Tab 8 at 4 -5. To the extent the appellant challenges the TSP
deduction and contribu tions in connection with the 16 hours of regular pay from
pay period ending on June 10, 2017 , we are without authority to review them
because they pertain to retroactive earnings outside of the back pay period.
¶19 In light of the foregoing, we find that the a gency has established
compliance with its obligation s to recalculate the overtime portion of the
appellant’s back pay award using comparators of similar seniority as the appellant
and to provide evidence and explanation supporting its calculations. Althou gh
the agency erroneously relied on overtime data from outside the back pay period
and paid the appellant overtime back pay for 9 pay periods after the end of the
back pay period, we find that the appellant was not prejudiced by these errors and
that they do not preclude a finding of compliance. We further find that the
agency complied with its obligation to rescind and redraft the letter of reprimand ,
which has since been deleted from the appellant’s OPF. Finally, the appellant’s
assertion that the agenc y has not provided him the documents from the DFAS
Checklist does not establish noncompliance. The DFAS Checklist s
accompanying Board decisions identify the information the civilian personnel
office s must provide to the civilian payroll office s via comman d letter to process
payments ordered by the Board and do not impose any obligation on the agency to
provide any documents to the appellant. See, e.g. , ID at 27.
¶20 We find that the agency is now in compliance and dismiss the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
this compliance proceeding. Title 5 of the Code of Federal Regulations, sec tion
1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
11
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 St ates 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, y ou must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and ca refully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to deci de which one applies to your particular case. If you have questions
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mo st appropriate in any matter.
12
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an a ppellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
13
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receiv es this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative 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
14
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohi bited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circu it or any court of appeals of
competent jurisdiction.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:
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washingto n, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
conta ined within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a giv en 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_Locat or/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROGERS_JEFFREY_L_AT_0752_16_0742_X_1_FINAL_ORDER_2035311.pdf | 2023-05-25 | null | AT-0752 | NP |
3,099 | https://www.mspb.gov/decisions/nonprecedential/REMBERT_DANIEL_AT_1221_19_0723_X_1_FINAL_ORDER_2035325.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIEL REMBERT,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -19-0723 -X-1
DATE: May 25, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel Rembert , Columbia, South Carolina, pro se.
Lucille P. Smith , Columbia, South Carolina, for the agency.
Sophia E. Haynes , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 On March 2, 2021, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding the agency
in noncompliance with a settlement agreement that had been filed with the Board
for enforcement purpose s at the request of the parties. Rembert v. Department of
Veterans Affairs , MSPB Docket No. AT -1221 -19-0723 -C-1, Compliance File
(CF), Tab 6, Compliance Initial Decision (CID); Rembert v. Department of
Veterans Affairs , MSPB Docket No. AT -1221 -19-0723 -W-3, Initial Appeal File
(IAF), Tab 17, Initial Decision. For the reasons discussed below, we now find the
agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 On November 9, 2020, the appellant and the agency executed a Settlement
Agreement (Agreement) in MSPB Docket No. AT-1221 -19-0723 -W-3, which was
entered into the record for enforcement purposes . CID at 1 ; see IAF, Tab 16 .
Pursuant to the Agreement, the agency promised , in pertinent part, to restore 100
hours of annual leave to the appellant within 45 days of the execution of the
Agreement. CID at 1 -2. Thus, the deadline for the agency to restore the
appellant’s leave was December 24, 2020. CID at 2.
¶3 On January 26, 2021, the appellant filed a petition for enforcement of the
Agreement asserting that the agency had not restored the 100 hours of annual
leave as agreed . CF, Tab 1 at 3, Tab 4 at 3 , Tab 5 at 3. The appellant further
represented that because of the agency’s delay, he would “ be over the limit of 240
hours [of accrued annual leave] by year[’]s end and would effectively lose the
benefit of using the 100 hours in the agenc[y’s] use or lose procedures.” CF,
Tab 4 at 3. Accordingly, the appellant requested specific performance of the
agency’s promise to restor e the 100 hours of annual leave ; an order directing the
agency to waive its policy requiring the forfeiture of leave exceeding 240 hours at
the close of the 2021 leave year ; and $5,000 in liquidated damages as a sanction .
3
Id. The agency responded with evidence showing that on December 16, 2020, it
had submitted a ticket to the Defense Finance and Accounting Service (DFAS),
which is the entity that processes payroll and leave accounting for the agency , but
conceded that the leave had not been restored within the time frame specified
under the settlement agreement . CID at 2.
¶4 In the March 2, 2021 compliance initial decision, the administrative judge
found the agency to be noncompliant with the Agreement. CID at 3 -4.
Accordi ngly, the administrative judge ordered the agency to restore 100 hours of
annual leave to the appellant’s leave account not later than 20 days after the
compliance initial decision became final.3 CID at 4, 6. The administrative judge
further ordered that “[t]he restored leave at issue shall not expire in less time than
it would have done had the agency timely processed the restoration of this leave
in accordance with the terms of the Agreement. In other words, the appellant
shall have no less time to act ually use this restored leave than he would have had
if the agency had properly processed the action as required within the
Agreement. ” CID at 5. The administrative judge, however, declined to award the
appellant the requested liquidated damages “because no such term for liquidated
damages is present within the Agreement, and such funds would exceed status
quo ante relief.” CID at 4 (footnote omitted).
¶5 Neither party filed a petition for review of the compliance initial decision ,
and the agency filed a statement asserting that it had taken the actions specified in
the compliance initial decision . Rembert v. Department of Veterans Affairs ,
3 The compliance initial decision’s reference to th e decision becoming final, and
corresponding provision of judicial appeal rights, were incorrect. Pursuant to 5 C.F.R.
§ 1201.183 (a)(4), only compliance initial decisions that find compliance will become
final in the absence of any petition for review by the parties. Compliance initial
decisions that find non -compliance —as this one did —do not become final regardless of
whether a petition for review is filed. Rather, if no petition for review is filed, the
findings of compliance become final, i.e., unchallengeable by the parties, while the
issues of compliance are referred automatically to the Board for a final decision.
5 C.F.R. § 1201.183 (a)(5), (b). Judicial appeal rights do not attach until the Board
issues such a final decision. 5 C.F.R. 1201.183 (c)(2).
4
MSPB Docket No. AT -1221 -19-0723 -X-1, Compliance Referral File (CRF),
Tab 1. Thus, the appellant’s petition for enfo rcement was referred to the Board
for a final decision on issues of compliance pursuant to 5 C.F.R.
§ 1201.183 (b)-(c). CRF, Tab 2. In its Acknowledgement Order , the Office of the
Clerk of the Board notified the appellant of his right to respond to the agency’s
submission and informed him that if he did not respond to the submission within
20 days of service , then the Board may assume that he is satisfied and dismiss the
petition fo r enforcement. CRF, Tab 2 at 3. The appellant did not respond to the
agency’s May 12, 2021 submission.
¶6 “The Board will enforce a settlement agreement that has been entered into
the record in the same manner as a final Board decision or order .” Burke v .
Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 8 (2014). When the
appellant alleges the agency has breached a settlement agre ement, the agency
must respond by produc ing relevant , material evidence of its compliance or
show ing good cause for noncompliance. Id. However, the appellant ultimately
bears the burden of proving the agency’s breach by a preponderance of the
evidence.4 Id.
¶7 In its May 12, 2021 statement of compliance, the agency asserts that DFAS
restored 100 hours of annual leave to the appellant’s leave account effective
May 3, 2021. CRF, Tab 1 at 4. The agency attached a completed ticket from
DFAS dated May 3, 2021, stating, in pertinent part, “The leave has been restored
to the employee [the appellant] .” CRF, Tab 1 at 9. The Board determines that
the agency’s submission shows that it is now in compliance with the requirement
that it restore 100 h ours of annual leave to the appellant.5 Since the appellant has
4 A preponderance of the evidence is “[t]he degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to find
that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4 (q).
5 However, the Board rejects the agency’s claim that the obligation to restore
appellant’s leave in accordance with the settlement agreement rests with the Defense
Finance and Accounting Service (DFAS) rather than with the ag ency. See CRF, Tab 1
5
not responded to the agency’s assertions and evidence of compliance, the Board
assumes he is satisfied. See Baumgartner v. Department of Housing and Urban
Development , 111 M.S.P.R. 86 , ¶ 9 (2009).
¶8 The agency’s submission did not address whether it had complied with the
administrative judge’s order that the agency waive the 240 -hour leave ceiling at
the close of the 2021 leave year to allow the appellant the same amount of time to
“use th is [100 hours of] restored leave . . . he would have had if the agency had
properly processed the action .” CID at 5 . As it may not become clear until the
close of the leave year whether the appellant has accrued leave in excess of 240
hours, the Board does not rule on that issue now. If the appellant accrues leave in
excess of 240 hours at the close of the leave year, and the age ncy does not afford
him the amount of time he would originally have had to use the leave had the
leave been timely restored —as ordered by the compliance initial decision —the
appellant may file another petition for enforcement at that time.
¶9 Based upon the foregoing, we find that the agency is in compliance at this
time and dismiss the petition for enforcement. This is the final decision of the
Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
at 4. DFAS processes payroll, leave, and other accounting actions on behalf of the
agency, and acts as the agency’s agent when it does so. The agency entered into the
settlement agreement and the obligations it contracted for —and an y penalties for
non-compliance —rest entirely with the agency. The agency is responsible for ensuring
that its agent, DFAS, satisfies the agency’s obligations in a timely fashion. See
Tichenor v. Department of the Army , 84 M.S.P.R. 386 , ¶ 8 (1999) (rejecting agency’s
argument that severance pay withheld by DFAS was not the result of the agency’s
action, on the ground that the agency used DFAS as its paying agent).
6
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 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 part icular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review w ith the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you subm it a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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 appro priate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
8
requirement of prepayment of fees, costs , or other security. See 42 U.S.C.
§ 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you s ubmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey will accept representation in a given case.
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 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.
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 | REMBERT_DANIEL_AT_1221_19_0723_X_1_FINAL_ORDER_2035325.pdf | 2023-05-25 | null | AT-1221 | NP |
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